Federal court sides with DV school board on mask mandate

Milford. The judge said “whether intentionally or not,” the state health department does not require medical proof for student mask exemptions. But, he said, the school must exhaust every other alternative to face coverings before granting a waiver, and that parents who attest to false information on the exemption form would be subject to penalty.

| 16 Nov 2021 | 01:17

Delaware Valley is free to allow students in its buildings without masks, as long as their parents sign a waiver testifying that masks would cause or worsen a medical condition.

Ruling on a suit brought against the school board by five DV parents, Robert D. Mariani of the U.S. District Court for the Middle District of Pennsylvania agreed with the board that the order by Pennsylvania Acting Secretary of Health Alison Beam “does not expressly require” that a mask exemption be backed up by medical proof.

“Whether intentionally or not,” Judge Mariani wrote in his decision Thursday, “the state’s order left the school districts with the discretion to determine whether they wanted medical documentation when considering whether to grant a request for an exception to the masking mandate.”

After the decision, DV parents received a robocall informing them that the district will return to its policy of accepting parental waivers without medical proof. In an email to the Courier on Nov. 16, Dr. John Bell, the superintendent, said of student masking at the school, “While I don’t have a total count for you, it is somewhere around the 15 percent that we saw previously.”

Thursday’s court decision does not mean that parents and the school district can do whatever they want. Mariani said parents who make false statements on DV’s exemption form are “subject to the penalties relating to unsworn falsification to authorities.”

Also, he said, the school district must exhaust every alternative to face coverings, including face shields, before granting an exception. In addition, parents and the school district are responsible for safeguarding the health and safety of the children under their care, including protecting them from Covid-19 amid the ongoing pandemic.

Mariani said the plaintiffs presented “substantial evidence” to support their claim that the board’s decision “is not supported by scientific evidence and...places students at a higher risk” of infection. The determination of whether a child should go maskless “is best made, and in some circumstances can only be made, by a licensed medical provider,” he said.

The judge was reassured by the testimony of two school board members, Dawn Bukaj and Jack Fisher, that they understood not only the grave danger and contagious nature of Covid-19, but also the efficacy of masking. Bukaj said “Covid is real” and “very infectious,” and that a student who contracts Covid “can get very sick from it, if they have underlying conditions.” Fisher in his testimony said he believes masking helps prevent the transmission of Covid-19, which is why the school board agreed to the health department’s order.

Mariani was also persuaded by Bukaj’s testimony that her decision was heavily influenced by parents who were unable to get medical notes from their doctors. She claimed that she personally knew of instances in which doctors were directed by their medical group not to give mask exemptions, “because of liability issues, I would assume.”

But he issued a strong warning for parents tempted to sign exemption forms in bad faith. It is beyond doubt, he said, “that the submission by a parent/guardian of a medical exception containing deliberately false statements would violate that duty by wrongfully subjecting the child, and others in contact with him/her, to greater exposure to, and infection by, the Covid-19 virus.”

In September, after the health department issued its school masking order, Superintendent John Bell said only a few students would qualify for an exemption.

Another day, another court decision

The decision in federal court came on the heels of a decision in state court to throw out the health secretary’s mask mandate for K-12 schools and child care facilities, saying the she lacked the authority. The Wolf administration put the decision on hold by filing an immediate appeal.

On Wednesday, Commonwealth Court sided 4-1 with the ranking Republican in the state Senate and others who sued to challenge the masking order that took effect in early September as a result of the coronavirus pandemic.

Within hours of the decision, it was put on hold when Health Department lawyers filed an appeal to the state Supreme Court.

Judge Mariani on Oct. 20 responded to the DV parents’ lawsuit by instituting a temporary restraining order until a hearing on Oct. 28, when he extended the restraining order for another 14 days.

Charles Kannebecker, the lawyer representing the DV school board, responded to the state court decision by asking Mariani to vacate his temporary restraining order. Because the state court has now ruled that the acting secretary’s Aug. 31, 2021, order is invalid, he wrote, “there is no legally valid order for Defendants to comply with. There is no basis for Defendants to comply with an order that a Pennsylvania court has ruled is not only void, but an order that a Pennsylvania court has ruled was void from its inception and never valid to begin with.”

The lawyer for the plaintiffs, Kenneth R. Behrend, said the defendants do not have standing to challenge the temporary restraining order in their individual capacity. “There has been no change in the law as a result of the Pennsylvania Commonwealth Court’ s decision since the Secretary of Health has appealed the Commonwealth Court’s November 10, 2021 Order to the Pennsylvania Supreme Court, and the decision of the Commonwealth Court is stayed until resolution by the Supreme Court,” he wrote in his response. “The individual Defendants have neither alleged any prejudice or that they suffered any harm as a result of this Court’s issuance of the temporary restraining order.”

DV has reported 88 cases of coronavirus infection in September and 100 in October. For the first 12 days of November, that number is 55.

The Wallenpaupack Area School District has hewed to the health secretary’s masking mandate since it was ordered and emphasized the governor’s appeal to the state court decision. “Schools should continue to observe the school masking order throughout the duration of the court’s proceedings,” went a message posted by Superintendent Keith E. Gunuskey. “Therefore, masks are still required in all school buildings and transportation.”

‘No opinion regarding the science’

The judges on Wednesday said Secretary Beam’s mandate did not comply with the state’s laws about reviewing and approving regulations and was adopted without an existing disaster emergency declared by the governor.

The state’s disease control law does not give health secretaries “the blanket authority to create new rules and regulations out of whole cloth, provided they are related in some way to the control of disease or can otherwise be characterized as disease control measures,’’ wrote Judge Christine Fizzano Cannon, a Republican, for the majority.

She said the judges “express herein no opinion regarding the science or efficacy of mask-wearing or the politics underlying the considerable controversy the subject continues to engender.’’

“The secretary of health’s authority is clearly outlined in existing law,’’ said Wolf press secretary Beth Rementer. “The Department of Health has directed counsel to file an appeal today. Filing of the appeal will immediately stay the Commonwealth Court’s decision.’’

Editor’s note: The Associated Press has contributed to the reporting of this story.