Federal judge sides with DV parents suing for mask mandate

A federal judge has ordered the Delaware Valley School District to comply immediately with the health secretary’s mandate that all people in Pennsylvania school buildings wear masks.

Judge Robert D. Mariani, U.S. District Court for the Middle District of Pennsylvania, on Oct. 20 responded to a lawsuit brought by five DV parents by instituting a temporary restraining order until a hearing scheduled for Thursday, Oct. 28. A DV parent told the Courier that the school sent out a robo-call telling parents that their children must be masked until the 28th.

The judge wrote in his order that the defendants in the case, the school district and its school board, “are enjoined and restrained from failing or refusing to comply with the Pennsylvania Department of Health August 31, 2021, Order requiring universal masking with defined exceptions..., and the September 21, 2001, Directive from the Pennsylvania Department of Education reinforcing with School Districts that parents do not have an option to except their children from the Department of Health Order unless the parental waiver form is supported by medical proof that the student requires an accommodation from a health risk to the student caused by mask wearing.”

Five Jane Does are suing the district and all members of the school board over DV’s recent decision to evade the state’s mask mandate amid a surge of the Delta variant and pediatric Covid cases. The attorney representing the parents, Kenneth R. Behrend, told the Courier that he has succeeded in getting restraining orders against two other schools in Pennsylvania.

The civil lawsuit, filed Oct. 18 in federal court, says the plaintiffs are “all school-age children, some of whom have disabilities that render them medically vulnerable to Covid-19 and others who are under age 12 and are ineligible to be vaccinated,” and that their parents are seeking a court injunction on their behalf and “similarly situated children with disabilities who are at severe risk of illness and injury due to their disabilities.”

The suit says it also represents children above age 12 “who may have normal health and do not want to be exposed to the increased risk of possible infection.”

The suit says that the board knew about the Centers for Disease Control’s Jan. 29 order requiring universal masking on school buses, the Pennsylvania Department of Health’s Aug. 31 order requiring masking in the school buildings, and the Pennsylvania Department of Education’s Sept. 10 directive that parents do not have the option to sign a waiver form to exempt their children from the order unless “supported by medical documentation which provides verifiable medical proof that the student requires an accommodation from a health risk to the student caused by mask wearing.” Yet, the suit says, the school board went ahead and voted 5-1 on Sept. 28 to allow parents to opt-out with only a DV-provided waiver form and without providing medical documentation.

“Court action is necessary to institute a mask mandate without a purely voluntary opt-out,” says the suit.

Wayne Memorial’s medical director supports suit

The suit includes an affidavit by James Cruse, M.D., medical director of Wayne Memorial Community Health Centers, who helped implement the DV’s Covid response plan. He says there is no evidence that healthy children are harmed by wearing masks, but that much harm can come from classroom transmission of the virus.

“There have been clusters of outbreaks in our local schools where the epidemiological evidence shows that the infections were transmitted in the classroom (due to the fact that students sitting near each other in the classroom tested positive within a few days of each other),” Dr. Cruse says in his affidavit. “There have been cases indicating that those students then brought the infection home to their family members who subsequently become seriously ill.”

He said “enforced masking works,” and that exemptions should be “rare and unusual,” only in cases like “severe developmental disability and diagnosed panic disorder with agoraphobia” that requires a psychiatrist’s care. He said asthmatics are at higher risk of severe illness and that asthma is “generally not a reason for a mask exemption.”

The parents are remaining anonymous for fear of retribution by the school board, and harassment by community members and other students, and also to protect their businesses. The district and school board “have pitted children against children,” while placing them in danger, the suit says.

A GoFundMe page titled “Help with legal fees to enforce DOH Mask Mandate” (tinyurl.com/tf4rkf4d) is taking donations to help with legal fees. As of Wednesday it had raised more than half of its $8,000 goal.

On Sept. 30, U.S. Middle District Court Judge Matthew W. Brann upheld Pennsylvania’s school mask mandate. He denied an injunction against the mandate sought by parents in the Montoursville Area School District. “The Constitution does not guarantee students a right to attend school without wearing a mask and being required to do so neither inflicts irreparable harm nor in any way violates students’ right to freely associate and assemble with others,” Brann said.

Delaware Valley has reported 143 positive cases of the coronavirus among students and staff from the start of the school year through Oct. 15.

Editor’s note: This story has been updated from the original to include the court decision.