PHILADELPHIA – A group of Bucks County parents who litigated with the Central Bucks School District to provide reasonable accommodations to their children, who are disabled students, by implementing a COVID-19 health and safety plan aligned with current federal, state and local guidance, have dropped their suit.
The parents and their student children, proceeding from various communities in Bucks County due to alleged threats made, first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 27 versus Central Bucks School District, of Doylestown. A few days later, authorities issued a face mask mandate for students state-wide - a decision that led the judge hearing the lawsuit to put a hold on the case.
“Plaintiffs are each qualified individuals with a disability under Section 504 and the ADA. For each student who has either a Section 504 Plan or IEP, defendant has acknowledged that that student is a qualified individual with a disability,” the suit says.
“On July 27, 2021, the School Board approved a health and safety plan for the 2021-2022 school year that failed to include any COVID-19 mitigation measures. The Board-approved health and safety plan included a provision that masking for all staff and students is optional. The July 27, 2021, health and safety plan also fails to provide for required social distancing and contact tracing.”
The students in question are afflicted with cancer, diabetes, epilepsy, attention deficit hyperactivity disorder, learning disabilities, a neurogenetic disorder, asthma, autism, Down syndrome and cystic fibrosis.
On Aug. 5, 2021, the Centers for Disease Control and Prevention revised its guidance for COVID-19 prevention in K-12 schools, recommending universal indoor masking by all students age 2 and older, staff, teachers and visitors to K-12 schools, regardless of vaccination status, plus at least three feet of social distancing.
The suit added that the American Academy of Pediatrics recommends, “Special considerations and accommodations to account for the diversity of youth should be made, especially for populations facing inequities, including those who are medically fragile or complex, have developmental challenges, or have disabilities.”
At an Aug. 25 School Board meeting, the suit says the School Board refused to approve the Superintendent’s revised health and safety plan, which would have include universal indoor masking in buildings and transportation, contact tracing and other mitigation measures, for the first day of school on Aug. 30.
“Defendant’s refusal to provide reasonable accommodations in the form of an appropriate health and safety plan puts plaintiffs (namely, children with disabilities) at risk of death and debilitating illness from COVID-19. Defendant’s refusal to provide reasonable accommodations for students with disabilities thereby excludes plaintiffs from their education,” the suit states.
“Plaintiffs accordingly bring this action for both injunctive relief and prevailing party fees to remedy defendant’s violations of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.”
Central Bucks School District filed a motion to dismiss on Aug. 21, arguing that all the plaintiffs’ claims showed was that “their grievances arise from an alleged failure to accommodate their conditions and fulfill their educational needs.”
“Plaintiffs’ claims can be summarized and viewed as an alleged failure, current or prospective, by defendant to provide a free and appropriate public education. Such a claim is cognizable and may be brought under the Individuals with Disabilities Education Act (IDEA),” the dismissal motion stated.
“As such claims are cognizable under the IDEA, they are subject to exhaustion. Plaintiffs have not pleaded an exhaustion of administrative remedies, as none has taken place. Plaintiffs have failed to exhaust their statutorily-mandated administrative remedies. As such, the Court is without subject matter jurisdiction over these claims.”
The District also argued that the plaintiffs’ claims are moot, due to the issuance of a statewide school mask mandate order on Aug. 31 from acting Pennsylvania Department of Health Secretary Alison Beam, which required each teacher, student, staff or visitor working, attending or visiting a school to wear a face covering indoors, regardless of vaccination status, beginning Sept. 7.
However, that same statewide mask mandate order was later overruled by the Supreme Court of Pennsylvania on Dec. 10 and Beam left public office weeks later.
UPDATE
On Jan. 19, the plaintiffs opted to dismiss their lawsuit, an action to which the defendant consented.
“Plaintiffs in the above-captioned file this stipulation of dismissal pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure. The parties, by and through undersigned counsel, hereby stipulate to the dismissal of the matter,” the dismissal notice read.
The plaintiffs were represented by Adrianna A. Cherkas, Michael D. Raffaele and Kathleen M. Metcalfe of Raffaele & Associates, in Bryn Mawr.
The defendant was represented by Douglas C. Maloney, Jeffrey P. Garton and Sean M. Gresh of Begley Carlin & Mandio, in Langhorne.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-03846
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com