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Parents sue Delaware Valley School District over opt-out option for masking

Pocono Record logo Pocono Record 10/20/2021 Brian Myszkowski, Pocono Record
The Delaware Valley School Board voted on Tuesday, Sept. 28, to pass a motion allowing students to opt out of Governor Tom Wolf's mask mandate with a parent or guardian-signed note, rather than a doctor's exemption. A lawsuit was filed against the district and eight members of the board of directors on Monday in an attempt to reverse the opt-out option. © Hannah Phillips The Delaware Valley School Board voted on Tuesday, Sept. 28, to pass a motion allowing students to opt out of Governor Tom Wolf's mask mandate with a parent or guardian-signed note, rather than a doctor's exemption. A lawsuit was filed against the district and eight members of the board of directors on Monday in an attempt to reverse the opt-out option.

A party of anonymous parents is pursuing legal action against Delaware Valley School District and their board over a contentious option to allow masking exemptions for students.

According to a claim filed by five unnamed individuals against the district and eight members of the board of directors filed on Monday, the goal of the suit is to reverse the recently-approved option to opt out of student masking mandates on school grounds with just a parental signature.

In addition, the plaintiffs are seeking a temporary restraining order and a preliminary injunction that would halt the board from permitting parents to exempt their children from the mandate without providing medical documentation.

On Sept. 28, the board voted 5 to 1 in favor of allowing parents to submit a signed form to exempt their child from a statewide order that went into effect on Sept. 7, mandating that students, staff and visitors at all K-12 schools and child care facilities wear a mask while inside school buildings. The form itself, which was required to be submitted by Oct.1, did not require a signature or input from a medical professional.

Board President Jack Fisher, Vice President Jessica Decker, Dawn Bukaj, Pam Lufty and Felicia Sheehan voted for the exemption policy, and Rosemary Walsh against. Board member Brian Carso was not present at the meeting, and Cory Homer arrived too late to cast a vote.

Related: Delaware Valley School District approves mask exemptions for students without doctor input

Of interest: Pocono politicians and school officials talk Wolf's mask mandate

At the time of the vote, Fisher said that the policy did not violate the Department of Health’s mandate, rather, it allowed for parents of students with particular conditions to be accommodated fairly.

"We are in fact following the DOH rule that allows parents to make that decision that their child has a condition," Fisher said. "What it doesn't allow is for parents wanting to make a civil protest and say 'I don't want my child to obey the DOH'. That is not a condition and those parents will be told they are not complying with the DOH."

Kenneth R. Behrend of the Behrend Law Group LLC, who represents the plaintiffs, said that the district was essentially allowing parents an unwarranted way to circumnavigate the statewide mandate, putting other students at serious risk of contracting COVID.

“Three different governmental agencies require universal masking for students, yet (the school board) take(s) the peculiar position that they're looking for a loophole in a Department of Health order that's designed to protect the safety, health and well being of the children in school. And here's the school board that's charged with the health, safety and well being of the students, and they're searching for a loophole, to say, ‘Oh, well, we don't actually need medical doctors to sign off. Let's just let parents sign off.’ One of  the most ridiculous things I've ever heard,” Behrend said.

Behrend went on to say that a Department of Education statement to all Pennsylvania school districts on Sept. 10 stated that the masking order was “not a mask optional policy,” and that according to the statement, “Any school entity simply permitting a parent sign off without evidence that the student has a medical or mental health condition or disability that precludes the wearing of the face coverage is not in compliance with the order.”

Community members line up to speak for and against a Delaware Valley School District policy allowing for masking exemptions in school with parent-signed forms on Sept. 28. A group of parents has come together to sue the district and the board of directors to reverse the decision, citing that opt-outs without medical input put vulnerable students at risk of contracting COVID-19. © Hannah Phillips Community members line up to speak for and against a Delaware Valley School District policy allowing for masking exemptions in school with parent-signed forms on Sept. 28. A group of parents has come together to sue the district and the board of directors to reverse the decision, citing that opt-outs without medical input put vulnerable students at risk of contracting COVID-19.

