PHILADELPHIA – A federal judge has denied an injunction sought by a group of parents from Chester County and Delaware County in legal action pitting them against their local school district, over the implementation of 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 said.
“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 averred 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 stated.
“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 explained 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 added 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 stated.
“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.”
UPDATE
After several phone conferences with counsel and both the plaintiffs and a District official testified at a hearing on Sept. 14, U.S. District Court for the Eastern District of Pennsylvania Judge Mitchell S. Goldberg ruled on Sept. 27 that the “extraordinary remedy” of granting the injunction would not be appropriate.
“Having heard the evidence presented at the hearing, and considering the additional evidence plaintiffs propose to offer, I find that plaintiffs cannot meet their burden to show that they are reasonably likely to succeed on the merits of their claims. Absent such a showing, plaintiffs are not entitled to the ‘extraordinary remedy’ of a preliminary injunction,” Goldberg said.
Goldberg explained federal law takes precedence in the area of religion, and “the District’s obligation to protect students’ legitimate constitutional right to practice their religion cannot be set aside by an order from the Secretary of Health of Pennsylvania.”
“But the fact that the District’s policy may raise constitutional issues does not automatically provide plaintiffs with a clear path to successfully challenge that policy. Before a person can obtain relief from government action based on religious objections, that person must come forward with a sincere religious belief that is contrary to the challenged action,” Goldberg said.
Goldberg said that the belief in question must be “sincerely held and religious in nature, in the claimant’s scheme of things” and “it is therefore not sufficient for plaintiffs to hold a ‘sincere opposition’ to mask-wearing; plaintiffs ‘must show that [their] opposition’ to mask-wearing ‘is a religious belief.”
At the prior hearing, the plaintiffs explained they felt that mask-wearing “dishonors God to cover our faces”, that is “immoral to harm the body, and masks harm the body.” But these were arguments that did not land favorably with the Court.
“Based on this precedent and the testimony presented to me at the Sept. 14, 2021 hearing, I conclude that, although each of the four plaintiffs has a passionate objection to wearing masks, none of them has a belief that warrants First Amendment protection,” Goldberg said.
The plaintiffs requested that the Sept. 14 hearing continue, so that they may ask additional questions of the District representative and offer the testimony of a physiologist regarding the supposed unsafe effects of masks.
“Plaintiffs propose to offer the testimony of Shannon Grady, a physiologist, that the concentration of carbon dioxide under a mask exceeds limits ordinarily applicable to indoor air quality. Even if I were to hear and accept this testimony, at this stage of the proceedings it would not change my ruling on plaintiffs’ claims and their request for an injunction,” Goldberg stated.
“Despite my directive that they do so, plaintiffs have not explained how the concentration of carbon dioxide under a mask is relevant to any of the three claims they have raised. Whether masks are overall helpful or harmful in light of all potential health effects is a complex policy question that belongs to policymakers like the Secretary and the District, and plaintiffs have not advanced a claim that these policies are so arbitrary as to amount to a violation of their rights.”
Goldberg then denied the plaintiffs’ request for an injunction.
“I find it unnecessary to rule on the admissibility of the further testimony plaintiffs propose to offer because the proffered testimony would not affect whether plaintiffs have met the standard for preliminary injunctive relief,” Goldberg said.
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