The Chester County judge who ousted five West Chester school board members earlier this week because they failed to answer a petition from masking opponents reinstated the members Friday after their lawyer said they believed they had more time to respond.
Before a courtroom filled with more than 100 people in the Chester County Justice Center — including supporters of the school board members and the parents seeking to unseat them — Judge William Mahon said he would vacate his Tuesday order that had removed five of the board’s nine members.
“I understand the gravity of the situation,” said Mahon, who moved Friday’s hearing to a larger courtroom to accommodate the crowd. He noted that the board members were “duly elected,” and said he did not want to “cripple the school district.”
But the petition against the board members remains before Mahon, with allegations that they acted illegally and forced students to use “experimental medical devices” by approving mask requirements. It was filed by Beth Rosica — a West Chester parent who serves as executive director of Back to School PA, a pro-school reopening political action committee — and signed by 10 residents.
Lawyers for the board members filed preliminary objections to the petition on Wednesday, arguing that it failed to state a valid reason for the members’ removal.
“We are very grateful to Judge Mahon for allowing us to get back on the school board and continue our good work for the students of the district,” board president Sue Tiernan said after Friday’s hearing.
Mahon said Friday that he hadn’t considered the content of the petition when removing the board members, but had based his decision strictly on their lack of response to an order, or rule, he issued March 15.
That order specified that board members “shall file a verified answer to the petition within 20 days of service upon the respondent.”
The board members were formally served with the petition Feb. 22. But Pennsylvania’s Public School Code — which contains the provision allowing for a petition process to remove school board members “for failure to organize or neglect of duty” — says the timeframe for school board members to show why they shouldn’t be removed from office is “not less than 10 or more than 20 days” from the issuance of the judge’s rule, the school board’s lawyers said.
“It’s the rule that triggers the deadline, not when the petition was filed,” lawyer Ken Roos told Mahon.
Mahon insisted that the board members hadn’t complied with his order, calling Roos’ argument “an absurd response.”
“Ms. Rosica, who is not a lawyer, understood it clearly,” Mahon said of his order. “Unfortunately for you, you did not.”
Rosica, who filed the petition without a lawyer and represented herself Friday, told Mahon that the board members’ response to the court reflected “the same dismissive attitude” she said they had employed toward her and likeminded parents. She faulted the members for continuing to “forcibly mask children” after the Pennsylvania Supreme Court struck down Gov. Tom Wolf’s statewide mandate in December. (Like other area school districts, West Chester is no longer requiring masks, though Rosica notes that its health and safety plan provides for a return to masking if COVID-19 transmission levels rise.)
The members “did not take me, as a pro se petitioner ... seriously,” she said.
Mahon, who is also handling similar petitions filed against board members in other Chester County districts, said that Rosica was “entitled to the protection of procedure ... just like the school board is.”
Rosica’s petition, which she said was primarily written by Downingtown parent Shannon Grady, alleges that state law doesn’t allow school boards to require masking or to exclude children with COVID-19 from school. It accuses the board members of “medical battery,” “practicing medicine without a license,” and violating the “right to clean air,” among other allegations.
In the preliminary objections submitted to the court Wednesday, lawyers for the board said petitioners were required to demonstrate “non-feasance” — rather than malfeasance — in order to remove board members. Approving a health and safety plan with masking doesn’t fall into that category, they said — also noting that the CDC had recommended universal masking in schools for “the majority of the time” West Chester’s requirement had been in effect, and that implementing health and safety plans was a requirement for receiving federal pandemic relief money.
In his order Friday reinstating the board members, Mahon said their objections didn’t constitute a response to Rosica’s petition, and noted that they “may wish to consider” responding by Monday — the date they had argued was the correct deadline.