Federal judge dismisses school mask lawsuits brought by local parents

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Sep. 23—Heated arguments over face coverings in local schools spilled into federal court this week as parents of schoolchildren filed lawsuits seeking to remove mask mandates in three Montgomery County school districts.

But the suits against Huber Heights, Mad River and Northmont schools were terminated Thursday by U.S. District Court Judge Thomas M. Rose, citing federal law that prohibits parents alone from representing the interests of their minor children in court. Rose dismissed the cases without prejudice, meaning they can be refiled by licensed attorneys.

"The court emphasizes that this order does not constitute a decision on the merits of the claims," Rose wrote in the orders.

One of the lawsuit plaintiffs, Lynn-Ellen J. Graham, said in a complaint she sued the board of Huber Heights schools "for going against my constitutional rights as a parent to decide what is medically best for my child."

Graham said she pulled her son out of school prior to this year because no at-home learning option was possible.

"There is no law that states a school board, or a school board superintendent, supersedes my rights as a parent," Graham wrote. "By mandating my child wear a mask again, the board is not only taking away my right as a parent for informed consent for a medical device, the decision of the board is also taking away my child's rights in regards to a non-discriminatory education, which by not allowing children who do not want to wear a mask go to school, does just that."

Cassaundra Dietrich, Huber Heights City Schools spokeswoman, said the district's mask mandate will remain in place through at least Oct. 15.

"Our Board of Education will revisit the topic around that time and consider district data and the current status of the coronavirus pandemic in order to make an informed decision that prioritizes the safety of our students, staff and community," she said.

In the three mirroring lawsuits filed Monday in the Southern District of Ohio U.S. Court, the parents claimed the schools' mask policies, in addition to being at odds with the U.S. Constitution, violate federal and state laws.

The other parent plaintiffs were Benjamin Bawidamann, who has two children in the Northmont City School District, and Jennifer Blankenship, who has a child in the Mad River Local School District.

Each of the lawsuits named the districts' superintendents and their school board members as defendants.

Just over 60% of Dayton-area schools and districts are currently operating with mask mandates as a COVID-19 surge continues across Ohio. Of those 57 schools and districts, 32 have a full mask mandate (required for all students and staff), four have partial mask mandates (most elementary school only), and 21 list masks as recommended but optional.

All three school districts named in the terminated lawsuits have full mask mandates covering all students, teachers, staff and visitors.

The parents all alleged similarly in the court complaints that the districts made mask decisions without public discussion and those decisions were "arbitrary, capricious, based on ignorance without inquiry into facts, and in violation of the School Board's own policies and other applicable laws."

Each lawsuit included an affidavit from Stephen E. Petty, a certified industrial hygienist, who claims masks do little to protect against the spread of COVID-19.

Published in January, the Ohio Schools COVID-19 Evaluation showed children who were close contacts and appropriately masked had rates of COVID-19 that were similar to children with no known COVID-19 exposure in school. Researchers from Wright State University and Dayton Children's Hospital participated in the study.

"For many reasons, personal protective equipment (PPE) is the least desirable way to protect people from very small airborne aerosols. Moreover, masks are not PPE since they cannot be sealed and do not meet the provisions of the Occupational Safety and Health Administration (OSHA) Respiratory Protection Standard," Petty's affidavit read.

Petty stated that open windows and changes to HVAC systems are more effective at mitigating COVID-19 particles.

Each suit also cited a study by the International Journal of Environmental Research and Public Health outlining purported negative effects of wearing masks.

The three complaints quoted the study: "The overall possible resulting measurable drop in oxygen saturation (02) of the blood on the one hand and the increase in carbon dioxide (C02) on the other contribute to an increased noradrenergic stress response, with heart rate increase and respiratory rate increase, in some cases also to a significant blood pressure increase."

According to the Centers for Disease Control and Prevention, multiple research studies show that mask wearing has no significant adverse health effects for wearers. Studies of healthy hospital workers, older adults, and adults with COPD reported no change in oxygen or carbon dioxide levels while wearing a cloth or surgical mask either during rest or physical activity. Among 12 healthy non-smoking adults, there was minimal impact on respiration when wearing a mask compared with not wearing a mask.

Staff Writers Eileen McClory, Jeremy P. Kelley and Parker Perry contributed to this report.

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