SCRANTON – A quintet of anonymous parents to disabled and medically vulnerable children has sued Delaware Valley School District and its School Board, over their decision to permit parent-backed student exemptions to the state’s mask mandate for Pennsylvania schools.
John Does 1-2 and Jane Does 1-3 filed suit in the U.S. District Court for the Middle District of Pennsylvania on Oct. 18 versus the Delaware Valley School District and its School Board members Dawn Bukaj, Brian Carso, Jessica Decker, Jack Fisher, Cory Homer, Pam Lutfy, Felicia Sheehan and Rosemary Walsh.
The suit seeks to rescind Delaware Valley School District’s recently-approved policy to opt out of the state mask mandate on school grounds for students, with only a parental signature. The plaintiffs also want to do away a related tenet which allows parents to exempt their children from the mandate without providing medical records.
While a mask mandate for schools order from Pennsylvania Department of Health Secretary Alison Beam went into effect on Sept. 7, the Delaware Valley School District Board voted 5-1 on Sept. 28 in favor of letting parents submit a signed form to exempt students from Beam’s order.
The exemption form was due by Oct. 1 and did not need a signature from a doctor.
“The School Board’s vote permits a voluntary opt-out of masking for any child based purely upon parental choice. Such an opt-out – exercised by large numbers of students – is so gaping that it has nullified the rights of students with disabilities, students under 12 years of age and all other students and employees, who require masking of others in order to enjoy safe, fundamental, non-discriminatory access to their public institutions. Accordingly, court action is necessary to institute a mask mandate without a purely voluntary opt-out. This will eliminate the barrier to safe access created by the School Board’s vote, by modifying rules, policies and practices,” the suit says.
“Defendants’ actions have pitted children against children, while placing the health and safety of medically vulnerable children with disabilities in danger, as well as children under the age of 12 and the rest of the children and employees while in school and riding on school buses. Defendants’ policy violates the federal rights of those children under (1) The Americans with Disabilities Act of 1990; (2) Section 504 of the Rehabilitation Act of 1973; (3) The Center for Disease Control’s Jan. 29, 2021 order; (4) the PADOH’s Aug. 31, 2021 order; (5) the Pennsylvania Department of Education’s Sept. 10, 2021 directive; (6) the United States Constitution; (7) the Pennsylvania Constitution; (8) the civil rights of plaintiffs under 42 U.S.C. Section 1983 and (9) the Equal Protection Clause.”
The defendants filed a motion to dismiss the case for lack of jurisdiction on Oct. 28.
“The underlying issue in this case is whether medical documentation is required to establish medical exceptions to mask wearing. Medical documentation is not required for medical exemption under the Secretary’s Aug. 31, 2021, order, is not required for medical exemption under the ADA, under the Rehabilitation Act and is not required under law anywhere,” the dismissal motion stated, in part.
“Initially, the complaint must be dismissed because the Secretary’s Aug. 31, 2021 order does not require parents to provide medical documentation for the District to grant an exemption. Second, the complaint must be dismissed because the Secretary’s Aug. 31, 2021, order is void ab initio. The Secretary’s Aug. 31, 2021, order violates Pennsylvania law and lacks regulatory support.”
The defendants countered that the plaintiffs “have failed to exhaust administrative remedies under the IDEA”.
“Plaintiffs’ claims are ultimately based upon a denial of free access to public education. Accordingly, federal law requires that plaintiffs must exhaust their claims prior to filing suit in federal court. Fourth, defendants Jack Fisher, Jessica Decker, Felicia Sheehan, Dawn Bukaj, Cory Homer and Pam Lutfy cannot be held liable under Title II of the ADA or the Rehabilitation Act because they are not ‘public entities’ or ‘programs or activities receiving federal financial assistance’ for the purposes of either statute,” the dismissal motion stated.
“Fifth, plaintiffs’ constitutional claims must be dismissed because plaintiffs have failed to allege any constitutional rights that defendants have violated. Finally, this Court must dismiss Counts III through VI pursuant to the Pullman Abstention Doctrine. Accordingly, for the aforementioned reasons and for the reasons stated in detailed in the accompanying brief in support, this Court should grant defendants’ motion to dismiss and dismiss plaintiffs’ claims.”
For counts of disability discrimination in violation of the Americans with Disabilities Act of 1990, violation of Section 504 of the Rehabilitation Act of 1973, violation of substantive due process under 42 U.S.C. Section 1983 and violation of free association under the First, Fifth and Fourteenth Amendments to the U.S. Constitution, violation of rights under the Pennsylvania Constitution, the plaintiffs are seeking a long list of reliefs:
• For the Court to assume jurisdiction of the action;
• For the Court to vacate and set the defendants’ rescission of the CDC and PADOH adherent policy, as well as any other action taken by defendants to rescind the universal masking policy;
• For the Court to declare that the defendants’ health and safety plan dated July 16, 2021 is void and without legal force or effect;
• For the Court to declare that the failure to abide by CDC or PADOH and PDE actions taken by defendants in violation of the ADA and Section 504 are contrary to the laws of the United States;
• For the Court to declare that the failure to abide by CDC or PADOH and PDE actions taken by defendants to void the universal masking policies are in violation of the United States and Pennsylvania Constitutions and contrary to the laws of the United States and Pennsylvania;
• For the Court to declare that the rescission of the policy following CDC and other government entity guidelines, including the PADOH and PDE are invalid actions taken by defendants to ignore a mask policy are arbitrary, capricious, based on ignorance due to failure to inquire into facts, otherwise not in accordance with law and without observance of required procedures;
• For the Court to temporarily restrain, as well as preliminarily and permanently enjoin defendants, their agents, servants, employees, attorneys and all persons in active concert or participation with any of them, from implementing or enforcing a policy that violates the ADA or Section 504 and from taking any other action to enforce such policy that is not in compliance with applicable law;
• For the Court to temporarily restrain, as well as preliminarily and permanently enjoin defendants, their agents, servants, employees, attorneys and all persons in active concert or participation with any of them, from implementing or enforcing a policy contrary to the guidance of the CDC and PADOH for COVID-19 relief, including not only orders, but also recommendations for universal masking made by the CDC, the PADOH and/or Wayne Memorial Hospital so long as the County is in the substantial or high-risk categories for COVID-19 infection and from taking any other action to rescind such policy that is not in compliance with applicable law
• For the Court to award plaintiffs their reasonable attorney’s fees, costs and expenses pursuant to 42 U.S.C. Section 1988 and grant such other and further relief as may be just, equitable and proper, including without limitation, an award of attorney’s fees and costs to plaintiffs.
The plaintiffs represented by Kenneth R. Behrend and Kevin M. Miller of Behrend Law Group in Pittsburgh, plus Vern S. Lazaroff of Lazaroff & Fetzko in Port Jervis, N.Y.
The defendants are represented by William J. McPartland of Marshall Dennehey Warner Coleman & Goggin in Moosic and Charles Kannebecker of Weinstein Schneider Kannebecker & Lokuta, in Milford.
U.S. District Court for the Middle District of Pennsylvania case 3:21-cv-01778
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com