RALEIGH — A parent of two Wake County Public Schools students says he is considering filing a lawsuit after almost half a year of navigating the district’s grievance and appeals process over the district denying mask exemptions for their children.
Jacob Arthur, a Raleigh attorney, has four children, three of which, Ella, Samantha, and Andrew, attend Wake County Public Schools (WCPSS). The three children attend two different schools in the district. Over the course of the last six months, North State Journal has been following his case as it made its way through the district’s grievance process.
The district denied the Arthur children’s exemptions at every step of the process, which spanned from August 2021 through December. The denials seemingly overrode the recommendations the family obtained from a double-board certified ENT that the children should not wear masks.
“The grievance process that we had to work through was never intended to address a situation like ours. Policy 1740 seems to have been set up to deal with academic and disciplinary issues, not medical decisions being made by administrators,” Arthur told North State Journal.
“Most upsetting, and unfair, is that we were appealing to the very people who instituted, and implemented, the face covering accommodation policy,” Arthur said. “As each step progresses, you go into it knowing that you have no chance at changing their decision and to help your children. It is a helpless and isolated feeling.”
Arthur’s journey began at the Aug. 3, 2021, Wake County school board meeting, where he gave public comments asking the district to make masks optional. The board voted to require masks at that meeting and has done so every meeting since.
Following that meeting and prior to the start of the 2021-22 school year, Arthur and his wife applied for religious exemptions for their children. At that time, he said he was unaware there was a medical exemption option and the district’s exemption request form made no mention of that as a requirement at that time.
Before the start of classes, their religious exemption was denied. The denial came from the principals at the schools where his children attend. The denial letter he received referred to applying for a medical exemption along with the form to do so.
Arthur filled out the medical exemption forms for his children referring to advice from a chiropractor who had seen the children and submitted the forms. The request was again denied, this time with a claim that a “medical doctor” needed to fill it out or approve it.
The family complied and contacted Dr. Eric Hensen, a double board-certified ENT/Head and Neck doctor with 23 years of experience who is licensed in North Carolina and Texas. Hensen consulted with the family and assessed the children through a telemedicine session.
After evaluating the children, Hensen wrote a recommendation letter that the children should not wear mask, noting their multiple symptom complaints that included head and neck pain as well as vision issues, were a result from persistent mask wearing during the school day. The doctor also stated in his letter he would make himself available if anyone wanted to talk to him about his recommendations.
The Arthurs sent Hensen’s letter to the principals at their children’s respective schools. After receiving the doctor’s letter, the exemptions were denied again and Arthur said neither principal had bothered to contact Hensen.
In one of the denial letters, one of the principals stated that she “continues to believe that accommodations such as mask breaks are reasonable under the circumstances” and that a “full exemption is not warranted.”
The same principal went on to question the medical opinion of Hensen despite not having contacted him, stating in an email to Arthur that “Dr. Hensen’s letter appears to be based on this doctor’s belief that face coverings should not be worn by anyone, regardless of medical conditions.”
Arthur and his wife at that point found their only recourse was to follow the district’s grievance and appeals under the district’s board policy section 1740/4010.
The couple filed their official grievance on Sept. 18, 2021, and that first round of appeals began with the principals who had already twice rejected the family’s exemption requests. The principals had a ten-day window to respond and that response was another denial.
During conversations in the first round of appeals, Arthur’s wife pressed the principals involved for what criteria the district wanted to validate their exemption request.
“How sick do they need to get to validate their concerns? We feel and Dr’s have agreed with us that masks are causing medical issues for our children and that hasn’t seemed to be sufficient,” said Lisa Arthur. “What is the threshold and how severe do their issues have to be? Do they have to be hospitalized to be a valid concern?”
During that meeting, the idea that the Arthurs now had to seek recommendations from their pediatrician despite having Hensen’s sign-off was raised by Mrs. Arthur. At that time, the district’s exemption guidelines nor the form to apply for an exemption involved such a specific requirement.
