As numerous federal lawsuits alleging violations of the Americans with Disabilities Act and the rights of disabled students in mask-optional school environments rage on in Pennsylvania and beyond, North Penn School District is remaining steadfast in keeping its mask requirements in place, at least until transmission levels drop below the thresholds laid out in the district’s Health and Safety Plan.
“The lesson, at this time,” said board Solicitor Kyle Somers, “is the districts have the right to determine the amount of masking that will take place in the school. Transitioning to a mask-optional environment during high transmission is a risky endeavor, in terms of facing potential litigation.”
As of a Jan. 18 updated Health and Safety Plan, North Penn remains in the high masking expectation level (greater than 100 cases per 100,000 or greater than 10 percent positivity) and requires masks for all grade levels indoors, but optional outdoors. The prior Health and Safety Plan approved in August 2021 required masking indoors and outdoors for all grade levels.
During the “Other Business” portion of Tuesday night’s North Penn School Board work session, Board President Tina Stoll asked Superintendent Dr. Curt Dietrich to update the board on district masking requirements.
Dietrich said the district is in three weeks of decline from “some really incredibly high numbers.”
“But we still are at a very high rate of transmission in the community, namely at 320 cases per 100,000, and a positivity rate of 19.8 percent,” Dietrich said. “We’re looking closely at that. We’re pleased that the numbers are declining, but we are still well above the thresholds for high and substantial.”
Somers summarized the current state of things in the Perkiomen Valley School District, where a federal judge granted a preliminary injunction in favor of disabled students who demanded a return to masking, claiming it violated the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.
“A federal court in Philadelphia issued an order requiring the district to impose a mask requirement on its students,” Somers said. “That particular district had previously required masking and was in compliance with the state mask order.”
Somers said Perkiomen Valley School District’s Board of Directors voted 5-4 to remove its mask requirement, once the state mask mandate was no longer in effect.
“That led to a lawsuit being filed against the district by several families of students with disabilities, who are allegedly immunocompromised,” Somers said. “The suit alleged by not having a mask requirement in effect it would force a choice on these students with disabilities of either needing to come to school in a dangerous environment or needing to learn virtually.”
Somers said the court granted an emergency restraining order requiring the district to go back to masks required, and on Monday, issued a preliminary injunction, requiring that the district have mandatory masking.
“There are a number of other very similar cases that are currently being litigated throughout the state: There are two in western Pennsylvania and another in Delaware County where a similar request by students with disabilities was denied. However, there is a hearing scheduled later in the month for that case.”
Bottom line: Moving from a mask requirement to a mask optional one is a risk.
“A number of courts have recognized that moving from a mask requirement to a mask optional, at least during a period of high transmission, may cause issues in terms of compliance with that federal disability law,” Somers told the board.
He said other states, like Delaware and New Jersey, are planning on either ending or reducing mask requirements by the end of March.
“Certainly, our hope is transmission levels will drop. The current North Penn masking requirement is masking is required at certain levels of community transmission, that being high and substantial,” Somers said, “and optional at lower levels of transmission. We recognize the reality of the situation in terms of levels or risk and adjusting our policy at those levels of risk.”
Board Vice President Christian Fusco had an issue with the current Montgomery County Office of Public Health Mask to Stay Policy (MTS) as it relates to special needs students. According to the county Office of Public Health website, the MTS “allows staff and students who are exposed to COVID-19 in school or in the community, and who are asymptomatic, to continue to attend school with required mask-wearing at all times when around other people for ten days after the date of exposure.”
Furthermore, if an individual cannot always wear a mask during that 10-day period, then, according to the county health department, the exposed individual cannot participate in MTS, and must complete standard quarantine.
Fusco said a parent spoke to him about how their special needs son, who had contracted COVID-19, is unable to wear a mask due to his disability.
“If a student can’t wear a mask because of a disability and they contracted Covid, they can’t wear a mask and return to school,” Fusco said. “They can’t Mask to Stay. They can’t really access our streaming education, because not many of our special education learners are able to access their education. It’s a strong point the parent made.”
Fusco asked Somers if the board had the ability to waive the provision for those students and shorten their time in quarantine if they test negative. Somers said there is distinction between the ability to accommodate and making accommodations to the district’s own policy.
“Quarantine requirements (and Mask to Stay) are set by the Montgomery County Office of Public Health. Those criteria are not established by the district,” Somers said. “I would be hesitant to take any action that would be contrary to those steps.”
There could be a possibility to run scenarios by contacts in the office to see if exceptions can be made, Somers said.
However, Dietrich said the district has already had that discussion with the county Office of Public Health, and the conclusion was students who are unable to mask would not be able to participate in the Mask to Stay program.
“That is a recommendation, and in terms of what North Penn has done, we have followed recommendations from the Montgomery County Office of Public Health,” Dietrich said. “We do have a tiered system, which I think is positioning us in a better place than districts that move more quickly on no longer enforcing a mask requirement in their district when transmission levels were high.”
Fusco said something more must be done.
“It’s not acceptable to say, ‘Those are the rules, if you’re special needs, I’m not sure we can do much for you.’ We need to look and see if there’s something more,” he said. “We need to put our heads together and see if we can do something for those kids.”
The Feb. 8 North Penn School Board meeting can be viewed on the district YouTube page. Meetings are also broadcast on WNPV 98.5 FM.
See also:
Parents Sound Off About Masks at School Board Meeting After Image of Pennfield Student Goes Viral
North Penn Issues Statement After Image Surfaces of Teacher Taping Mask to Student
Police Called After Tempers Flare Over Mask Policy at North Penn School Board Meeting
Pennsylvania Bill Offering Optional Masking Advances Out of Committee
North Penn to Require Indoor Masking for All Students, Staff, and Visitors, Effective Thursday
