B.P. v. N. Allegheny Sch. Dist.

579 F.Supp.3d 713

B.P., a minor, BY AND THROUGH their parent, L.P., C.L., a minor, by and through their parent, K.L, O.D., a minor by and through their parent, N.D., R.J., a minor, by and through their parent, H.J., L.H., a minor by and through their parent, S.H., O.P, a minor, by and through their parent, S.P., E.H., a minor, by and through their parent, M.H., L.S., a minor by and through their parent, B.P., G.E., a minor, by and through their parent, A.E., M.B., a minor, by and through their parent, R.B., G.A., a minor, by and through their parent, A.A., each a minor resident of the North Allegheny School District attending a North Allegheny School District or a parent of the same, Plaintiffs,

v.NORTH ALLEGHENY SCHOOL DISTRICT, a Pennsylvania governmental entity, Andrew Chomos, Marcie Crow, Elizabeth Blackburn, Richard McClure, Scott E. Russell, Allyson Minton, Kevin Mahler, Elizabeth Werner, and Shannon Yeakel, all individual elected officials sued in their individual capacity and in their capacity as members of the North Allegheny School District Board of Directors, a Pennsylvania elected legislative body, Defendants.

2:21-cv-1112

United States District Court, W.D. Pennsylvania.

Signed January 12, 2022

Alexander Wilson Saksen, Goldberg Kamin & Garvin, Kenneth R. Behrend, Behrend Law Group LLC, Pittsburgh, PA, for Plaintiffs.

Steven P. Engel, Christina L. Lane, Maiello, Brungo & Maiello, LLP, Pittsburgh, PA, for Defendants North Allegheny School District, Andrew Chomos, Marcie Crow, Elizabeth Blackburn, Scott E. Russell, Elizabeth Werner, Shannon Yeakel.

Steven P. Engel, Christina L. Lane, Maiello, Brungo & Maiello, LLP, Kenneth R. Behrend, Behrend Law Group LLC, Pittsburgh, PA, for Defendants Richard Mcclure, Allyson Minton, Kevin Mahler.

MEMORANDUM OPINION

Marilyn J. Horan, United States District Judge

Presently before the Court is a Motion to Dismiss the above action involving issues related to school masking in the North Allegheny School District, Allegheny County, Pennsylvania. (ECF No. 29). Plaintiffs, parents of minor children who attend schools in the District, bring a three-count Complaint requesting injunctive relief for violations of procedural and substantive due process and violations of their First Amendment rights to free association. (ECF No. 1).

The Plaintiffs filed a Motion for a Temporary Restraining Order with their Complaint on August 22, 2021 (ECF No. 2). Following Oral Argument, the Court granted Plaintiffs’ Motion for a Temporary Restraining Order on narrow procedural due process grounds, ordering that the August 18, 2021 Board action was stayed pending further Board action on lifting the mask mandate at a subsequent Board Meeting following public notice and comment period. (ECF No. 9).

On October 13, 2021, Defendants filed a Motion to Dissolve the Temporary Restraining Order. (ECF No. 20). After briefing was completed, the Court granted Defendants’ Motion to Dissolve the Temporary Restraining Order. (ECF No. 26).

Defendants now file a Motion to Dismiss Plaintiffs’ Complaint. (ECF No. 29). Following briefing upon the Motion to Dismiss, Plaintiffs filed a Motion for Leave to File a Surreply. (ECF No. 40). The Court granted said Motion and also granted Defendants’ leave to file a Response to Plaintiffs’ Surreply. (ECF No. 41). Both parties submitted timely supplemental briefing. (ECF Nos. 42 & 43). For the reasons stated herein, Defendants’ Motion to Dismiss will be granted.

I. Facts

On June 17, 2021 the school superintendent, Dr. Melissa Friez, sent a district-wide email to parents concerning the District's Health and Safety and Education Plans for the 2021-2022 School Year (Health and Safety Plan). (ECF No. 1, at ¶ 62). The Health and Safety Plan included as a disclaimer: "These plans were created with the information that we know now. The District will continue to follow local, Commonwealth, and national guidance, which may require our plans to change." (ECF No. 1, at ¶ 63). The Mask Policy within the June 17, 2021 Health and Safety Plan stated: "Students and staff were required to wear face coverings in accordance with the order of the Pennsylvania Department of Health requirements. As of June 28, 2021, or when 70 percent of adults get their second dose, whichever comes first, the Commonwealth's mask order can be lifted. At this time, the District will not require face coverings after June 28, unless directed to do so by local, Commonwealth, and/or federal guidelines." (ECF No. 1-4, at 13). At the June 23, 2021 School Board Meeting, the Board voted to approve the June 16, 2021 Health and Safety Plan. (ECF No. 1, ¶ 67).

