North East School Board hit with anti-mask lawsuit; follows case against Millcreek board

The North East School Board has become the second board of school directors sued in Erie County over mask mandates, reflecting a statewide trend of parents going to court over what they claim were violations of their constitutional rights in a wide and varied fashion.

Among the claims in the North East case is that requiring quarantines for students and staff infected with COVID-19, as part of the North East School District's mask policy, was tantamount to solitary confinement and a violation of the Eighth Amendment right against cruel and unusual punishment.

Face masks coming back? Erie County reaches highest COVID-19 Community Level

The suit claims masks are "unapproved, experimental medical devices" under the federal Food and Drug Administration. And the suit claims the North East School District violated the First Amendment right of religious freedom by rejecting religion-based exemption requests for masks.

The lawsuit, filed in Erie County Common Pleas Court on Thursday, mirrors a suit that a representative of an Erie County parents' group filed against the Millcreek Township School Board on April 25.

Petition filed:Parents' group sues to remove Millcreek school directors over previous mask requirements

The Millcreek School Board's lawyers are arguing the suit is "nonsense" and "nothing more than political theater" and want an Erie County judge to toss it.

Both suits ask a judge to remove the school directors over their approval of mask mandates during the pandemic, citing the section of the Pennsylvania School Code that allows for removal of school directors. The petitioners want the judge to pick replacement school directors.

Millcreek board's response:Calling it 'nonsense,' Millcreek School Board wants parents' mask lawsuit tossed

The North East suit seeks the ouster of all nine school directors. The Millcreek case seeks the ouster of seven of the nine school directors, leaving untouched a director who favored optional masking and a director who is new to the board.

More lawsuits to come?

The petitioners who filed the respective lawsuits are representing themselves. They filed the suits under the auspices of a group called Erie County PA Parents Protecting Children, according to news releases from the organization.

The person who filed the North East lawsuit as the lead petitioner, Erin Beckes, described in the suit as a parent, could not be immediately reached for comment. An Erie County PA Parents Protecting Children news release said the North East School Board had "willfully violated" the state constitution by requiring masks.

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"Actions have consequences, and the Board must be held accountable," Beckes said in the news release.

The parent who filed the Millcreek case is Troy Prozan, a founder of Erie County PA Parents Protecting Children. He said on Friday that "a few more lawsuits" might be coming against other school boards locally, though he said he could not be sure. He said he has nothing to do with the other lawsuits.

"There are other parents in the grassroots coalitions in other districts that are doing it," Prozan said.

The North East and Millcreek suits are similar to legal actions parents have taken against school directors elsewhere in Pennsylvania, including in Chester County, near Philadelphia. Other school boards, including the Warren County School Board, have been sued for not requiring masks.

Warren County case:Warren County School District paid winner's legal fees in mask case. Here's the amount

Delaware County opt-out case:Parents sue Delaware Valley School District over opt-out option for masking

The North East and Millcreek lawsuits come as COVID-19 infection rates have spiked in Erie County. The increase raises the possibility that school boards and school officials will have to review whether to mandate masks once more.

The Erie School District, the largest in the region with more than 10,000 students, said on Friday that it will return to universal masking for students and staff on Monday.

Erie School District action:Erie School District mandates face masks as Erie County reaches high COVID Community Level

Focus on state Supreme Court ruling

The Millcreek and North East suits claim the school directors violated their duties by imposing mandatory mask mandates. Both districts lifted the mandates earlier this year — North East's optional policy was effective on Feb. 28 and Millcreek's on March 1 — as rates of COVID-19 infections declined and after the state Supreme Court in December struck down the state Department of Health's mask mandate from September.

The North East and Millcreek lawsuits claim the school directors violated the state and federal constitutions by following a statewide mask mandate that the state Supreme Court ultimately said was improper.

However, the state Supreme Court struck down the mandate solely on procedural grounds, saying in a 58-page opinion that Acting State Health Secretary Allison Beam circumvented the rulemaking process in ordering the mandate. The Supreme Court never said school directors could not require masks as part of their regulatory duties.

Statewide issue:Pa. school boards bearing brunt of anti-mask parents' anger. Hear what the sides say

Increase in cases:COVID-19 cases rise in Erie County to level not seen since omicron surge

Dismissal request likely on way

Erie County Judge Erin Connelly Marucci is assigned the Millcreek case and had not set a hearing date on the Millcreek School Board's dismissal request as of Friday morning, according to the docket. The North East case did not immediately get a judicial assignment.

Mandates lifted:New COVID-19 metrics help end mask mandates at Erie, Millcreek schools

In response to the Millcreek lawsuit, lawyers for the Millcreek School Board on May 5 asked for dismissal of the petition for removal. The lawyers are arguing the suit is groundless and that the Millcreek School Board, among other things, was acting in the best interest of students in requiring masks and that the board mandated masks under the law as it existed at the time — the state Health Department's order.

The solicitor for the Millcreek and North East school districts, Timothy Sennett, could not be immediately reached for comment about the North East case. His legal response to the North East suit is expected to be similar to his response to the Millcreek case.

In the Millcreek response, Sennett highlighted a section of Pennsylvania School Code that allows a judge to require the losing party in a petition for removal to pay the winner's legal fees in the case.

What's next?:Some Erie County schools will mask, others won't if COVID-19 community level rises

In Millcreek's response, Sennett and the other lawyers also ask a judge to put politics aside and toss the anti-mask lawsuit.

"For various reasons, COVID-19 has become a political lightning rod with individuals and groups using the pandemic as a means of scoring political points," according to the Millcreek School Board's response. "But the disease's impact cannot be denied."

Face masks coming back?Erie County reaches highest COVID-19 Community Level

During the pandemic, according to the response, "elected officials have been placed in the unenviable position of balancing personal liberties with the community's health and safety. And perhaps no group of public officials has faced greater challenges than school boards."

Contact Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.

This article originally appeared on Erie Times-News: Anti-mask lawsuits: Petition seeks removal of North East School Board