District court in Pittsburgh split on school masking, issue likely to be decided by appellate court

The underlying facts in each case are the same.

The North Allegheny and Upper Saint Clair school boards voted recently to reverse mandatory masking policies. Medically vulnerable students argued that the reversal put them at risk of contracting covid-19 and the decision violated their rights under the Americans with Disabilities Act.

Lawsuits were filed against both districts in federal court in Pittsburgh.

In the North Allegheny case, 10 days ago, U.S. District Judge Marilyn Horan sided with the students and reinstated the mandate.

Four days later, in the other Upper Saint Clair case, U.S. District Judge William S. Stickman, sided with the school board.

The same court, but two completely different decisions.

“It’s rare to have the exact same claims with diametrically opposed rulings within a week of each other in the same courthouse,” said attorney Kenneth Behrend, who represents the student plaintiffs in both the Upper Saint Clair and North Allegheny cases. “When an area of law is developing, there are some bumps along the way until the appellate courts can clear up the discrepancy.”

On Sunday, the Third U.S. Circuit Court of Appeals granted Behrend’s request for an emergency injunction keeping in place the mask mandate in Upper Saint Clair until it can decide the issue more fully, likely in the coming days.

Now, the North Allegheny School District has asked the Third Circuit to take up its case, as well.

“Courts look at if there are inconsistent decisions at the lower level, and obviously, when Judge Stickman’s decision came out, we had directly conflicting opinions,” said North Allegheny attorney Stephen P. Engel. “Getting that decision, we felt that the Third Circuit would be much more inclined to hear ours at the same time.”

He filed a notice of appeal on Wednesday.

Behrend said there remains a question of whether the appellate court will even hear the North Allegheny case. To get the Third Circuit to take an appeal on a temporary restraining order, he said, the district must show that it is being harmed by Horan’s decision to continue mandatory masking.

“North Allegheny has to show some injury, and it can’t be, ‘The school board doesn’t like the decision,’” Behrend said. “We are seeking to protect the children. They’re asking the court to undo the protection of the children. We don’t think North Allegheny has any appellate rights on this issue whatsoever, none, zero.”

He said the competing decisions in this case make no sense.

“It’s especially puzzling to the clients how can one group win and one group lose on the same set of facts,” Behrend said. “To the court, it doesn’t look good, but that’s why you have the circuit courts, to clear up the discrepancy.”

Just this week, the Eighth U.S. Circuit Court of Appeals, which includes Iowa, Arkansas, Minnesota, Missouri, Nebraska and North and South Dakota, issued a decision in favor of medically vulnerable students in Iowa, finding that mask requirements are reasonable accommodations required by federal disability law to protect their rights.

Duquesne University law professor Steven Baicker-McKee said that judges in federal district courts are only bound by appellate decisions in their circuit. Judges in the same district court are not required to follow each other at all.

“If it’s another Pittsburgh judge, you’d give it much more deference, and you may be likely to follow their opinion, but you still have no obligation to,” he said. “There’s room for disagreement.”

Especially, he continued, if it’s a newly developing area of the law.

“Different people can come to different conclusions in the law based on the exact same arguments and set of facts,” Baicker-McKee said.

In the North Allegheny case, Engel said that the temporary restraining order keeping mandatory masking in place was inappropriate. He argues that the district court doesn’t have jurisdiction and that the medically vulnerable students don’t have standing because they cannot show that they’ve been harmed by a lack of masking.

“It’s purely speculative,” he said. “You’re not guaranteed to get (covid-19) if everybody doesn’t wear masks.”

Ultimately, the district is looking to have the lawsuit against it dismissed, Engel said.

In the meantime, on Wednesday in the Upper Saint Clair case in the Third Circuit, the American Academy of Pediatrics and its Pennsylvania chapter filed a friend-of-the-court brief supporting mandatory masking in schools.

With a membership of more than 67,000 pediatricians or pediatric specialists, the academy wrote that it has spent the past 22 months assessing the measures that reduce the spread of covid-19.

The group said it found that “universal mask policies in schools significantly reduce the spread of covid-19 and protect all children, particularly those who are medically vulnerable.”

In its brief, the group wrote that requiring a universal masking policy — in this case, in the Upper St. Clair School District — “is firmly in the public interest.”

“Universal school masking policies substantially reduce the risk of death and serious illness among school-age children and their families,” the brief said. “And slowing the spread of covid-19 in the community helps everyone, whether they attend school or not.”

According to the brief, as of Jan. 20, more than 10.6 million cases of covid-19 have been reported in U.S. children, representing more than 18.4% of total cases.

Of that number, 58% have come since Aug. 13, which the brief attributed to the return to in-person schooling and the emergence of the delta and omicron variants. Across the country, 27 children died in the week leading up to Jan. 20, the brief said.

“The risks are especially high for children with certain underlying conditions who contract covid-19,” the brief said, noting they are more likely to experience severe symptoms and require hospitalization.

The association’s review of the medical literature, they wrote, shows that “masks are both effective and safe.”

Arguing that the medically vulnerable students can continue to wear masks — which Stickman asserted in his opinion last week — does not address the fact that when they are around unmasked people, they remain at risk, the brief said.

“Reliance on that fact would misapprehend the true benefit of a mask policy, which is to protect not the mask-wearer, but those around him,” the brief said.

Citing Stickman’s opinion that noted the school district provides alternative measures to protect against spread of covid-19, including physical distancing and ventilation, the association wrote that “there is no dispute that such strategies are substantially less effective if the crucial tool of universal masking is ruled out.”