Doe v. Perkiomen Valley Sch. Dist.
| Decision Date | 07 February 2022 |
| Docket Number | Civil Action 22-cv-287 |
| Parties | JOHN DOE 1 and JANE DOE 1, in their own capacity and as parents of CHILD DOE 1, JOHN DOE 2 and JANE DOE 2, in their own capacity as parents of CHILD DOE 2, JANE DOE 3, in her own capacity and as a parent of CHILD DOE 3 and on behalf of those similarly situated, Plaintiffs, v. PERKIOMEN VALLEY SCHOOL DISTRICT, a Pennsylvania governmental entity, JASON SAYLOR, MATTHEW DORR, ROWAN KEENAN, DON FOUNTAIN, KIM MARES, REENA KOLAR, SARAH EVANS-BROCKETT, LAURA WHITE, and TAMMY CAMPLI, all Individual elected officers sued in their official capacity as members of the BOARD OF SCHOOL DIRECTORS OF THE PERKIOMEN VALLEY SCHOOL DISTRICT, a Pennsylvania elected legislative body, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
This action is brought by children with disabilities and their parents, on behalf of themselves and a putative class of similarly situated children, in response to the Perkiomen Valley School Board's decision to move during the COVID-19 pandemic from universal indoor masking to optional masking in the school district. Plaintiffs filed a Complaint on January 21, 2022 alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1201 et seq., and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 701 et seq. (collectively, the “Acts”).[1] A Motion for a Temporary Restraining Order (“TRO”) followed on January 23, which was granted. A hearing was held on February 4, 2022, following full briefing on Plaintiffs' Motion for a Preliminary Injunction. For the reasons that follow Plaintiffs' Motion will be granted.
In March 2020, an infectious and deadly viral disease called COVID-19 plunged the world into a global pandemic that has so far claimed the lives of hundreds of thousands of Americans.[2] COVID-19 is primarily spread by “exposure to respiratory fluids carrying infectious virus, ” for example, when an individual inhales droplets emitted by other people when they cough or speak.[3] An individual can spread COVID-19 to others even if she does not have symptoms of the disease-up to 50% of transmissions may stem from asymptomatic carriers.[4]At the time of writing, the most prevalent variant of COVID-19, known as Omicron, is also the most infectious yet.[5] The pandemic has had a serious detrimental effect on the mental health of children, through fear, missed social interactions and developmental opportunities, and interrupted access to the services provided by public schools, including nurses, counseling, and food security.[6]
The Perkiomen Valley School District is in Montgomery County. Approximately 5, 100 students from kindergarten to grade 12 from the Townships of Perkiomen, Skippack, and Lower Frederick, and the Boroughs of Trappe, Collegeville, and Schwenksville are enrolled. It operates under the leadership of Superintendent Dr. Barbara Russell. As Superintendent, Dr. Russell is ultimately responsible for ensuring a safe, quality school environment for Perkiomen Valley students, and she leads the District's COVID-19 response efforts. The Board of Directors of the District (the “Board”) has nine elected members, who each serve a term of four years. The Board has focused its efforts on minimizing the transmission of COVID-19 among its students and staff and has approved several “health and safety plans” to achieve that end.
In response to the pandemic, from March 2020 through the remainder of the 2019-20 school year, students stayed home and the District educated them in a virtual learning environment. During the summer of 2020, the Pennsylvania Department of Education required school districts to develop a health and safety plan, approved by the Board of School Directors, before the schools could return to in-person instruction.[7] The District formed a re-opening task force comprised of administrators and community stakeholders for this purpose. It continued to adjust its approach throughout that school year as local COVID cases fluctuated and public health guidance continued to be updated. The District adopted the “layered approach” recommended by public health authorities, deploying multiple mitigation strategies to prevent the spread of the virus, including universal masking, social distancing, upgrading ventilation systems, and ensuring masks and hand sanitizer were readily available in the schools. District students returned to school five days a week for the first time on March 22, 2021, with universal masking and other protections in place.
