Doe v. Upper Saint Clair Sch. Dist.

581 F.Supp.3d 711

DOE 1, et al., Plaintiffs,

v.UPPER SAINT CLAIR SCHOOL DISTRICT, et al., Defendants.

Civil Action No. 2:22-cv-112

United States District Court, W.D. Pennsylvania.

Signed January 21, 2022

Kenneth R. Behrend, Behrend Law Group LLC, Pittsburgh, PA, for Plaintiffs.

Annemarie K. Harr, Jocelyn P. Kramer, Rebecca Hall, Weiss Burkardt Kramer LLC, Pittsburgh, PA, for Defendants Upper Saint Clair School District, Phillip J. Elias, Daphna Gans, Patrick A. Hewitt, Louis P. Mafrice, Jr., Michael R. Mascaro, Angela B. Petersen, Jennifer A. Schnore, Danielle Z. Wetzel, Upper Saint Clair School District Board of Directors.

OPINION

WILLIAM S. STICKMAN IV, United States District Judge:

The School Board of the Upper Saint Clair School District ("School Board") enacted a policy making the wearing of face masks optional, effective Monday, January 24, 2022. Plaintiffs are pseudonymous parents who bring this action "in their own capacity and as parent[s]" of Child Does 1-5. They allege that their children are "medically fragile disabled students" and that permitting families and students to choose whether to mask will subject them to increased risk of catching COVID-19 and increased risk of harm from the virus. (ECF No. 3). They allege that, in light of their children's medical conditions, the School Board's decision to make masking optional violates both Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 (" Section 504" or "Rehabilitation Act"), 29 U.S.C. § 794(a). To be clear, Plaintiffs do not allege that the policy adopted by the School Board hinders their own child's ability to wear a mask. Rather, they allege that, by permitting other students and families to choose whether to wear masks, the policy violates the cited statutes. Plaintiffs ask the Court to issue an Order enjoining the Upper Saint Clair School District ("School District") "from implementing the January 10, 2022, Board decision to eliminate the requirement of masks in the District until such time as the rate of community transmission is not at a rate of ‘substantial’ or ‘high.’ " (ECF No. 2-1). The effect of the requested relief would be that, notwithstanding the vote of the School Board, universal masking would be ordered to remain in place for an indefinite period, provided that transmission of COVID-19 remains "substantial" or "high" in Allegheny County.

The Court understands that the COVID-19 pandemic, including the reaction of governments and institutions to the pandemic, elicits strong feelings with regard to issues like masking and school policy. The Court is sensitive to the positions of both sides on these occasionally contentious issues and believes that each side proceeds from a position of good will. The Court's decision in this case, however, cannot be based on which position it believes is wiser or more prudent in light of the continually developing public health situation. Prudential judgments about policy are left to the people, through their elected officials. The Court's disposition of the requested temporary restraining order must be governed solely by the applicable standard of review and substantive law. After carefully reviewing the allegations pleaded and presented by Plaintiffs and the parties’ respective arguments, in light of the appropriate standard and substantive law, the Court holds that Plaintiffs have failed to demonstrate a reasonable likelihood of success on the merits of their claims. As such, the Court must deny the requested temporary restraining order.¹

I. FACTS AND PROCEDURAL HISTORY

On December 8, 2021, the Pennsylvania Supreme Court held that the Acting Secretary of the Pennsylvania Department of Health ("PADOH") lacked authority to enter an August 31, 2021, Order (with an effective date of September 7, 2021), requiring the wearing of "face coverings" while indoors, "regardless of vaccination status," for all K-12 public school districts in the Commonwealth of Pennsylvania. (ECF No. 1, ¶¶ 83-84); see Corman v. Acting Sec'y of Pa. Dep't of Health , 266 A.3d 452 (Pa. 2021). In so doing, the decision to wear face coverings (i.e. , masking) in Pennsylvania schools was returned to the people through their elected directors to school boards.

