Last week, two federal judges of the United States District Court for the Western District of Pennsylvania came to seemingly opposite conclusions regarding universal masking requirements in Allegheny County schools.

In an earlier article, I wrote that the Pennsylvania Commonwealth Court set aside the Pennsylvania Department of Health’s school masking order. The Pennsylvania Supreme Court has since affirmed the Commonwealth Court’s decision on December 8, 2021, striking down the Department of Health’s masking order.

While the matter before the state courts concerned an order from the Pennsylvania Department of Health, the matter before the federal judges both involved decisions from local school boards. Specifically, the issue before both federal judges was whether the policies implemented by local school boards violated the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973.

Doe 1, et al. v. North Allegheny School District, et al.

On December 8, 2021, the School Board of the North Allegheny School District rescinded its previous universal masking policy, effectively making masks optional on January 18, 2022. North Allegheny School District at 4-5. Plaintiffs, parents of immunocompromised students, sued to restore the School Board’s previous universal masking policy.  Id. at 2. Plaintiffs filed a Motion for a Temporary Restraining Order (“TRO”) to require the reinstatement of the universal masking policy.

A TRO is a short-term, pre-trial temporary order which forces or prevents some action within a specified time frame. This is typically done to prevent “irreparable injury” to a party in a lawsuit while the suit is pending. TROs are short-term and do not typically last more than 14 days. Federal Rule of Civil Procedure 65(b)(2). Further, because TROs last for such a short time, they typically cannot immediately be appealed.[1]

On Monday, January 17, 2022, the Honorable Marilyn J. Horan granted the TRO in favor of Plaintiffs, determining that the school board’s masking-optional decision did not comply with the ADA or Section 504 of the Rehabilitation Act. Specifically, Judge Horan determined that, for the purposes of the TRO, Plaintiffs properly showed that they are standing to sue and that they have “sufficiently established a likelihood of success on their claim that the District’s optional masking policy has the effect of excluding [Plaintiff] from in-person attendance at public school or has otherwise denied [Plaintiff] the opportunity to participate in the in-person services of the District and that any such exclusion is based upon [Plaintiff’s] disabilities.” Thus, the school board did not provide “reasonable accommodations” required by the ADA and Section 504 of the Rehabilitation Act.

Doe 1, et al. v. Upper Saint Clair School District, et al.

On Friday, January 21, 2022, however, the Honorable William S. Stickman IV, in a case with strikingly similar facts, came to the opposite conclusion, denying Plaintiffs’ motion for a TRO.

On January 10, 2022, the school board of the Upper Saint Clair School District eliminated its own universal masking policy in school buildings. Plaintiffs, immunocompromised students, and their parents suing on their behalf, asserted essentially the same arguments as the Plaintiffs in North Allegheny School District.

Judge Stickman came to the opposite conclusion, determining that Plaintiffs likely did not have standing to sue because they could not show an “actual or imminent” injury, rather than a merely “conjectural or hypothetical” injury. Upper Saint Clair School District at 10 (citing Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). That is, “the plaintiffs lacked standing because an increased risk of harm does not constitute the injury-in-fact required to establish a case or controversy under Article III.” Id. at 12, (citing Reilly v. Ceridian Corporation, 664 F.3d 38 (3d Cir. 2011)).

Judge Stickman further determined that the Plaintiffs had failed to exhaust administrative remedies and were not likely to succeed on the merits. Specifically, Plaintiffs could not show why physical distancing, contract tracing, diagnostic and screening testing, vaccination efforts, and cyber schooling were not reasonable accommodations for the purposes of the ADA and Section 504 of the Rehabilitation Act. Id. at 26.

Can Federal Judges Within the Same District Come to Different Conclusions?

Yes. As Judge Stickman explained in a footnote to his decision, “district court decisions are not binding on other district courts within the district” and, even when the facts of a prior district court case are practically the same with a present matter, a later court is not bound to that previous determination and must conduct its own analysis. Id. at 2-3, n. 1, (citing Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366 (3d Cir. 1991)). 

Despite the Decisions, Both School Districts Must Universally Mask for the Time Being

While TROs are not typically immediately appealable, both cases have been appealed to the United States Court of Appeals for the Third Circuit. Plaintiffs in the Upper Saint Clair School District case specifically argued that the TRO is effectively a preliminary injunction and is immediately appealable. The Court of Appeals agreed to consider this argument and, on January 23, 2022, temporarily stayed Judge Stickman’s order until it can make a decision. Both school districts, therefore, must maintain the universal masking policy.

The Court of Appeals is set to select a three-judge panel to review Judge Stickman’s Order. While Judge Horan’s order has also been appealed, that case has not progressed as promptly.

Unlike decisions from within a district, decisions from the Court of Appeals are binding on district courts. It will therefore be important to monitor the cases as they will not only effect how school boards should craft their masking policies, but also provide important case law regarding the extent of “reasonable accommodations” under the ADA and Section 504 of the Rehabilitation Act in relation to the pandemic.

[1] There are exceptions to this general rule. The United States Court of Appeals for the Third Circuit, which would be the court where both Judge Horan and Judge Stickman’s orders would be appealed to, found an exception to the general rule that TROs are not immediately appealable in Hope v. Warden, 972 F.3d 310 (2020).