Plaintiffs In Montco School District Mask Lawsuit Seek Attorney Fees

PERKIOMEN VALLEY, PA — Attorneys representing a class of student plaintiffs in federal civil rights litigation against a Montgomery County school district over a decision to rescind mandatory universal masking this past school year are now asking a court for legal fees in the matter.

Lawyers Carmen A. De Gisi, of Lafayette Hill, Pa., and Luke T. Pepper, of Englewood, CO, filed a motion earlier this week at the U.S. District Court for the Eastern District of Pennsylvania seeking to have a judge award attorneys' fees in a case against the Perkiomen Valley School District.

The attorneys represented a class of plaintiffs who sued this past school year when the local school board, under new leadership, decided to remove mandatory masking requirements for students and staff.

Related: Montco School District Sued For Removing Mask Requirement

The class, who were school children said to be medically fragile and in danger of contracting COVID-19, said the move was a civil rights violation because it would force them to choose between staying in school and potentially catching the virus or having to stay at home and learn remotely and be deprived of in-person education.

"As a result, the [school] board forced disabled students and their families to make the untenable choice of accepting the significant risk of serious illness and/or death for access to in-person education or attending school virtually," the lawyers had written in court papers.

The attorneys had argued that the optional masking policy during part of the 2021-22 school year was discriminatory because it violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

Earlier this month, U.S. District Judge Wendy Beetlestone dismissed the lawsuit without prejudice given the current climate with the coronavirus.

Related: Federal Judge Dismisses Mask Lawsuit Against Montco School District

In their petition that was filed this week, the plaintiffs' attorneys said that they should be entitled to a total of just over $242,000 dollars for work they did on the case.

The De Gisi Law Group is seeking fees in the amount of $87,900 while Pepper's law firm seeks $154,560.

The team is also asking for attorneys' fees in the amount of $3,430 for Kenneth R. Behrend of the Behrend Law Group, which was brought on as a consultant for the plaintiffs.

"For reasons set forth in detail in the brief in support of this motion, Plaintiffs are prevailing parties, since they received merits-based relief based upon the injunctive relief provided by this court," the plaintiffs' legal team wrote in their motion. "Plaintiffs received 100% of the relief they requested of universal masking while the transmission level for COVID-19 was in 'High' and 'Substantial,' and optional masking while the transmission level was 'Moderate' or 'Low' per the CDC guidelines."

In a brief in support of their motion, the lawyers wrote that they are entitled to attorneys' fees because they prevailed in the litigation, even though it was recently dismissed without prejudice by Judge Beetlestone.

They point to the fact that Beetlestone initially granted an injunction in the case that had forced the district back into mandatory universal masking.

The district appealed to the U.S. Court of Appeals for the Third Circuit, but the appeal ended up being dismissed.

"As a direct result of the merits-based injunctive relief provided by this Court, Plaintiffs fulfilled the purpose of this lawsuit: preserving equal access to the schools for the medically fragile and immunocompromised disabled children by providing protection through universal masking while the CDC Community Transmission level remained in the 'High' or 'Substantial' level," the plaintiffs' attorneys wrote in their petition for fees.

At the time that the Perkiomen Valley School District removed its masking requirement, it was one of only two Montgomery County school districts to take such action given the then-climate with the pandemic, however, ironically, soon after the filing of the lawsuit COVID-19 numbers began to change and other school districts across the county started revising their facemask policies to allow for optional, as opposed to mandatory, masking.

But because the Perkiomen Valley School District was now embroiled in litigation, it was forced to keep universal mandatory masking in place during the early stages of the litigation after the judge granted the injunction — while other Montgomery County districts were free to start removing mask requirements.

Mandatory masking in schools was an extremely contentious issue during the heyday of the COVID-19 pandemic, with parents showing up to school board meetings across Montgomery County and beyond to either show support for, or vehemently oppose, masking in schools.