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The School Board's Sunshine Act Lawsuit

On September 20, 2021, the Board of School Directors of the Kutztown Area School District tried to hide from parents and voters through “virtual” meetings. Without having to see or hear from us face-to-face, they began deliberations on a possible COVID-19 vaccination mandate for teachers, staff, and volunteers introduced by School Director Alan Darion (Democrat, Kutztown Borough). “My point is, choosing to not get vaccinated is not truly a personal choice,” said Darion, “People who come into a school building, who are not vaccinated, have also made that choice for every kid they have contact with.” He also stated that a vaccination mandate is “the only way” to protect children under the age of 12.


The Board voted 7-to-2 to put Darion’s proposed mandate on the agenda for the October 4th Board meeting, and likewise voted 7-to-2 to keep that meeting “virtual.”


In a separate press release, KASD Children First PAC pointed out that Darion’s proposal was really a dry-run for later imposing that on kids, since his chilling rationales equally apply to children. We had to defeat that mandate not just for the teachers, staff, and volunteers, but for the kids as well.


The Board had switched to these virtual meetings, claiming it was an “emergency” because several parents and voters refused to wear facemasks during a Policy/Curriculum Committee meeting on September 13th. This, it was claimed, violated the Face Coverings Order by the Acting Secretary for the Pennsylvania Department of Health.

But two of our volunteers from KASD Children First PAC — Steve D. Wilson and Jackie Bridges — took the school directors to court for violations of the Sunshine Act, filing a civil complaint on Friday, October 1, 2021 in the Berks County Court of Common Pleas.


The Complaint alleges the school directors, during the September 20th “virtual” meeting, exercised ideological control over who was permitted to speak and prioritized those viewpoints supportive of “educational equity” and the incumbent school directors, including by one person who had publicly endorsed their re-election instead of the challengers endorsed by KASD Children First PAC.


The Complaint also points out:


(1) Act 15 of 2020 authorized local governments to have virtual meetings only for the duration of Gov. Wolf's COVID-19 disaster emergency declaration. That was overridden by our legislature last June.


(2) The Sunshine Act doesn't authorize virtual meetings, and the court has authority under that statute to invalidate any official action taken by the School Board in violation of the Act.


(3) There was no "emergency," in part, because nothing in the School Code or the Board's policies require Board meetings to be held on school property. In other words, the Board could have selected any public venue that was not subject to the Face Coverings Order by the Acting Secretary of Health!


As a remedy, the Complaint also sought the writ of mandamus, which is a court order to compel a government actor to do something required by law. Mandamus has an important feature: There is a right to a jury trial whether the writ should be awarded. In other words, our Board was exposed to the risk of a jury (rather than a judge) deciding if there truly was an emergency and if the virtual meetings were a pretextual way of avoiding constituents while pushing a controversial policy proposal.


Counsel for Steve and Jackie faxed the civil complaint to the Solicitor for the School Board in the afternoon of October 4, 2021. That evening, our School Board held another virtual meeting. They first had an Executive Session out of the public view, probably to discuss the lawsuit. When they started the regular meeting, they were visibly flustered, suggesting it was contentious. The Board then capitulated and voted down Darion’s proposed vaccination mandate. The Board then announced it was switching back to in-person meetings, but will hold the same on school property and use police officers to escort off the premises any person who refuses to wear a mask.


Steve and Jackie, afterwards, discontinued the lawsuit since the Board determined to take a correction-course.


“I’m grateful the Board is now seeking to comply with the Sunshine Act,” Steve said. “At the same time, the Board is purposefully bullying parents and voters into wearing facemasks because ignoring the option to hold their meetings at other public venues that are not subject to the Face Coverings Order.”


As pointed out in the Complaint, Steve had served for 16 years on the Maxatawny Township Municipal Authority and “has firsthand experience with public meetings filled with passionate, angry, or contentious constituents,” but he never previously saw a local government — like our School Board — “resort to such pretexts to avoid those who are supposed to be served.”


Jackie Bridges is also a parent of children in the School District.


As this campaign unfolds, don’t be fooled by the incumbent school directors. Without Steve and Jackie’s lawsuit, there’s no telling how the school directors may have really voted on October 4th!

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