As many districts planned to implement optional or flexible masking policies, the spread of COVID-19 and its Delta variant started to rapidly increase as the first day of school approached. In response, acting Health Secretary Alison Beam issued an Order on August 31 requiring face coverings within K-12 public and private schools and childcare facilities, effective September 7, 2021.
The Order cited studies showing how mask-wearing in school has contributed to lower levels of COVID-19 transmission among students and staff, but still allows in-person instruction with health and safety in mind. The Pennsylvania Department of Health emphasized that requiring face coverings to keep in-person instruction while COVID-19 and its Delta variant increasingly continues to spread, would balance the concerns for the mental health of the students.
Recently, lawsuits against school boards, school districts, and Alison Beam were brought attacking the constitutionality of this government-imposed order considering the COVID-19 pandemic and the start of a new school year.
Here is an update on some of the recently decided cases:
Warren County School Board
On September 13, 2021, Warren County School District implemented on optional COVID-19 mask policy in which parents could sign a waiver to exempt their children from Beam’s masking order without having to provide supporting medical documentation.
A lawsuit was filed against Warren County School District over its decision to make masks optional on buses and in school, and nine minors, by and through their parents, asked for injunctive relief in the Western Pennsylvania District Court in Erie against the Warren County School District and each of the school board’s nine members. The suit includes Civil Rights, ADA, and Rehabilitation Act claims, stating the district’s policy violates Constitutional substantive and procedural due process rights and will result in irreparable harm to the plaintiffs, staff and students, visitors, and Warren County School District’s community.
On October 5, U.S. District Judge Susan Paradise Baxter entered a temporary restraining order against the district to halt their opt-out policy. As of October 6, 2021, Warren County School District had to rescind their optional masking policy and enforce the Pennsylvania Department of Health’s universal masking order from August 31, 2021.
On August 16, 2021, the North Allegheny School District provided a health and safety plan for parents including a required masking policy. Shortly after, the school board decided to change the policy by a vote of 6-3 to an optional policy.
A lawsuit was filed by parents and students in late August against the district and school board following the board’s decision to make masks optional before the start of the school year. Subsequently, a federal judge entered an emergency restraining order and granted a preliminary injunction to reverse the board’s decision, holding the decision violated procedural due process rights of the plaintiffs, school district staff and students, visitors, and the surrounding community.
Tredyffrin/Easttown School District
Parents filed a lawsuit seeking to exempt their children from the Order, arguing that neither Governor Wolf’s administration nor Chester County District had the authority to mandate masking in schools. Parents referred to masks as “unapproved medical devices,” and argued the mask mandate violated their religious beliefs.
On September 29, 2021, a federal court rejected all three claims, specifically holding the Order did not violate religious beliefs. Masks are approved medical devices which have been shown to stop the spread of infectious diseases in schools, and the Department of Health did not over reach their authority when issuing the Order. The court reminded school districts of the importance of carefully evaluating and considering exemptions, especially those seeking a religious exemption. The parents were denied their request for a temporary restraining order to prohibit the district from enforcing the order.
Montoursville Area School District
In June, the school board president signed a document stating the district would be flexible in their COVID-19 mitigation efforts depending on what was ordered by the Department of Health. In mid-July, the school board passed a health and safety plan including an optional policy for masks. However, following acting Health Secretary Beam’s August 31st Order, Montoursville Area School District made it a requirement for students to wear masks.
Parents filed a complaint stating their children’s’ rights under the First, Fifth, and Fourteenth Amendments were violated and asked for a temporary restraining order and preliminary injunction. U.S. District Court Judge Matthew W. Brann denied their requests, holding the masking order did not infringe on the constitutional rights of the students or the parents. Additionally, the judge held they did not provide enough evidence to demonstrate how the mask mandate would result in irreparable harm.
The Commonwealth Court is considering two additional cases challenging acting Health Secretary Alison Beam’s authority to issue the Order, the process in which the Order was ultimately enforced by Governor Wolf’s administration, and the overall constitutionality of the Order itself. These cases are pending, and the Commonwealth Court is waiting for counsel on both sides to file supporting briefs.
It is equally important to mention another recent decision regarding a private school’s mandatory vaccination policy for students. While not mask-related, the mandatory vaccine policy was challenged based on religious freedom claims, and a Delaware County Court of Common Pleas judge ruled that having a “sincerely held religious belief” is not enough for a religious exemption. The judge held this religious discrimination claim following a student’s expulsion for refusing to get the COVID-19 vaccine was unlikely to succeed under the Pennsylvania Humans Relations Act, and the student failed to exhaust his administrative remedies first.
Bottom Line for Schools
These cases, and undoubtedly others to come, only reinforce what has been the responsible legal advice – that the Department of Health order is lawful and enforceable and that school districts are obligated to make good faith efforts to implement the order.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.