The Delaware Valley School District and board members brought a four-lawyer legal defense team to a seven-hour hearing, contesting a court-issued temporary restraining order and spending part of the hearing challenging the expertise of the same doctor they relied on to guide the school district through the pandemic’s darkest days.
MILFORD, PA — The Delaware Valley School District and board members brought a four-lawyer legal defense team to a seven-hour hearing, contesting a court-issued temporary restraining order and spending part of the hearing challenging the expertise of the same doctor they relied on to guide the school district through the pandemic’s darkest days.
The restraining order, which restricted the district’s ability to allow parents to opt out of masking their children without medical certification, was issued on October 20, just 48 hours after a lawsuit was filed by five anonymous parents of district students. The lawsuit named the Delaware Valley School District (DVSD) and board members as defendants. Because the lawsuit alleges that board members acted outside of the board authority, each member was sued individually and in their official capacity.
The October 28 hearing was held in United States District Court for the Middle District of Pennsylvania in Scranton, PA before Judge Robert D. Mariani. Three school board members attended the hearing.
On October 29, Mariani extended the temporary restraining order for 14 days as he decides whether to grant further injunctive relief to the plaintiffs, or allow the school board’s expanded exception policy to remain in place while the case is resolved. Mariani also issued a gag order to the parties involved in order to protect the identity of the students associated with the lawsuit. Since the restraining order was issued rescinding Fisher’s resolution, DVSD has reduced the number of maskless students to under 30, from a reported 630.
If Mariani grants the plaintiffs’ preliminary injunctive relief request, the school district would be required to maintain only medically-certified mask exemptions throughout the court process. In that case, the plaintiffs will have, in effect, succeeded in their goal of aligning DVSD’s masking policies with the state and medical guidelines, since the length of the court case will most likely outlast masking orders in general.
School board defense
In representing the school and board members, lawyers from Marshall Dennehey of Philadelphia and Kannebecker Law of Milford challenged the credentials of Dr. James Cruse, Wayne Memorial Community Health Center medical director, whose affidavit outlining the harms caused by lack of masking at schools was utilized by the plaintiffs. Cruse is a family doctor based in Honesdale and has been part of a team of doctors advising four local school districts since March 2020. DVSD used that advice and guidance to keep the school open to students during the 2020-2021 school term. The defendants asserted that Cruse lacked the qualifications to testify as an expert in COVID-19 diagnosis and treatment.
Through their attorney, the school board asserted five primary defenses: that the policy did not violate the Americans with Disability Act; that the policy caused “no actual harm;” that the PA acting Secretary of Education did not have the authority to issue the August 31 order, made effective on September 7; a provision of the order actually permits the board’s action through an interpretation loophole and that voting on the resolution was not an affirmative, physical act as required by the statute.
“They have a difficult task,” said the attorney for the plaintiffs, Ken Behrend, of Behrend Law Group of Pittsburgh, referring to the defense’s task of explaining the legality of the board’s policy, as well as the board’s challenge of the credentials of an expert they used to much acclaim over the last 18 months.
The board’s attorneys also suggested the board could compensate the plaintiffs monetarily instead of making classroom allowances for disabled children.
Regarding the cost to the taxpayers, Eric Goldstein of G5 Insurance Agency said, “Typically legal fees are part of the deductible before the insurance kicks in.”
New mask policy quickly challenged
The temporary restraining order of October 20 reversed a new school board policy crafted “while watching a baseball game” by board president Jack Fisher. At the time the resolution was proposed and voted on, Fisher said he “did not receive any assistance from any lawyers or DV retained law firm” for the resolution and stated, “We are not in need of preparing for a legal challenge at this point.” The new policy was approved September 28 by a 5-1 vote and challenged with a lawsuit on October 18.
At the time of the vote, assistant superintendent Dr. Margaret Shaffer called the policy “reckless and cavalier.”
In late October, a federal court in Tennessee offered “persuasive authority” for this case with a recent decision that overruled a relaxed masking policy instituted by the governor, siding with plaintiff attorneys asserting violation of the Americans with Disability Act.
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