Montgomery County judge denies parents’ effort to stop health board’s order to shut down schools; another lawsuit filed

A Montgomery County judge on Friday rejected a request by parents seeking an order to stop a county board of health directive that all K-12 schools be shut down for in-person instruction for two weeks starting Monday.

But the battle evidently is not over.

Shortly after Judge Richard Haaz denied the parents’ petition, which alleged the county violated Pennsylvania’s open public meetings law, parents filed a second lawsuit in federal court — this one challenging the merits of the shutdown order and alleging their due process and equal protection rights were violated.

Parents sent “a message to the county that we are not going to stand by and just accept them shutting down our schools ... without supporting evidence,” John Niehls, a parent and head of school at Coventry Christian Schools in Pottstown, said in a Facebook post responding to Haaz’s ruling. “Certainly, they got that message.”

The county health board’s order, issued as coronavirus cases surge across the region and country, ignited a parental backlash that has spurred lawn-sign campaigns and protests — including outside the home of the chairperson of the county commissioners — brought thousands together in a Facebook group, and generated $10,000 through a GoFundMe campaign to support litigation.

“It just came flooding in,” said Liz Weir, one of three plaintiffs who sued the county and is an administrator of a “Parents for In Person Education” Facebook group created last Friday that now has 4,600 members.

Weir, who works in advertising and has two children in the Wissahickon School District and a third in a cyber charter school, said she hadn’t paid much attention to her county government until the shutdown — which for her began when she received an email from the Wissahickon superintendent notifying parents the county was considering closing schools.

”I started to panic,” said Weir, given her family’s “horrible” experience when schools were forced to abruptly shift to virtual instruction this spring.

When she logged on to the board of health’s Zoom meeting last Thursday — one of 500 people in the virtual room, the maximum that could be admitted — Weir was one of dozens of parents who argued their schools had opened this fall without outbreaks and should not be closed down, though county health officials warned that the virus’ spike was likely to worsen over Thanksgiving, increasing the risk of spread within schools and the community at large.

» READ MORE: As COVID-19 cases surge, should schools stay open? Around the Philly region, approaches vary wildly.

After close to three hours of comments, the board announced it would reconvene the next day. Last Friday, its five members voted unanimously to impose the order, which also applies to school extracurriculars.

“To not listen to the cries of the people — what are you guys functioning as, this oligarchy?” asked Kaitlin Derstine, a parent of a 5-year-old with special needs in the Souderton Area School District who was also a plaintiff in the case and an administrator in the Facebook group.

She was recruited to the burgeoning parent organization by Niehls, who had heard her address the board Thursday. Niehls also created the Facebook group and launched the GoFundMe.

Soon, parents from different communities — some of them engaged in their own campaigns pushing for their local schools to open or stay open — were joining in the new effort, brainstorming strategies and sharing messages they had sent county officials, including Commissioners’ Chair Val Arkoosh, a physician who endorsed the shutdown to try to tamp down a further uptick.

A group of parents who are physicians have also organized against the order, signing a letter sent to Montgomery County officials Thursday night urging them to prioritize keeping schools open.

“We’re worried that once this becomes the norm ... it’s going to be harder for other school districts to stay open,” said Alison Leff, an internal medicine physician who has two children in middle and high school in the Radnor School District. The letter, signed by 100, said Leff, who drafted it, says that if shutdowns are necessary mitigation strategies for the coronavirus, “then those strategies should be aimed at containing activities that have been shown to lead to spread rather than closing schools and harming the future of our country’s children.”

While Pennsylvania isn’t reporting data on school outbreaks, local health officials have said they have seen relatively few instances of the virus spreading through schools.

» READ MORE: How are coronavirus cases in schools being reported? ‘It’s a hodge-podgey mess.’

In Montgomery County, Arkoosh has said the recent rise in cases has been traced to gatherings including Halloween parties, sleepovers, and youth sports.

Some in the fast-growing Parents for In Person Education Facebook group have expressed outrage that leaders would tell parents and children what activities they should not participate in during the pandemic.

In one instance this week, a man posted a video of a Methacton school board member remarking that “the kids aren’t getting COVID on the playing field,” but at gatherings like sleepovers and birthday parties that have “got to stop.”

“A little power can be dangerous,” the man who posted the video commented.

“It’s hard when you have 4,500 people to try to referee things,” Weir said, adding that she understood parents’ frustration: “I would resent it if someone told me what to do with my kids.”

While some parents have expressed opposition to mask mandates or restrictions beyond schools, Weir said the group is “agnostic” on those issues. “We just keep trying as moderators and leaders of the group to push them to stay focused” and “leave those shiny objects for another conversation,” she said.

What has mobilized many parents is the specter of another prolonged shutdown — a prospect raised in part by Montgomery County officials, who presented a proposed order during last week’s Zoom meeting that included the phrase “with potential for expansion beyond this date.” That language was struck from the order ultimately approved by the board of health.

During Friday’s court hearing, lawyers for the parents questioned board of health members on why the language was dropped, and what the board had discussed during a private meeting last Thursday night that also included Arkoosh, health department officials, and the county’s solicitor.

“We were all in a bit of shock and really needed to, you know, summarize what just happened,” said one of the board members, Steven Katz. “There was a lot of outrage and some not nice things said at the public meeting.” Lawyers for the county said it wasn’t illegal for the board to meet in private.

In denying the parents’ request for an injunction, Haaz said they had not proven that the board deliberated in secret, in violation of the Sunshine Act.

The federal lawsuit filed Friday night takes a different approach, arguing that the county unfairly targeted schools while leaving “documented super-spreader sites” like gyms and restaurants open. A county spokesperson did not immediately respond to a request for comment.

Leff, the physician with children in Radnor schools, suggested the judge’s finding wouldn’t end the fight to keep schools open.

“This is a network that’s growing. ... There’s a momentum,” Leff said. “We need to do this for our kids.”