PARKERSBURG – A couple has filed a lawsuit against the Wood County Board of Education challenging its school mask mandate.
John Davis and Felsie Pierce have three children who attend Parkersburg High School, and each of the children are suffering because of the illegal blanket school mask mandate, according to the complaint filed October 12 in Wood Circuit Court by attorney John H. Bryan.
“In a nutshell, our legal theory is this: Wood County BOE claims that the local health board, the Mid-Ohio Valley Board of Health, has issued the mandate, and they are merely following that requirement,” Bryan wrote on his blog. “However, the MOVBOH has denied that they issued the mandate.
Bryan
“If the MOVBOH had indeed issued the mandate, they would be required to follow due process, which requires notice, a hearing, and so on, as well as oversight by the Wood County Commission, the local elected representatives of these schoolchildren and their parents. That’s the process in place – even before we get to the issue of science or constitutional rights. They didn’t follow the process, and therefore the mandate needs to be struck down immediately.
“Secondly, even if and when they follow that process, such a mandate still violates the West Virginia Constitution because it violates the bodily autonomy of these children, just like a mandate requiring a medical procedure without the consent of the recipient.”
According to the complaint, the plaintiffs’ children – identified only by their initials in the complaint – each suffer from several medical conditions such as enhanced allergies, cephalgia, hypercapnia, candida and thrush.
Masking wasn’t mandatory at the start of the school year, but the Wood County BOE voted to make it required August 31.
“Each of the plaintiffs’ children are currently being forcibly asked for approximately seven hours a day while they attend Parkersburg High School,” the complaint states. “Said forced masking is occurring in the absence of the permission of the plaintiffs and is occurring against the will of plaintiffs’ children.”
The complaint says the plaintiffs’ 14-year-old son missed five days because of an illness caused by the forced mask usage, and he no longer was able to focus in school and began falling behind in his education.
On September 28, the plaintiffs submitted a letter to the school system from the boy’s treating health provider – Eric William Spencer, D.PSc – saying the boy was being harmed by the prolonged mask usage and should be medically exempt from wearing it. The boy was exempted, but that exemption was removed September 30.
In an email, Parkersburg High Principal Kenneth W. DeMoss said county officials determined Spencer was not a licensed health care/medical provider, so he didn’t have the authority to exempt the student. The email also said the “health department is the entity that decides if an ‘exemption’ is valid if we cannot easily validate it locally.”
But, MOVHD Executive Director Eric Walker answered a FOIA request from the plaintiffs on October 7 saying the department “did not set a policy, order or mandate (for) Wood County Schools to wear masks.”
The 24-page complaint – with 44 more pages of exhibits – also details Gov. Jim Justice’s lifting of the statewide mask mandate this summer and his refusal to reinstitute one since then.
In addition, it cites the September 29 opinion by West Virginia Attorney General Patrick Morrisey that concluded that “local health officers are not empowered to promulgate rules or orders on their own” and lack authority to issue binding, unilateral directives.
Also, it mentions an August 24 memo to the West Virginia School Board Association from the Bowles Rice law firm providing legal guidance regarding such mandates. It says the West Virginia Department of Education says any mask requirements are at the discretion of county school boards working with local health departments.
All told. Bryan said the Wood County BOE mask mandate – and other school boards in the state – is invalid and unlawful.
“We’ll see what the Wood County Circuit Court does with this case first before proceeding in other counties,” Bryan wrote. “We have requested the issuance of an immediate temporary restraining order, until such time as an expedited hearing can take place.”
The plaintiffs seek a petition for declaratory judgment saying the Wood County BOE has no legal justification to mandate mask use. They also seek injunctive relief barring the school board from mandating face coverings. They also seek attorney fees, court costs and other relief.
Michael Erb, communications coordinator for Wood County Schools, said the system does not comment on pending litigation.
The case has been assigned to Circuit Judge J.D. Beane.
Wood Circuit Court case number 21-C-282