On August 13, 2021, Dr. Friez sent an email to District parents that said, "In order to honor the commitment to five days of in-person instruction and the need for our students to return to school to a safe environment with as few interruptions as possible, NASD will require face coverings indoors for students, staff, and visitors for grades K-12 beginning Monday, August 16." (ECF No. 1, at ¶ 79). The District had a School Board Meeting scheduled for August 18, 2021. (ECF No. 1, at 16). Although the meeting's agenda was posted on the School Board's website, there was no line item on the agenda to advise that the Board would vote on Dr. Friez's August 13, 2021 update to the Health and Safety Plan. (ECF No. 1, at ¶¶ 87-89).

At the August 18, 2021 School Board Meeting, Dr. Friez presented the update to the Health and Safety Plan. (ECF No. 1, at ¶ 96). After Dr. Friez's presentation, Board Member Blackburn moved to eliminate the universal masking requirement within the August 13, 2021 Health and Safety Plan. (ECF No. 1, at ¶ 96). After hearing comment from persons attending the meeting, the Board voted, by a vote of 6-3, to change the August 13, 2021 update to the Health and Safety Plan, which thereby made masks optional in the District. (ECF No. 1, at ¶ 105).

On August 22, 2021, Plaintiffs filed suit in this Court seeking a Temporary Restraining Order to reinstate the Health and Safety Plan's August 13, 2021 update that required universal masking in the District. (ECF Nos. 1 & 2). This Court granted Plaintiffs’ Temporary Restraining Order on narrow procedural due process grounds, as the Plaintiffs established a likelihood of success on the merits that the August 18, 2021 Board action to eliminate the universal masking requirement was taken without proper public notice and comment. (ECF No. 9). The result of this Court's Temporary Restraining Order was a return to the status quo as outlined in the August 13, 2021 update to the Health and Safety Plan requiring face masks for all students, staff, and visitors. (ECF No. 9, at 3).

The following background is from briefing regarding the Motion to Dismiss and was not included in the Complaint. At the September 22, 2021 regularly scheduled School Board meeting, the Meeting Agenda included consideration of motions to rescind the August 18, 2021 School Board masking decision and to require masks indoors while Allegheny County is in substantial or high community spread. (ECF No. 29, at ¶¶ 13-14). The School Board published notice of the meeting in the Pittsburgh Post-Gazette, posted flyers on the front door of the District's Central Office, and posted information about the meeting and agenda on the Board's website. (ECF No. 29, at ¶ 14). At the School Board Meeting, following four and one-half hours of comment from the public the Board voted to: (1) rescind the Board's mask-optional action from the August 18, 2021 meeting and (2) adopt a policy requiring masks to be worn indoors while Allegheny County is in substantial or high for community transmission/spread, regardless of the status of any Department of Health masking order. (ECF No. 29, at ¶ 17).

On December 2, 2021, District parents received an email advising that, at the District's December 8, 2021 School Board Meeting, the Board would consider and vote upon whether "to revise the North Allegheny School District's Health & Safety Plan to strongly recommend masks indoors effective January 18, 2022, only if the Department of Health order is lifted for students, staff, and visitors or the lifting of the stay entered by the PA Supreme Court on November 30, 2021, in the case of Corman et al. v. Allison Beam, Acting Secretary of Health, which had the effect of maintaining the mask mandate until further order of the court." (ECF No. 42, at 3-4). At the December 8, 2021 School Board Meeting, and after public comment, the Board voted 5-4 to strongly recommend masks in the District. (ECF No. 42, at 4).

II. Standard of Review

a. 12(b)(1) Standard

A court must grant a motion to dismiss if it lacks subject matter jurisdiction to hear a claim. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be presented by the movant as either a facial or factual challenge to the court's subject matter jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a facial attack, "the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elec. Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a factual attack, the court may consider evidence outside the pleadings. Id. (citing Mortensen , 549 F.2d at 891 ). At "issue in a factual 12(b)(1) motion is the trial court's jurisdiction[,] its very power to hear the case." Mortensen , at 891. The plaintiff has the burden of establishing that the court has subject matter jurisdiction. Id.

b. 12(b)(6) Standard

When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Eid v. Thompson , 740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips...