PHILADELPHIA – A group of parents from Chester County and Delaware County has taken legal action against its local school district, over the district implementing a health and safety plan which includes a mask mandate for students unless they receive a religious or medical exemption and regular COVID-19 testing.
David Governanti of Devon, Andrew McLellan of Malvern, Alicia Geerlings of Wayne and Sarah Marvin of Paoli first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 8 versus Tredyffrin/Easttown School Board, of Wayne.
“On or about Aug.23, 2021, the Tredyffrin/Easttown School Board adopted its ARP ESSER Health and Safety Plan including a COVID-19 Mitigation Plan. The COVID-19 mitigation plan requires students to wear masks in school, unless they receive a religious or medical exemption. The plan calls for weekly testing of students who choose not to wear masks, whether or not they show signs of illness or have had contact with someone diagnosed with COVID-19. The plaintiffs aver that the School Board has no legal authority to require students to wear masks or to test students without their consent,” the suit says.
“On Aug. 31, 2021, the Secretary of Health issued an order requiring students to wear masks in school ‘to prevent and control the spread of disease’ and ‘to protect the ability of our schools to continue to educate our children, and of our children to receive in person instruction, in the safest environment possible.’ The plaintiffs aver that the Secretary of Health and the Tredyffrin/Easttown School Board have no legal authority to require healthy students who are not infected to wear masks to prevent the transmission of communicable disease.”
The suit avers that the plaintiffs wish to apply for religious exemptions on behalf of their children, but they “cannot agree to the terms and conditions of the School District’s religious exemption form, and the order of Aug. 31, 2021 has no religious exemption.”
“Plaintiffs aver that cloth face coverings have not been approved by the FDA as medical devices for preventing the transmission of viruses, that the School District’s testing protocol also has not been approved by the FDA and that any emergency use approval of a medical device product or testing protocol requires informed consent, which has not been obtained. Plaintiffs aver that the medical exemption form approved by the School Board arbitrarily requires a blanket waiver of their children’s privacy rights under HIPAA without justification. The School Board should be enjoined from carrying out public health control measures that are not properly authorized under applicable law,” the suit states.
“Plaintiffs aver that their children have been turned away from school for refusing to wear a mask and have been deprived of their right to a free public education, have been made to wear a mask to receive a public education in violation of their religious beliefs and have been made to wear face coverings that have not been approved as medical devices and can cause respiratory harm. Plaintiffs aver that their children who seek a medical exemption from the mask requirement will be forced to share private medical information that has no relevance to their ability to wear a mask.”
The suit explains that each of the plaintiffs drove or sent their children to school on Aug. 30, 2021, and in each case the school refused to allow the children to attend class in person and sent them home, because the children did not want to wear a face mask and the parents did not agree to the terms and conditions of the school district’s religious exemption form.
The suit adds there is no Pennsylvania statute or regulation that expressly or implicitly authorizes local education agencies to mandate the universal masking of students in school, and the Chester County Commissioners have not enacted an ordinance requiring students to wear masks in school.
“The Aug. 31, 2021 order contains several exemptions for secular activities but contains no religious exemption from the requirement to wear masks. As a result, the August 31, 2021 on its face favors secular activities such as sports, musical performance, and physical education over conscientious religious objections to wearing masks,” the suit states.
“Plaintiffs aver that the disparate treatment of conscientious religious objectors cannot be justified by a compelling state interest where the state’s rules and regulations do not authorize the Secretary of Health to order persons to wear masks who are not already infected with, or under treatment for, a communicable disease and where secular exemptions are recognized. Before Aug. 31, 2021, the Tredyffrin/Easttown School District recognized a religious exemption from the mask requirement and prepared a form which it required parents to sign to receive a religious exemption.”
For counts of lack of legal authority to require wearing masks, religious discrimination and face coverings may not be required without informed consent, the plaintiffs are seeking injunctive relief.
The plaintiffs are represented by Gary M. Samms of Obermayer Rebmann Maxwell & Hippell, in Philadelphia.
The defendants are represented by Brian Richard Elias, Christina Gallagher and Deborah R. Stambaugh of Wisler Pearlstine, in Blue Bell.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-04024
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com