Jan 20, 2022 3 min read

A group of parents has filed civil action against the Upper St. Clair School Board in connection with its Jan. 10 vote to make the wearing of face masks optional instead of required.

The suit was filed Jan. 19 in U.S. District Court on behalf of students who “suffer from disabilities which render them medically vulnerable to COVID-19.”

The plaintiffs are five couples, each listed as John and Jane Doe, whose children attend Upper St. Clair schools.

Named as defendants are all nine members of the school board, even though two, Patrick Hewitt, and Jennifer Schnore, voted against the mask-related change to the district’s health and safety plan.

“The latter defendants are only included to allow the court to grant the relief requested herein; no aspersions as to their personal actions as board members are intended by this filing,” the 45-page document filed by the plaintiffs’ attorney, Kenneth Behrend, states.

Voting in favor of optional masks were Phillip Elias, Daphna Gans, Barbara Bolas, Louis Mafrice Jr., Michael Mascaro, Angela Petersen and Danielle Wetzel. The change is effective Jan. 24.

The 45-page document filed in court by the plaintiffs’ attorney, Kenneth Behrend, states the class-action complaint seeks “declaratory and injunctive relief for violations of the Americans With Disabilities Act and Section 504 of the Rehabilitation Act.”

Both the federal laws prohibit the exclusion of students with disabilities from public educational programs and activities.

“The board’s vote fails to account for the fact that there are as many as 400 children in the school district who are medically fragile, disabled students who are either high risk or enhanced risk for infection, and require the protection afforded by universal masking to reduce the risk of spread of COVID-19, as well as helps them to have access to the school buildings for in-person instruction,” the lawsuit contends.

In June, the school board adopted a health and safety plan that required universal masking in school buildings. An update to the plan in August continued the requirement.

According to the court filing, the change to “optional masking pits child against child, endangering the lives of children with disabilities. Parents of schoolchildren with disabilities are forced to hope other parents will require masking, and not opt out.”

“But when parents permit their children to opt out of mask wearing, medically fragile children with disabilities and indeed all children are subjected to serious illness or even death as a result of COVID-19 being spread through unmasked breathing, coughing, and sneezing,” the document states.

The lawsuit requests the court issue a temporary restraining order and “preliminary and permanent injunctive relief enjoining defendants from violating the Americans With Disabilities Act and Section 504 by permitting optional masking in the school district.”