Four TESD parents lose fight against mask mandate

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By Ben Shapiro, Co-Copy Editor On the first day of the 2021-2022 school year, parents Alicia Geerlings, Andrew McLellan, Sara Marvin and David Governanti all sent their children to one of the Tredyffrin/Easttown School District’s public schools without masks. In each case, students were denied entry to their in-person classes because they refused to comply...

By Ben Shapiro, Co-Copy Editor

On the first day of the 2021-2022 school year, parents Alicia Geerlings, Andrew McLellan, Sara Marvin and David Governanti all sent their children to one of the Tredyffrin/Easttown School District’s public schools without masks. In each case, students were denied entry to their in-person classes because they refused to comply with the district’s mask mandate that “each teacher, child/student, staff or visitor working, attending or visiting a school entity shall wear a face covering indoors, regardless of vaccination status.” Some exceptions are made in cases where mask wearing would cause harm to the individual.

Just over a week later, on Sept. 8, the four parents joined together in a lawsuit against the school district, represented by Gary Samms of Obermayer, Rebbmann, Maxwell and Hippell, LLP. 

Pennsylvania’s Acting Secretary of Health ordered “face coverings to be worn in all school entities” on Aug. 31, 2021 to “prevent and control the spread of disease.” While individuals have the right to request a medical exemption to wearing masks, a parent would have to waive their child’s Health Insurance Portability and Accountability Act (HIPAA) rights to do so. The Plaintiffs did not feel comfortable with this, and none took up the offer.

Arguing three claims (religious discrimination, unapproved medical devices and the Secretary of Health’s authority), the Plaintiffs moved for a temporary restraining order — a decision that, if ruled in their favor, would have immediately required the district to remove its mask mandate. The hearing took place in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 14 and was ruled by Judge Mitchell Goldberg.

According to precedent set by the Supreme Court case Winter, Secretary of the Navy, et al. v Natural Resources Defense Council, inc., et al, a judge can only grant a temporary restraining order if the party is “likely to succeed on the merits (of their claim), are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor and that an injunction is in the public interest.” Judge Goldberg, ruling that the order did not meet the qualifications, denied the requested temporary restraining order. 

Claim one: Religious discrimination 

Claiming that requiring their children to wear masks while in school violates their First Amendment rights, the Plaintiffs argued that the mandate discriminated against them due to their religion. In Goldberg’s memorandum (a judge’s written decision for a court hearing), he concluded that the Plaintiffs’ belief was not religious in nature and therefore did not qualify them for receiving a temporary restraining order.

“In Ms. Marvin’s case, she has not demonstrated that she practices keeping her face uncovered the way followers of Catholicism practice communion or those of Jewish faith practice eating unleavened bread on Passover,” Goldberg wrote. “Her decision to eschew masks corresponds to no teaching of her community, upbringing or other comprehensive belief-system, nor does she practice it through formal and external signs such as holidays, ceremonies or clergy.”

Claim two: Unapproved medical devices

To the Plaintiffs’ second argument that face masks are not approved medical devices by the Food and Drug Administration (FDA), the defense argued that the FDA does not have to “approve” an item for the school to require or encourage it.

“On a factual level, the FDA also has not approved clothes and water bottles – devices that protect children from spreading germs, and dehydration, respectively,” a TESD party response stated. “However, there is no uproar about the District’s requirement that students be clothed or its encouragement that students stay hydrated.”

Claim three: The Secretary of Health’s authority

Whether the mask mandate had legal basis was the subject of the Plaintiffs’ third and final claim. They argued that the Pennsylvania Acting Secretary of Health lacked authority to issue her Aug. 31 order but did not provide an explanation sufficient to persuade the judge. Samms and the Plaintiffs failed to respond to phone calls, emails or text messages about this case, thus refusing to speak on the matter. 

On Nov. 10, however, the Pennsylvania Commonwealth Court voted 4-1 to strike down the Acting Secretary of Health’s order. Noting that this decision was not made “regarding the science or efficacy of mask-wearing or the politics underlying (it),” the court simply ruled that the order lacked legislative authority. Immediately after, Gov. Wolf’s Administration appealed the decision, sending it to the Pennsylvania Supreme Court.

With no official decision on the matter as of now, the Plaintiff’s claim is neither endorsed nor outright rejected.

The jurisdiction

At the end of the hearing, Goldberg concluded that he did not believe that the Plaintiffs would win their argument “on the merits of their claims” and denied the request for a temporary restraining order.

“In so ruling, I do not decide whether Plaintiffs’ claims will ultimately succeed or fail. Rather, I find that, at this early stage of this litigation, Plaintiffs have not shown that the District’s policy should be set aside before a full adjudication of the merits,” Goldberg stated in his memorandum. 

The Plaintiffs failed to file a petition for appeal in the allotted 30-day period, thus ending the lawsuit. Following the aforementioned Commonwealth Court decision on Nov. 10, superintendent Richard Gusick sent out an email blast noting that TESD’s mask mandate will remain intact until further notice.

“TESD is aware of today’s ruling by the Pennsylvania Commonwealth Court. As such, at this time the masking requirement will remain in effect for TESD schools,” Gusick wrote. “We recognize that parents and residents within TESD hold different views about mandated masking. Until the matter becomes further settled, we ask for your continued patience and cooperation by continuing to send your child to school with a required mask.”

Pending the Pennsylvania Supreme Court decision, the mask mandate remains in the hands of the school board.


Ben Shapiro can be reached at [email protected]

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