Times Observer photo by Josh Cotton

A federal judge has granted a temporary restraining order against the Warren County School District that halts the district’s procedure that effectively made masks optional in school.

“Starting tomorrow, Wednesday, October 6th, mask exceptions will not be permitted as a means for not wearing a mask,” according to a statement on the district’s website.

“Only those students who have exemptions and accommodations through the 504 and IDEA processes will be accepted.”

A lawsuit was filed Monday against the Warren County School District over its decision to provide a path for parents to opt out of their child wearing masks. At issue is the district’s Sept. 13 decision to permit parents to sign a waiver in order to exempt their children from state mask requirements without supporting medical documentation.

A complaint for injunctive relief was filed on Monday in the Western Pennsylvania U.S. District Court in Erie. The plaintiffs are identified as nine minors “by and through their parent,” all of whom are identified by initials only.

Defendants are the Warren County School District as well as each of the school board’s nine members.

U.S. District Judge Susan Paradise Baxter granted a temporary restraining order in the case Tuesday afternoon.

“(T)he Court finds that good cause exists for the issuance of a temporary restraining order because Plaintiffs are likely to prevail on the merits of their procedural due process claim brought under the Fifth and Fourteenth Amendments,” Baxter said in her order.

“The facts demonstrate that Plaintiffs will suffer immediate and irreparable injury if a temporary restraining order is not granted,” Baxter continued. She was critical of the district’s action which “occurred without any advance notice, sufficient hearing, of any of the standard procedures for changing School District policy.”

She concluded that a “temporary restraining order will serve the public interest as well as the health, safety and welfare of the school students in the School District.”

Baxter stated in the order that the “effect of this order maintains the status quo of the August 31, 2021, Order of the Acting Secretary of the Pennsylvania Department of Health which required universal masking for all school students within the Commonwealth” and will remain in effect until further court action.

“This September 13, 2021 vote was based on ignorance due to lack of inquiry into facts,” a memorandum in support of the complaint suggests. “The board held a rushed hearing that provided only 24 hours’ notice to the public and provided no notice that a policy vote was taking place.”

The suit was filed by Kenneth Behrend, a Pittsburgh-based attorney, and alleges violations of the Civil Rights Act, the American Disabilities Act and the Rehabilitation Act.

Superintendent Amy Stewart declined to comment on the record regarding the case and Arthur Stewart, who made the Sept. 13 motion, deferred to Board President Donna Zariczny.

“The District is aware of the lawsuit and we have no comment,” Zariczny said.

The complaint asserts information from the CDC that the “risk of COVID-19 exposure and infection is increased by the failure to wear masks” and that the goal of masking is to keep schools open “for as many students as possible.”

While details on the plaintiffs are not included in the documentation filed Monday, the complaint does state that the plaintiffs are “children with health disabilities and children under 12 who are unable to be protected from COVID-19 by a vaccine.”

They point out a perceived hypocrisy in the board’s action – namely that it was taken during a virtual meeting.

The complaint states that the board is “providing itself with greater protection from infection from COVID-19 than they are providing to the school children” in that they have “taken what it describes as the ‘best’ action to avoid non-mask wearing attendees at school board meetings by holding virtual meetings to decrease the risk of exposure and infection from COVID-19 to the school board members.”

Their contention is that the district’s policy “violates Constitutional substantive and procedural due process and will result in irreparable harm” to the plaintiffs, WCSD staff, students, visitors and the community.

The complaint states that the district approved a health and safety plan to be eligible for Elementary and Secondary School Emergency Relief funding which they argue required compliance with CDC recommendations. They note the district has sought just over $6 million in funds from that program.

They provide a history of the developments in the case, citing the various orders and guidance implemented by state and federal entities, including the requirement to be masked on school buses.

The district, they claim, “granted de facto permission for optional masking on school buses” by only issuing warnings under the district’s disciplinary procedures. They argue the district made a policy change with that move and didn’t provide any public notice or take the item before committee review.

“Prior district policy regarding the enforcement of wearing face masks on school transportation was rendered meaningless,” they argue. “The action of warning a child of misbehavior and violation of a policy, without any consequence for additional violations, is a meaningless action.”

The complaint then zeroes in on the mask order implemented by the state and the district’s response.

Follow up communication from the state, the complaint states, indicated that the order is “not a mask optional policy” and that an exemption without medical evidence is not in compliance with the order.

Three days after that update from the state, the complaint details, the district took its action to provide a no-medical documentation path to opt out of mask wearing in school.

The plaintiffs argue that action is “acting in direct violation of the order of the Pennsylvania Department of Health specifically designed to eliminate school district’s and parent’s choices for optional masking” and is “in contradiction to medical and scientific studies and the requirements of the CDC designed to protect children in schools, employees, parents and the community.”

They raise the same process argument that they raised for the busing change but take a step further to criticize the board’s actions on Sept. 13.

That vote “was not held before a fair and impartial tribunal,” the complaint states, “as shown by the lengths which the majority of the board were willing to go to permit parents the option of excepting their children from universal masking without medical documentation despite the multiple governmental orders… and the overwhelming science and medicine which demonstrates that universal masking works to prevent the spread of infection caused by COVID-19.”

The board “was willing to violate its own operating procedures designed to protect the public by providing adequate notice,” they add. “A majority of the board voted in favor of the motion, anyway.”

The complaint points out an irony that the plaintiffs “can no longer associate safely, or potentially, at all” due to the district’s policy change “yet the minor plaintiffs are required under compulsory education laws to attend school.”

They’re asking for an emergency temporary restraining order and ultimately a preliminary injunction to wipe the mask-optional policy and “restore the status quo” that is compliant with the various orders requiring universal masking.

“The school board has materially increased the risk of the spread of COVID-19 among the student body and employees of the school district,” the plaintiffs state in a memorandum also filed Monday. “Here, (t)here is no evidence that the school board considered whether permitting children to be unmasked in school and while riding buses without any medical documentation created a direct threat to students who have actual and real disabilities.”

They say the risk of harm is “great and obvious.”