Judge orders Perkiomen Valley School District to continue masking to protect disabled students

A federal judge on Monday ordered the Perkiomen Valley School District to keep masking in place, granting a preliminary injunction sought by parents of children with disabilities that put them at higher risk of serious complications from COVID-19.

The decision effectively extends an earlier order for masking during the school day that Judge Wendy Beetlestone had issued against the Montgomery County district, but without any end date.

In her opinion, Beetlestone agreed with lawyers for the plaintiffs — three children with medical conditions ranging from asthma to chronic bronchitis and pneumonia, that in some cases require taking immunosuppressant drugs — that the children were at heightened risk of severe illness or death if they contracted the virus, and that “universal masking meaningfully reduces the transmission of COVID-19 in schools.” As a result, she said, optional masking prevents the students from “meaningfully accessing” in-person education, a valid claim under the Americans with Disabilities Act.

» READ MORE: Hearing over Montco school district’s mask-optional policy centers on rights of children with disabilities

The order comes as more area districts are revisiting mask requirements amid declining COVID-19 cases and growing calls by some experts to provide greater normalcy to children nearly two years into the pandemic. While the order only applies to Perkiomen Valley, it is likely to be reviewed by other districts as they revise health and safety plans.

Beetlestone noted in her opinion that Perkiomen Valley’s mask-optional policy — which it implemented for two days last month before she issued a temporary restraining order — wasn’t dependent on any criteria for taking effect. If the district wants to amend its plan “to incorporate such limiting criteria, or should circumstances change — for example, if the CDC releases new and applicable guidance, or if there are relevant changes in the incidence rates of COVID-19 in the community,” the district could file a motion to lift the injunction, she said.

Brian Subers, a lawyer for the district, said the district would consider that option as well as “other legal remedies.” He declined to comment further on the judge’s decision.

Carmen De Gisi, a lawyer for the parents and students — who are not named in court filings — said the ruling was a “relief” to his clients. “It’s incredibly stressful, worrisome, to know as a parent that your child’s at increased risk from severe illness or death,” said De Gisi, who also represents plaintiffs in a similar case against the Springfield School District in Delaware County. Another federal judge declined to impose a temporary restraining order in that case.

Two cases challenging mask policies in western Pennsylvania school districts are pending before the Third Circuit Court of Appeals, which could issue a decision that would affect districts across Pennsylvania, New Jersey, and Delaware. Oral arguments are not scheduled until late March, however.

» READ MORE: Masks are still a part of new COVID-19 guidelines for schools. But some around Philly aren’t requiring them.

The Perkiomen Valley district had argued that it was time to give parents and children the choice to learn and socialize without masks, and that families seeking added protection could still opt to wear them.

But Beetlestone pointed to continued recommendations from the CDC and American Academy of Pediatrics in favor of universal masking, and guidance from the Montgomery County Office of Public Health that districts approve masking requirements “aligned with current CDC guidelines.” She also cited the CDC in concluding that the children suing faced higher risks because of their conditions.

While the district had contended that students concerned about their health could wear high-quality masks and employ “one-way masking,” Beetlestone said the burden wasn’t on students with disabilities “to protect themselves from discriminatory practices.” Rather, the district must “make reasonable accommodations” to provide the students — who said they had suffered during virtual learning — with meaningful access to their education.

The order requires the district to enforce an earlier version of its health and safety plan that requires masking during the school day, but not during athletics or other extracurriculars.