Doe v. Del. Valley Sch. Dist.

• Decision Date: 11 November 2021
• Docket Number: 3:21-CV-1778
• Citation: 572 F.Supp.3d 38
• Parties: John DOE #1, in his own capacity and as parent of child Doe 1, et al., Plaintiffs, v. DELAWARE VALLEY SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

572 F.Supp.3d 38

John DOE #1, in his own capacity and as parent of child Doe 1, et al., Plaintiffs,

v.DELAWARE VALLEY SCHOOL DISTRICT, et al., Defendants.

3:21-CV-1778

United States District Court, M.D. Pennsylvania.

Filed November 11, 2021

Kenneth R. Behrend, Kevin M. Miller, Pro Hac Vice, Behrend Law Group LLC, Pittsburgh, PA, Vern S. Lazaroff, Lazaroff & Fetzko, Port Jervis, NY, for Plaintiffs.

William J. McPartland, Marshall Dennehey, Moosic, PA, for Defendants Delaware Valley School District, Brian Carso, Rosemary Walsh.

Charles Kannebecker, Weinstein Schneider Kannebecker & Lokuta, Milford, PA, William J. McPartland, Marshall Dennehey, Moosic, PA, for Defendants Jack Fisher, Jessica Decker, Dawn Bukaj, Cory Homer, Pam Lufty, Felicia Sheehan.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. INTRODUCTION AND PROCEDURAL HISTORY

Presently before the Court is Plaintiffs’ "Motion for 1) Temporary Restraining Order; 2) Order Restraining the School Board of the Delaware Valley School District and the Board Members; and 3) Order to Show Cause why a Preliminary Injunction Should not Issue" (Doc. 5).

On October 18, 2021, Plaintiffs, consisting of five John/Jane Does, filed a "Complaint for Declaratory and Injunctive Relief for Violations of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Constitutionally Protected Due Process Rights under 42 U.S.C. § 1983" (Doc. 1), naming as Defendants the Delaware Valley School District ("DVSD") and DVSD Board of Directors Jack Fisher, Jessica Decker, Dawn Bukaj, Brian Carso, Cory Homer, Pan Lufty, Felicia Sheehan, and Rosemary Walsh, each in their individual and official capacities. Plaintiffs’ Complaint alleges "Discrimination on the Basis of Disability in Violation of the ADA" (Count I); "Violation of Section 504 of the Rehabilitation Act of 1973" (Count II); " 42 U.S.C. § 1983 – Violation of Substantive Due Process (5th and 14th Amendments)" (Count III); " 42 U.S.C. § 1983 – Violation of Substantive Due Process (Fourteenth Amendment)" (Count IV); " 42 U.S.C. § 1983 – Right to Free Association (First Amendment)" (Count V); and "Violation of Fundamental Rights Protected under the Pennsylvania Constitution" (Count VI). (Doc. 1). Plaintiffs’ Complaint further contains a "Request for Temporary Restraining Order and Preliminary Injunction". (Id. at ¶¶ 175-176).

On October 18, 2021, Plaintiffs also filed a "Motion for 1) Temporary Restraining Order; 2) Order Restraining the School Board of the Delaware Valley School District and the Board Members; and 3) Order to Show Cause why a Preliminary Injunction Should not Issue" (Doc. 5) and supporting brief (Doc. 6), to which Defendants have filed briefs in opposition (Docs. 17, 18). Plaintiffs’ Motion requests the following relief:

[1.] Vacate and set aside the September 28, 2021 vote of the School Board to permit a current policy of optional masking, based upon a parent's signature without medical documentation while students are attending school, and while riding on school buses in violation of the Order of the CDC January 29, 2021 and adherent policy, the August 31, 2021 Order of the Acting Secretary of the Pennsylvania Department of Health, and the September 10, 2021 Directive from the Pennsylvania Department of Education, as well as any other action taken by Defendants to rescind the universal masking policy in school and while riding school buses;

[2.] Declare that the Defendants’ Health and Safety Plan as modified on September 15, 2021, is void and without legal force or effect to the extent it is in violation of the Order of the CDC January 29, 2021 and adherent policy, the August 31, 2021 Order of the Acting Secretary of the Pennsylvania Department of Health, and the September 10, 2021 Directive from the Pennsylvania Department of Education and the American with Disabilities Act and Section 504 of the Rehabilitation Act;

[3.] Declare that the policy of the School District created by the Board Members’ vote on September 28, 2021, which is in contradiction to CDC and State governmental entity guidelines, [is] invalid and any and all actions taken by Defendants in violation of the Order of the CDC January 29, 2021 and adherent policy, the August 31, 2021 Order of the Acting Secretary of the Pennsylvania Department of Health; and the September 10, 2021 Directive from the Pennsylvania Department of Education, and the American with Disabilities Act and Section 504 of the Rehabilitation Act, are found to be arbitrary, capricious, based on ignorance due to failure to inquire into facts, otherwise not in accordance with law, and without observance of required procedures;