Prior to the Corman decision, the School Board² adopted a Health and Safety Plan ("Plan"), on June 28, 2021, which required universal masking "because COVID-19 transmission rates in Allegheny County had increased from ‘Moderate’ in July to ‘High’ in early August." (ECF No. 1, ¶ 81). The Plan was updated on August 18, 2021, and "the School District continued to require universal masking in school buildings [(and on school buses)] while the rate of transmission of COVID-19 remained in a high transmission rate of infection in Allegheny County." (Id. ¶ 82); (ECF No. 1-3, p. 5). The Plan required masks "for all students, staff, volunteers, and visitors indoors in all district K-12 schools" and mandated that they "be well-fitting, properly worn, and in line with CDC mask recommendations." (Id. ). At the same time, it permitted students to remove masks when outside, when eating/drinking at least six feet from others, and "during a mask break (outside of classroom and at least 6 ft. of distance)." (ECF No. 1-3, p. 5). As to student athletes participating in indoor sports, they were to remain masked "unless it would be unsafe for them to do so." (Id. ). Furthermore, students engaging in high-intensity activities (e.g. , running or wrestling) were permitted "to temporarily remove their mask if it causes difficulty breathing, creates or exacerbates a medical respiratory condition, or creates a safety concern." (Id. ). Staff could remove masks when outside, when alone in workplaces, when eating/drinking at least six feet from others, and "when wearing a mask creates an unsafe condition in which to operate equipment or execute a task." (Id. ).

After the issuance of the Pennsylvania Supreme Court's decision, the School Board voted on January 10, 2022, by a 7-2 majority, to update the Plan, and it eliminated the universal masking requirement in school buildings. (Id. ¶ 85). Effective January 24, 2022, mask wearing will be optional in school buildings. The new Plan "strongly recommends face coverings for all students, staff, volunteers, and visitors indoors in all District K-12 schools regardless of vaccination status. Masks should be well-fitting, properly worn, and in line with CDC mask recommendations." (ECF No. 13, pp. 3-4). It goes on to state that the School District will "comply with any local, state, and/or federal requirements for face coverings/masks, as applicable." (ECF No. 13, p. 4). The physical distancing provisions remained the same as those contained in the August 18, 2021, Plan. (ECF No. 1-3, p. 6; ECF No. 13, p. 4).

On January 19, 2022, five groups of parents brought this action against the School District and its nine School Board members for declaratory and injunctive relief on their own behalf and as parents of children who are "medically vulnerable to COVID-19," and on behalf of "a class of similarly situated disabled children who are at severe risk of illness and injury due to their disabilities [...]." (ECF No. 1, pp. 1-2). They contend that the School District has 400 "medically fragile disabled students," "just under 100 students that either had cancer or have some type of autoimmune deficiency," and "300 additional students that suffer from upper respiratory conditions." (Id. ¶¶ 11-13). More specifically, they allege that these 400 students’ disabilities vary, but include: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. , bronchitis or emphysema ), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease ; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders ; (e) hypertension ; (f) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease ); (g) blood disorders (including sickle cell disease ); (h) inherited metabolic disorders ; (i) history of stroke ; (j) neurological or developmental disability; (k) cancer or cancer treatments; and/or (1) muscular dystrophy or spinal cord injury. (Id. ¶ 121).

As to the child Plaintiffs named in the Complaint, Child Doe 1's medical conditions include Chiari Malformation type one, Gastroparesis with g-tube, Ehlers Danlos Syndrome (EDS), hypermobile variant (hEDS), Medical PTSD, and anxiety. (Id. ¶ 147). Child Doe 2's medical conditions include a rare autoimmune disease, Juvenile Dermatomyositis. (Id. ¶ 157). Child Doe 3's medical conditions include asthma, Sensory Processing Disorder, and hypoglycemia. (Id. ¶ 165). Child Doe 4's medical conditions include Autism Spectrum Disorder, Moderate Persistent Asthma without complication, "Body Mass Index (BMI), pediatric of 95-99% for age, obese child structured management/multidisciplinary intervention category," and "vision challenges and executive function challenges." (Id. ¶¶ 173-74). Child Doe 5's medical conditions include Charcot Marie Tooth (CMT) and epilepsy. (Id. ¶ 180).

On August 14, 2021, Allegheny County's COVID-19 community transmission level was moved from substantial to high. (Id. ¶ 80). Plaintiffs aver that the Centers for Disease Control and Prevention ("CDC"), the American Academy of Pediatrics, the PADOH, the Pennsylvania Department of Education, and the Allegheny County Department of Health ("ACDOH") have recommended that school children should universally mask while in school buildings due to the high transmission rate of infection from COVID-19 in Allegheny County. (Id. ¶¶ 15, 72-73). According to Plaintiffs, "The Board's vote neither accounts for the fact that transmission rate...