Federal judge pauses DV’s new mask policy

By CHARLES PETERSHEIM
Posted 10/23/21

On October 21, the Delaware Valley School District (DVSD) changed its mask policy for the fourth time since the school year commenced.

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Federal judge pauses DV’s new mask policy

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MILFORD, PA — In Scorcese’s “Godfather III,” Michael Corleone laments, “Just when I thought I was out, they pull me back in.” That sentiment could be expressed about the Delaware Valley School District’s masking policy.

On October 21, the Delaware Valley School District (DVSD) changed its mask policy for the fourth time since the school year commenced. This latest change was driven by a temporary restraining order issued by a federal judge less than 48 hours after five anonymous district parents filed a federal lawsuit on behalf of their children.

This federal court injunction requires the school district to immediately return to a policy that will rescind most, if not all, of the mask exceptions issued by the district since a September 28 school board vote that allowed parents to opt their children out solely for medical reasons. 

An October 21 recorded telephone message from DVSD Superintendent of Schools Dr. John Bell to the parents of students confirmed that masking exceptions were to be eliminated on October 22 for all students except those with a valid health professional’s signoff. Bell estimated this would probably not exceed 25 students, as opposed to what the lawsuit asserts is currently 640 exceptions.

Alison Beam, acting secretary of the Pennsylvania Department of Health, had ordered universal masking in an order dated September 7, and followed up with correspondence of caution to school districts that sought to exploit perceived loopholes in the order.

According to the lawsuit filed by Kenneth R. Behrend of Behrend Law Group, LLC, the board’s policy violates the basic tenet of protections by the American Disability Act by forcing the students with disabilities to make accommodations in their schooling in order to protect themselves from maskless, unvaccinated students. The law requires reasonable accommodation by the school for a disabled child.

“The state put in effect a policy to protect the health and safety of the students of the district and the board then wantonly ignored it,” Behrend said.

The complaint names the school district and the current school board members, Jack Fisher, Jessica Decker, Dawn Bukaj, Brian Carso, Cory Homer, Pam Lutfy, Felicia Sheehan, and Rosemary Walsh, in their individual capacity and in their official capacity as members of the Delaware Valley School District Board of Directors.

The lawsuit contends the school board policy permits a “voluntary opt-out” and asks the court to direct the school to “institute a policy without a purely voluntary opt-out,” thus eliminating a “barrier to safe access created by the school board vote.”

The suit also alleges five other causes of actions including due process, free association and the right to an education.  Beyond the rescinding of parental mask exceptions and voiding the July 16, 2021 health and safety plan, it asks for reimbursement of reasonable attorney fees, costs, and expenses.

The first hearing on the temporary restraining order is set for October 28 in Scranton. The school board is being defended by the law firm of Marshall Dennehey, which is also defending a similar case in the Philadelphia area.

The mask guidance whiplash was at first driven by the state’s changing guidelines. DVCS board president Jack Fisher said at the time that “there is a dangerous belief system spreading in our society that the state and federal government are to control children.” Fisher asserted a narrow home-rule defense against state and federal interference in school board governance in regards to masking.

The lawsuit and judge’s ruling insert another last-minute twist in a hotly contested November 2 school board election between candidates who are offering vastly different visions of the direction of DVSD. The Education First slate is offering an extension of the current board’s policies, while the Safety First candidates are demanding a broad range of policy pivots in the board’s dealings with COVID-19, sexual harassment, curriculum and other matters.

This is a developing story.

Previous coverage:

DV board, administration spar over masks

DV mask policy sows confusion and risk 

DV  moves past mask debate

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