Parents’ lawyer asks judge to consider new information in DV mask case

Five Delaware Valley parents have asked the court to consider new information obtained since they first sued the school for relaxing its rules on mask waivers.

The brief filed earlier this month by Ken Behrend, of Behrend Law Group, LLC, says the students represented in the lawsuit did suffer actual harm, contrary to what a federal judge had earlier decided. It asks the judge to consider additional information provided by the five Doe children after their original complaint was filed in October. The children are represented by their parents, who appear as five “Jane Does” in court documents to protect against backlash in this hot community debate.

Two of the children were exposed to Covid-19 after the court lifted its temporary injunction against the school’s waiver decision, according to the brief. In the resulting quarantine in two separate households, each exposed child had to be separated from their families, which, the brief argues, violates the families’ Constitutionally protected right to freedom of association. Breaking up families supports the “state-created danger claim” denied in the earlier ruling, says the brief.

The state-created danger doctrine provides the basis for a claim when a government entity, like a school district, creates a danger that results in injury. Behrend said DV has 14 days to respond before the judge makes a decision on the motion.

In November, Robert D. Mariani of the U.S. District Court for the Middle District of Pennsylvania agreed with the school board that the order by Pennsylvania Acting Secretary of Health Alison Beam “does not expressly require” that a mask exemption be backed up by medical proof. He also said that the plaintiffs may have been more exposed to Covid-19 in attending a school where some students are exempt from wearing masks without medical proof. But he dismissed this and the parents’ other concerns about bullying or retribution, saying there is no evidence they have actually occurred. “The harms alleged by Plaintiffs, while certainly possible and perhaps likely, consist only of future potential or threatened harms,” he wrote.

Lawyers for DV and DV board of education did not respond to a request for comment by press time.

The state mandate that masks be worn by all people in all Pennsylvania school buildings no longer applies. Face masks are now optional in school buildings statewide.

Editor’s note: This story has been updated to correct a typo.