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Judge sets Nov. 15 date for briefs in school mask lawsuit

PARKERSBURG — A temporary injunction was not granted this week in regards to the mask mandate for Wood County Schools.

Court personnel said Tuesday Wood County Circuit Judge JD Beane has given both sides until Nov. 15 to file briefs in this matter to build their cases after a hearing was held Monday.

The parents of three Parkersburg High School students filed suit recently to have Wood County Schools’ mask mandate declared illegal and unconstitutional.

The lawsuit filed in Wood County Circuit Court on behalf of John R. Davis and Felsie C. Pierce claims the school district has no legal authority under which to require mask wearing and alleges that “this forced, prolonged masking has caused actual harm to (the plaintiffs’) children.” It says the mask mandate is a violation of state constitutional protections.

Attorney John H. Bryan of Union, W.Va., who is representing the plaintiffs, posted a video onto his Facebook page commenting on Monday’s hearing. He said the case comes down to whether a school board “can continue forcibly masking children.”

“I think the court was very receptive, in my opinion, to the arguments that we were setting forth from the perspective of the parents as opposed to the attorneys for the (Wood County) Board of Education there,” he said.

Wood County Schools’ attorney Richard S. Boothby filed a motion to dismiss the case on Monday which said the plaintiffs could not prove their position and the “emergency” basis of the lawsuit was groundless.

The arguments that the mandate was in violation of state law and the state Constitution were “baseless,” according to the motion.

“First, (school boards) have well-established constitutional duty to provide a safe and secure school environment,” the motion said. “Second, the West Virginia code contains numerous provisions outline the authority and duty of school boards to protect the health of its pupils.

“The BOE followed the guidance of key health officials, both local and national, in adopting a face covering protocol to prevent the spread of infectious disease in schools.”

The motion cited state law and case law to support its argument.

In regards to exemptions to the mandate, if there is a medical reason, the plaintiffs could get a written explanation from a medical professional and provide it to the BOE, the motion said, adding there was just a “short declaration from a’doctor’ of pastoral ‘medicine'” to support their position.

Also, studies cited by the plaintiffs that prolonged facemask use are harmful have been “discredited, retracted or misrepresented.”

The motion also said the plaintiffs’ counsel has made social media posts about the case and appeared on broadcasts discussing the case. The motion said there is no emergency if the plaintiff’s counsel “had ample time to repeatedly seek publicity about this matter.”

Bryan said in his video he felt the board’s arguments amounted to “personal attacks” on him and did not address the substance of the case.

“They are basically making the argument that there was no stopping a county board of education and they can pretty much do whatever they want,” Bryan said. “Of course, I’m paraphrasing it in my recollection.”

Bryan said his arguments are about whether a county school board can enact its own health regulations and “their own mini mask mandate” where it can make the kids in schools do whatever they want.

“I would assert they cannot do that,” he said.

Bryan said he was prepared to submit everything at the hearing this week and get a ruling now.

“We can still win on this very important issue on whether there is any limit to the power of a board of education,” he said. “I’m not convinced there is any legal basis for these boards of education to also act as a board of health or also act like a mini-governor issuing executive orders.”

He said he will continue to research the issues further and see if they can get the court to rule in their favor.

Bryan, in a later email, also pointed out that almost nobody in the courtroom was wearing a mask, including the superintendent and the BOE lawyers.

“Yet meanwhile, they give kids no choice, all day every day,” he wrote.

Boothby could not be reached for comment Wednesday. A school system representative said the district does not comment on pending litigation.

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