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Arguments submitted to Wood County judge in challenge to school mask mandate

PARKERSBURG — In documents filed in Wood County Circuit Court, attorneys argue whether state law gives the Wood County Board of Education the authority to require students to wear masks to combat the spread of COVID-19.

Judge J.D. Beane gave attorneys for the parents of three Parkersburg High School students and the board until mid-November to file proposed findings of fact and conclusions of law in the plaintiffs’ motion for a preliminary injunction against the school district’s mask mandate. The Wood County Board of Education voted 3-2 on Aug. 31 to require masks to be worn by all students, staff and visitors while indoors or on a bus when the county is orange or red on the West Virginia Department of Health and Human Resources County Alert System map.

The school board’s attorneys, with the firm of Bowles Rice, argue the board “unquestionably has both the authority and legal duty to provide a safe learning environment for its students,” including the face-covering protocol.

“Face coverings are a non-invasive and proven means by which the board may satisfy its duty to provide a safe school environment,” a document submitted on behalf of the board says.

Plaintiffs’ attorney John Bryan argues in his filing that “this broad duty to provide general safety just doesn’t exist.”

“If the defendant’s theory (is) of a broad constitutional and statutory duty to safeguard students from every possible danger of infectious disease, such a duty would carry unlimited authority as well as unlimited liability,” it says.

The plaintiffs claim being “forcibly masked” has caused their children to suffer from medical conditions, including hypercapnia (buildup of carbon dioxide in the blood), cephalgia (a blanket term for headaches), enhanced allergies and candida and thrush, referring to fungal infections.

The parents requested a medical exemption for one child, which was initially granted. However, it was revoked when it was determined the person who submitted it was a “doctor of pastoral medicine,” which a filing by the school board’s attorneys notes is “not a health care provider licensed by the state of West Virginia to practice medicine.”

An exemption would be granted if they provided a declaration from a licensed medical professional and its connection to wearing face coverings, the defense filing says.

Only a local health department has the authority to require masks, the plaintiffs argue.

The defense counters that “a public school board does not need the permission of its local health board to act reasonably in providing a safe school environment.”

The plaintiffs cite studies they say show forced mask-wearing can have negative effects on children. The board’s attorneys respond that one cited study was retracted and the observations recorded in another were not verified by a scientific or medical authority and were based on preliminary reports that had not undergone peer review.

“Through various false premises and invalid reasoning, Plaintiffs somehow equate the board’s face covering protocol with childhood trauma,” the defense response to the plaintiffs’ filing says.

The plaintiffs argue the injunction is needed because “their children have suffered, and continue to suffer adverse effects due to prolonged mask usage at school.”

The defense says “enjoining the mask protocol is likely to facilitate a faster and broader spread of COVID-19 infections among the board’s students, employees and campus visitors.”

The board’s attorneys ask that they be awarded reasonable attorneys fees and court costs, citing the plaintiffs’ “material misrepresentations of studies … material misstatements about the factual and legal bases of the board’s protocol … (and) wholly unsupported claims of injury.”

The plaintiffs say no evidence has been presented showing they acted in bad faith.

“The underlying complaint was verified and supported with detailed citations which as of yet have never been addressed by the defendant,” their filing says.

Evan Bevins can be reached at ebevins@newsandsentinel.com.

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