However, school administrators across the commonwealth have been left to interpret exactly how to determine eligibility for exemptions.

Delaware Valley Superintendent Dr. John Bell noted at the district’s Sept. 28 meeting that the mask mandate was "so poorly written, it literally looks like it was written five minutes before the press conference," and that it was open to interpretation and advice from attorneys and the DOE.

Fights against masking mandates in schools are nothing new, though many people have indicated that such instances are based in the politicization of the topic, and are relegated to small parties of individuals, not entire districts as a whole.

“(W)hat I've seen is a distinct minority that is very aggressively vocal — I mean, distinct, like 10% to 15%, of the school district population are making all this noise,” Behrend said. “I don't look at that as a 50/50 type situation, a balancing act. You have 85% to 90% of the school district saying, ‘We're okay with masking,’ and then you have 10% to 15%, saying ‘This is horrible.’”

Behrend noted that he has engaged in two other injunctions of a similar nature in Warren County and Erie, and that this area of law is new territory — he only just jumped into the subject after his own child’s school district in western Pennsylvania explored the idea of optional masking prior to the statewide mandate.

“I do feel very directly involved and passionate about this issue because it directly relates to my own family,” Behrend said.

More: Pa. GOP lawmakers wanted to overturn the state's mask mandate in schools. What happened?

Pandemic in PA: Parents in the Poconos rally for, and against, student masking

In a statement cited throughout the claim, Wayne Memorial Health Centers Chief Medical Officer and school board advisor Dr. James G. Cruse attested that recent local outbreaks of COVID-19 have been connected to in-person schooling, leading to further spread of the virus.

Cruse also highlighted that since children under the age of 12 are not yet eligible to be vaccinated against the virus, “universal masks, subject only to limited exceptions, (are) necessary for a safe environment for in-person school during the COVID-19 pandemic.”

According to Cruse, Delaware Valley is the only one of five schools he advises that permits for a parent “to opt out of the mask requirement for any reason,” without carefully scrutinized documentation from their primary care provider.

Furthermore, Cruse states that "there are very few reasons that a student cannot wear a mask and medical exemption from the mandate should be rare and unusual," citing severe developmental disability and diagnosed panic disorder with agoraphobia as examples of applicable exceptions to the order.

On the other hand, he asserts that asthma would, in general, not be a reason for an exception as masks actually reduce exposure to irritants that could lead to an asthma attack.

From USA TODAY: Biden administration reveals COVID-19 vaccination plan for kids 5 to 11

Cruse rounds out his statement by saying that masking is a critical component in the fight against COVID-19, and that schools including Delaware Valley must take “proactive, swift and strong action” such as masking without voluntary opt-out options to reduce the spread of the virus.

“Unfortunately, the School Board policy allowing parents to opt-out of a mask mandate nullifies the effectiveness of masks,” Cruse wrote in the statement. “The mask wearer must rely upon others. If the others are unmasked, the efficacy is not only lost, but children with masks are pitted against children without masks. In sum, there must be a community mask mandate that is enforceable if the Delaware Valley School District is to maintain reasonable safe buildings for entry by all students and students with disabilities.”

According to the DOH, there have been 224 cases of COVID-19 diagnosed among school age children in Pike County from Aug. 16 to Oct. 16. Delaware Valley accounted for 80 confirmed cases, along with 337 quarantines associated with those cases. During the entirety of the 2020-2021 school year, there was a grand total of 388 cases.

The Pocono Record has reached out to both the Delaware Valley School District administration and the school board regarding the lawsuit. Carso responded with "I have no additional comment at this time." No other responses have been received as of Wednesday afternoon.

This is a developing story and will be updated as more information becomes available.

This article originally appeared on Pocono Record: Parents sue Delaware Valley School District over opt-out option for masking

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