Let’s wait for court decision on mask mandate, school board says

As people approached the doors to enter last Thursday’s Delaware Valley school board meeting, a police officer asked those without masks to sit on the right side of the auditorium.

This allowance contravened Pennsylvania Governor Tom Wolf’s recent order that all people wear face masks inside school buildings. And it illustrated the divide that continues to roil the school community.

Most people without masks at the meeting did as the police officer told them to do, while other unmasked people sat in other parts of the high school auditorium. The 15 or so people who wore masks were seated at socially distanced intervals on the left in the auditorium.

Wolf’s order, which went into effect on Sept. 7, aims to reduce the spread of the highly contagious Delta variant at a time when children under 12 are not yet eligible for the vaccine, and to eliminate the need for school closings and quarantines. Superintendent John Bell said Delaware Valley has seen 27 cases of Covid-19 since the start of school on Aug. 30, with 222 close contacts traced and 105 students quarantined.

On Monday, Sept. 20, the school district reported a total of 39 cases, with most cases at the high school (13) and Dingman-Delaware Elementary School (11).

Bell said students and staff members who wear masks or are vaccinated do not have to quarantine, even in cases of close contact.

The school district opened with a mask-optional policy, offering parents a chance to submit an opt-out form for their children. The policy “give parents about three weeks to start lining up doctors appointments to seek the mask exemption,” Bell said.

Earlier that week, DV posted a new form for mask exemptions valid for the rest of the school year. Bell said school attorneys said the same form should be used for other kinds of medical exemptions, to show that the district consistent and non-discriminatory in enforcing the mandate.

On Oct. 1, all students entering the school will either wear a mask or be exempted with a form signed by a doctor and approved by the school. Bell said from 85 to 91 percent of students, depending on the building, are masked already, Bell said.

“Once the state makes the masks mandatory, we are obligated to follow them,” Bell said.

President: Wait for the court

The anti-mask mandate attendees grew agitated. The school board president, Jack Fisher, repeatedly reminded them to remain calm and wait for the court’s decision. (The Republican leader of the state Senate and a group of parents filed a lawsuit on Sept. 3 seeking to overturn Wolf’s mask mandate.) At the end of the meeting, Fisher thanked them for allowing the meeting to proceed without interruption.

“All of us who have state certificates or state licenses are obligated to follow the rules of the state,” he said. “Board members could be held personally liable under liability insurance, if they didn’t adhere to the order. So this is very important for the public to know. So when the state put the mask mandate in place, it became a state issue, not a local one.”

Bell noted that many people believe the state has overstepped its authority. He said the school’s advisors and attorneys say DV should let the legal challenges run their course.

School board members Dawn Bukaj questioned the federal government’s Protecting Students With Disabilities Act.

To be protected under Section 504 of this law, according to the U.S. Department of Education, a student must “(1) have a physical or mental impairment that substantially limits one or more major life activities; or (2) have a record of such an impairment; or (3) be regarded as having such an impairment.”

To applause, Bukaj said she could find no requirement that medical proof be presented before the school grants an exemption. She asked the audience to hold its applause. “This is not a rally,” she said.

She asked the audience to listen to the answers so that the board can do some business it hasn’t been able to get to at the last couple of meetings when the mask debate dominated the discussion. “It’s critical that this board gets down to the business of what we need to do, so I’d really appreciate it,” she said.

Bukaj said she understood Bell’s point that consistency is needed. “We’re learning more as we go,” she said.

But then she took up Section 504 again and asked for a vote. “I don’t see that we have the ability legally to require medical proof for an accommodation,” she said. “That being said, everyone who was denied an accommodation through a 504 has the right for an appeal, and that could go to due process. I think that is overkill, unnecessary, and certainly not within the spirit of the department of health’s order. So I would like to make a motion that we follow the DOH’s order with respect to mask exemptions and immediately terminate the requirement for 504 medical proof.”