[4.] Declare that the failure to abide by the Order of the CDC January 29, 2021 and adherent policy, the August 31, 2021 Order of the Acting Secretary of the Pennsylvania Department of Health, and the September 10, 2021 Directive from the Pennsylvania Department of Education and other actions taken by Defendants to void the State and Federal universal masking policies are in violation of the Constitution and contrary to the laws of the United States and in violation of the American with Disabilities Act and Section 504 of the Rehabilitation Act;

[5.] Declare that the failure to abide by the Order of the CDC January 29, 2021 and adherent policy, the August 31, 2021 Order of the Acting Secretary of the Pennsylvania Department of Health, and the September 10, 2021 Directive from the Pennsylvania Department of Education, and other actions taken by Defendants are in violation of the ADA and Section 504 and contrary to the laws of the United States;

[6.] Temporarily restrain, as well as preliminarily and permanently enjoin Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, from implementing or enforcing a policy contrary that violates the ADA, Section 504, the Order of the CDC January 29, 2021 and adherent policy, the August 31, 2021 Order of the Acting Secretary of the Pennsylvania Department of Health, and the September 10, 2021 Directive from the Pennsylvania Department of Education and from taking any other action to enforce such school district policy that is not in compliance with applicable law;

[7.] Temporarily restrain, as well as preliminarily and permanently enjoin Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, from implementing or enforcing a policy contrary to in violation of [sic ] the Order of the CDC January 29, 2021 and adherent policy, the August 31, 2021 Order of the Acting Secretary of the Pennsylvania Department of Health, and the September 10, 2021 Directive from the Pennsylvania Department of Education, for COVID-19 relief and from taking any other action to rescind such policy that is not in compliance with applicable laws ...

(See Plaintiffs’ Proposed Order, Doc. 5-1, at 3-5).¹

The Court issued a Temporary Restraining Order on October 20, 2021, enjoining and restraining the Defendants from

failing or refusing to comply with the Pennsylvania Department of Health August 31, 2021, Order requiring universal masking with identified exceptions ... and the September 21, 2021, Directive from the Pennsylvania Department of Education reinforcing with School District that parents do not have an option to except their children from the Department of Health Order unless the parental waiver form is supported by medical documentation which provides verifiable medical proof that the student requires an accommodation from a health risk to the student cause[d] by mask wearing.

(Doc. 12, ¶ 2).

On October 28, 2021, the Court held an evidentiary hearing and oral argument on Plaintiffs’ motion for preliminary injunctive relief. At the hearing, Plaintiffs presented the testimony of Dr. James Cruse, Plaintiffs Jane Doe #1, John Doe #1, Jane Doe #2, John Doe # 2, Jane Doe #3, and Defendants DVSD Board Directors Dawn Bukaj, Jack Fisher, and Brian Carso. The following day, this Court extended its TRO for a period of 14 days or until its issuance of an Order ruling on Plaintiffs’ motion for preliminary injunctive relief. (Doc. 32). The TRO is thus scheduled to expire on Friday, November 12, 2021.

However, on November 10, 2021, the Commonwealth Court of Pennsylvania issued a decision finding the "Order of the Acting Secretary of the Pennsylvania Department of Health Directing Face Coverings in School Entities", the Order at issue in the present case which Plaintiffs assert that Defendants have violated, to be "void ab initio " and unenforceable. (See Doc. 38-1). The Pennsylvania Office of the Attorney General, representing Pennsylvania Acting Secretary of Health Alison Beam, filed an appeal to the Pennsylvania Supreme Court that same day. That appeal operates as an automatic supersedeas in favor of the Commonwealth, see Pa. R.A.P. 1736, and the Acting Secretary of Health's Order thus remains in effect as of the issuance of this Court's present memorandum opinion.

As a result of the automatic supersedeas , and the expiration of this Court's TRO on Friday, November 12, 2021, a decision on Plaintiffs’ motion for preliminary injunctive relief remains necessary.²

Plaintiffs’ motion (Doc. 5) having been fully briefed and an evidentiary hearing having been held, the motion is now ripe for disposition. For the reasons that follow, Plaintiffs’ motion for preliminary injunctive relief will be denied.

II. FINDINGS OF FACT

1. On January 29, 2021, the Centers for Disease Control and Prevention ("CDC") issued an Order requiring "persons to wear masks while on conveyances and at transportation hubs" due to a "pandemic of respiratory disease (coronavirus disease 2019 or ‘COVID-19’) caused by a novel coronavirus (SARS-COV-2)." (see Prelim. Inj. Hr'g, P-2) (hereinafter "CDC Order").

2. The CDC Order explained that "[t]he virus that causes COVID-19 spreads very easily and sustainably between people who are in

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