On March 11, 2021, Congress passed the American Rescue Plan Act of 2021, 15 U.S.C. § 9001 note (the “ARP”). Section 2001 of the ARP created the Elementary and Secondary School Relief Fund (the “ARP ESSER Program”), which provides funding to “State educational agencies and school districts to safely reopen and sustain the safe operation of schools and address the impact of the coronavirus pandemic on the Nation's students.”[8] Pursuant to the Act, states allocate funds to local educational agencies (“LEAs”), which include school districts, which must then “develop and make publicly available . . . a plan for the safe return to in-person instruction.” 20 U.S.C. § 3401 note §§ 2001(d)(1), (i)(1).[9]
In preparation for the 2021-22 school year, Pennsylvania required LEAs to submit a health and safety plan meeting the requirements of the ARP by July 30, 2021.[10] The ARP requires each plan “to implement prevention and mitigation strategies that are, to the greatest extent practicable, consistent with the most recent [Centers for Disease Control and Prevention (“CDC”)] guidance on reopening schools.”[11] Each plan must describe any policies that the LEA has adopted regarding the “safety recommendations established by the CDC” on topics including “universal and correct wearing of masks” and “[a]ppropriate accommodations for children with disabilities with respect to health and safety policies.”[12] LEAs must update their plans at least every six months, “taking into consideration the timing of significant changes to CDC guidance on reopening schools.”[13] Each “revised plan must address each of the aspects of safety currently recommended by the CDC or, if the CDC has updated its safety recommendations at the time the LEA is revising its plan, each of the updated safety recommendations.”[14]
At the preliminary injunction hearing, Dr. Russell, who was an irreproachably credible witness, testified that the District's health and safety plans were founded on multiple considerations, including the recommendations of the CDC, the COVID-19 transmission rates in Montgomery County, the availability of personal protective equipment, and all that the District was continuing to learn about COVID-19, how it spread, and how it could best be mitigated. Each health and safety plan was reviewed by local stakeholders including parents, staff, teachers, and administrators, prior to its presentation to the Board for approval.[15] Taken into consideration was the CDC's method of rating the prevalence of COVID-19 from “low” to “high, ” based on the number of cases per 100, 000 people and the rate of positive test results. For example, a county has a “high” rate of transmission if, in the last seven days, it has had 100 or more new cases of COVID-19 per 100, 000 residents, or a COVID-19 test positivity rate of 10% or more.[16]The Montgomery County Office of Public Health (“MCOPH”) uses the CDC's scale.[17]
On July 12, 2021, the Board approved a Health and Safety Plan that recommended but did not require masking indoors. By August 1, 2021, the transmission rate of COVID-19 in Montgomery County had increased to “high” (the highest transmission rate on the scale).[18] In light of the District's goal to keep students learning on-site as much as possible, of this increase in cases, and of the lack of vaccine availability for the youngest students at that time, the Board decided to revisit the July Plan.
Thus, on August 9, 2021, it approved Version 7 of the Health and Safety Plan, which mandated universal masking indoors (though it remained optional outdoors).[19] Under Version 7 of the Plan, the District would monitor community transmission rates and positivity rates, and anticipated that “[t]his information may be used as a basis . . . to determine instructional models during COVID-19.”[20] Students could request an exemption from universal masking by providing “evidence of a medical condition or mental health issue from a certified medical professional indicating the detrimental effects of wearing masks, ” or based on a disability accommodation.[21] Currently, 44 students in the District have received mask exemptions, stemming from conditions including autism and anxiety.[22]
In late September or early October, in preparation for the beginning of the indoor sports season, Dr. Russell recommended, and the Board approved an update to the Health and Safety Plan providing that student athletes did not have to wear masks indoors while competing.[23]Masks were required when practicing or sitting on the sidelines indoors, but remained optional outdoors. This update was made in response to new guidance from the CDC and the MCOPH concerning student participation in high-exertion activities.
After a municipal election on November 2, 2021, the Board's composition changed with four newly elected members. Sometime that month, the District implemented the MCOPH's “Test-to-Stay” program, which allowed unvaccinated or partially vaccinated students who had been exposed to a confirmed case of COVID-19 at school to avoid isolating, if they were asymptomatic and agreed to an “antigen testing cadence” that yielded only negative results.[24]Without this...
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