- After state Supreme Court set aside statewide mask mandate and COVID-19 cases declined, Millcreek School Board made masks optional in schools starting March 1
- Former mask policy led founder of parents’ group to sue Millcreek School Board in April, seeking ouster of all but two board members
- School Board, in response, asks judge to dismiss case, impose costs; Judge Erin Connelly Marucci assigned case
A group of parents upset over the Millcreek Township School District’s now-expired mask mandate went to court in April claiming the pandemic-induced policy violated multiple constitutional protections. The group’s lawsuit cited the Eighth Amendment’s ban on cruel and unusual punishment and the Pennsylvania constitution’s guarantee of the right to clean air.
The Millcreek School Board’s says all of the claims are meritless.
The board wants the lawsuit tossed — and it wants the parent behind the suit to pay for filing it.
The suit — in which a representative of a parents’ group is seeking removal of seven of the nine Millcreek school directors — is procedurally flawed and “lacks any legal or factual support,” lawyers for the School Board said in a response to the suit.
The parent who filed the suit “should not be given a platform in this Court to spew such nonsense,” the School Board said in the response.
It asks a judge to quash the suit and impose the costs of the litigation on the parent who filed it, Troy Prozan, a founder of the group Erie County PA Parents Protecting Children. Prozan is representing himself.
Prozan “is simply trying to score political points by filing a frivolous action built on wild, unsubstantiated accusations,” according to the School Board’s response. The board in the response called the suit “nothing more than political theater” and said it “should be rejected out of hand.”
The School Board in the response said the members were following the law as it existed at the time in imposing the mask mandate during much of pandemic. The board said state law gives school directors broad discretion in regulating student conduct, including what kind of clothes they can wear, especially when a school district is dealing with student health.
“Put simply, there is no legal authority — statutory, regulatory, decisional or otherwise — supporting the proposition that public school boards cannot require masking on their property,” according to the response.
The Millcreek School Board, according to the response, “properly exercised its express and inherent authority to protect its students and staff, and the community at large, by requiring facial coverings on school property.”
The parents’ group could try to unseat the seven school directors in the next election for Millcreek School Board. Prozan has said the removal request represents “the first step to get them out of office.”
The School Board is arguing that Prozan is taking the wrong approach under the law.
“No one likes to wear masks,” according to the board’s response. Citing a line from a 2021 U.S. District Court ruling on masks, the board said the law “does not shield us from all things we dislike.”
If Prozan “dislikes the School Board’s action, his remedy is found at the ballot box,” not through a removal action, according to the board’s response. “He should not be permitted to use this Court as a microphone to achieve his political ends.”
Case to go before a judge
The lawyers for the Millcreek School Board — Millcreek School District Solicitor Timothy Sennett and his colleagues Michael Musone and Philip Seaver-Hall — filed the School Board’s response in Erie County Common Pleas Court on Thursday, the same day that Judge Erin Connelly Marucci was assigned the case. She had not scheduled a hearing as of early Tuesday afternoon.
Prozan filed the suit — known as a petition for removal — on April 25. Though he is the only person who signed the suit, he included with it a petition that 25 other people signed in support of the position of Prozan and his group, Erie County PA Parents Protecting Children.
Prozan’s claims include that the Millcreek school directors, in voting to approve masks for most of the pandemic, violated their oaths of office by — among other things — practicing medicine without a license, committing child abuse and violating the constitutional rights of parents and students.
The suit targets for removal of the seven school directors who were in office at the time of the mask mandate and voted to support it: Millcreek School Board President Gary Winschel, Vice President Michael Lindner and board members Janine McClintic, Jason Dean, Shirley Winschel, Janis Filbeck and Sallie Newsham.
Prozan said he is not seeking the removal of School Director Michael Kobylka because he supported optional masking. The ninth Millcreek school director, Kim Lupichuk, was appointed this year and is also not included in the removal request.
‘A political lightning rod’
The Millcreek School Board on Feb. 28 rescinded its mandatory mask policy by making masks optional for its staff and 6,500 students. The board said it made masks optional in response to a decline in COVID-19 infections and due to the state Supreme Court’s Dec. 10 ruling that invalidated, on procedural grounds, the acting state secretary of health’s statewide mask mandate, which had gone into effect in September. The Supreme Court detailed its decision in a 58-page opinion issued Dec. 23.
Prozan went to court despite the School Board’s decision to make masks optional and get rid of the mandatory policy that had incensed Prozan and pockets of other parents to begin with. In his suit, Prozan is arguing that the seven school directors should be removed from office because, in imposing the mask mandate, they followed a statewide rule that the state Supreme Court eventually struck down.
Prozan has said the board should have eliminated the mask requirement immediately after the Supreme Court ruling, and he said he and other parents are upset that the district on Feb. 28 also voted to require masks in schools again where the incidence of COVID-19 cases is above 2%.
Prozan is suing under a section of the Pennsylvania School Code that allows residents to petition for the removal of school directors for neglect of duty or failure to perform a duty. A judge who rules in favor of such a petition can appoint replacements to serve their unexpired terms. The School Code allows a judge in a removal case to impose legal costs on the losing party.
As the Millcreek School Board noted in its response, the filing of the suit indicates the depth of the antipathy to mask policies during the pandemic, leading to further political polarization nationwide.
“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 School Board’s response. “But the disease’s impact cannot be denied.
“As the country approaches 1 million deaths and over 80 million cases, 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, who are tasked with protecting the health and safety of children as well as an aging workforce.
“Without exception, school boards desire in-person learning for students. Thus, school boards must also balance the increased health risks that accompany in-person instruction. One proven way to mitigate the health risks of in-person instruction is through a policy of mandatory facial coverings.”
Acting ‘in good faith’
Much of Prozan’s case is based on his argument that the state Supreme Court’s invalidation of the statewide mask mandate on Dec. 10 shows that the Millcreek School Board acted improperly because it followed a law later determined to be unlawful.
In its response, the Millcreek School Board emphasized that the school directors were obligated to follow the law as it existed at the time and faced federal litigation if they did not. The board’s lawyers highlighted that the state Supreme Court set aside the mask mandate on procedural grounds, finding that Gov. Tom Wolf’s acting state secretary of health, Alison Beam, circumvented the formal rulemaking requirements in ordering the mandate.
School directors debate:Debate continues as Millcreek School Board considers easing mask mandate for most on March 1
In striking down the mask mandate, the state Supreme Court “did not hold that the Wolf Administration lacked the power to require masking; nor did the Court cast doubt on the authority of school boards to require masking,” according to the School Board’s response.
The board’s lawyers also said in the response, referring to Prozan, “Petitioner essentially argues that the School Board should have had the clairvoyance to know that the Wolf Administration’s mask mandate was going to be invalidated, refused to abide by this mandate and risked the very real possibility of federal litigation. The School Board exercised its discretion reasonably, in good faith, and in accordance with the clear consensus of caselaw.”
Who will have to pay?
The focus on the law makes up most of the School Board’s response, but the board also argues that the judge should dismiss the suit due to procedural errors. The board in the response said Prozan erred by having a constable serve the suit on the school directors, rather than the Erie County Sheriff’s Office, as the School Board said the law requires.
And though 25 people joined Prozan in signing a petition supporting the suit, the School Board said Prozan erred by failing to follow the School Code and have three resident taxpayers verify the suit “by oath or affirmation,” a process that only Prozan completed, according to his suit.
The School Board in its response cautioned any other taxpayers who might join Prozan in verifying the suit and becoming officially part of the case. The board, according to the response, intends on seeking legal costs from anyone who is officially part of the case.
“That fact,” according to the response, “needs to be crystal clear.”