School board member Brian Carso, who, before the governor gave his order, unsuccessfully proposed a temporary mask mandate for DV, said the school does not have the authority to adopt Bukaj’s proposal.

“We don’t actually draft a 504 plan for kids,” he said. “It’s just that they have the same exemption as they would for a medical exemption as they would under a 504, under an IEP (individual education program) or under any other ADA (Americans with Disabilities Act) issues or a mask mandate that people got last year as well. So we’re not going to issue an actual 504, but we’re following the same criteria that we’ve used in the past for these various medical accommodations or exclusions.”

Bukaj said Section 504 “more goes to accommodation for something that disrupts your ability to learn in the school setting.” She said she disagreed with Carso that the education department requires medical proof, “so I am putting forward a motion to vote on it.”

Carso said, “Just so you know, you’ll be voting against the education firms that we work with.”

Bell said allowing a medical exception based solely on a parent’s statement effectively turns a mandate into an option, “thus undermining the goal and intent of the order.” If a large number of exclusions are based on parents’ statements alone, the school board and administration may be having to defend themselves in a willful misconduct suit.

Carso said he’s been a lawyer since 1992 and taught constitutional law for the last 16 years. The issue should not be litigated in the auditorium, he said. “There are professionals who study education law, which is complex,” he said. “They are experts. They have advised us. We need to follow that law. If the rest of my colleagues want to put the district in legal jeopardy, you can do that on your own.”

He said DV could lose its insurance, with tax increases to follow.

“We don’t have the authority to remake the laws,” Carso said, to boos from the audience.

Fisher tabled Bukaj’s proposal until the next meeting.

Ashley Zimmerman, the school board solicitor, said the administration has until Sept 23 to file a response brief to the suit arguing that the mask mandate is illegal.

’Like watching the walking dead’

The mask mandate opponents addressing the board gave various reasons for their position. They said they were not anti-mask but pro-freedom. They said the decision about what is medically best for students shouldn’t be left to schools, and that parents have lost faith in the district.

They said anxious children do not understand what their teachers are saying through masks. They said children with auditory challenges aren’t able to understand their teachers by watching their mouths.

The children have trouble breathing and their eyeglasses fog when they’re wearing masks, they said. They lose important socialization skills, they said. They argued that the mask requirement is harassment and discriminatory when there’s no written policy to back it up.

One man said watching kids wearing masks was “like watching the walking dead.” Another parent complained about the anonymity and “loss of self” among children wearing masks.

Another parent said her straight A student has a lowered immune system as a result of wearing masks all last year. But his doctor said he couldn’t get a mask exemption because he didn’t have a chronic condition, the parent said.

The public’s comments sometimes ranged far from the mask debate into other national culture war hot buttons, from the joint chiefs of staff being investigated for treason, to critical race theory, to social justice themes in textbooks.

Fisher eventually ended the meeting even as others still awaited to speak. He said he was in his mid 70s and wears a mask out of courtesy for those who might be concerned about Covid.

He said critical race theory is not being taught at DV. A speaker suggested the curriculum committee put extra copies of proposed new books in the local library before they are adopted so that community members can look through them. Fisher said he would bring this up at the next budget meeting.

A man who identified himself as a 13-year combat Air Force veteran said he wants DV students to be independent thinkers, not mask wearers and followers.

“Let’s get one thing clear here,” he said. “We will not get violent. We will not threaten the school board or their families. However, we’re not going anywhere. We will not be silenced. We will not comply with this mask mandate. We will no longer comply with contact tracing. We will bring our students to school without masks.”

Replacing Jack O’Leary

Bell said the school board has 30 days to pick a replacement for longtime member Jack O’Leary, who earlier this month resigned without explanation in the middle of his four-year term. Otherwise, a Pike County judge will pick the new member, he said.

Bell said candidates may be interviewed in a public session.

Fisher said he wanted a list of candidates with a short resume for each so that board members could cull them at the next meeting. The board will hold its work session to Oct. 7 to stay within the 30-day limit, he said.

The new appointee will serve through 2023.