Neither principal addressed her concerns, instead choosing to say a committee was in place to make decisions and they were not taking the decision-making process lightly. One principal later refuted the idea the district does “not have a blanket policy” of denying exemption requests.
Last October, North State Journal reported on what seemed to be across-the-board mask exemption denials in WCPSS. That report included a memo to the WCPSS board from the ABC Science Collaborative stating there should be no mask exemptions granted for the majority of K-12 students.
When asked to clarify the contents of that memo, the ABC Science Collaborative responded in an email to North State Journal that mask decisions “are up to each school district,” but then later said there are “few reasons not to wear a mask.”
On Oct. 4, 2021, the principals rejected the exemptions again and instead offering “mask breaks” while at the same time questioning the validity of their children’s health issues and the professional advice of Hensen.
The mask breaks would have meant the children would miss instructional time to go outside of the classroom to remove their masks.
“Based on your previous denials and our review of the grievance process, it appears this could not be settled for many weeks or months,” Arthur wrote to the principals in a response to the round one denial. “Therefore, because the potential harm to our children is ongoing, while we proceed with the District’s policy, we will simultaneously be looking at potential legal remedies, as you are the authority implementing this policy in opposition to the recommendations of our children’s treating physician.”
Arthur told North State Journal the denial letters they received from the principals were nearly identical. It was at that point he became aware that Northern Area Superintendent Chris McCabe and Assistant Superintendent for Student Support Services Paul Koh participated in the denials.
The second round of appeals involved an Oct. 20, 2021, meeting with Koh and McCabe. During that meeting, Arthur said Koh and McCabe admitted they had no guidelines or process to follow for denying mask exemption requests.
In the last month, Koh drew national attention for attempting to implement masking of children as young as two using an eight-month-old daycare masking policy. Koh’s remarks included the idea that masking kids at that young age would help them “accept full mask compliance” and to “normalize it later.” The change was shot down by the board, but with two members, including the board chair, voting in favor.
It was also during the second round of appeals that the requirement of a medical doctor’s recommendation was officially shifted to specifically getting their pediatrician to sign off. The Arthur’s told the district they were not going to engage their pediatrician on the matter, which the district used against the family in a letter dated Nov. 5, 2021, in which McCabe officially denied Arthur’s second round of appeals.
In his letter, McCabe recapped the series of events to date from the district’s perspective, again questioning the validity of Hensen’s diagnosis, but also ascribing an intent by Arthur to seek out a doctor who would recommend not wearing a mask. The round two denial letter claimed the district had contacted Hensen.
During a meeting in the second round about the grievance, Jacob Arthur specifically asked if there were any metrics for when masking may go away, to which Koh replied there were no specific metrics and that there are “a set of data points we’re monitoring from DHHS and Wake County” that included vaccination rates of kids in the county, case trends, and the cases per 100,000 people.
Koh also said there were no defined metrics because COVID was a “fluid situation,” yet also said they were looking at a 70-90% vaccination rate despite the majority of children in the district not being eligible for a vaccine dose.
Lisa Arthur asked who was out of public health officials was medically advising the district on exemptions. Koh responded that public health officials, the districts attorneys and the ABC Science Collaborative were meeting weekly to determine “how to move forward.”
She also asked to see the criteria for determining exemptions and was told by McCabe “there is not one” and “we look at each individual case.”
It is currently unclear just how many denials have occurred in the 2021-22 school year, but WCPSS said that “over 200 requests for mask accommodations” were approved the prior school year.
“The accommodations range from providing students with mask breaks to granting exceptions for students who are unable to wear a mask for the entire school day or parts of the school day,” WCPSS Communications Director Lisa Luten wrote in an email last year to North State Journal.
McCabe also referred to WCPSS’ face covering policy being approved based on the advice of the Wake County Health Department, the N.C. Department of Health and Human Services and the ABC Science Collaborative.
“All of these medical professionals have advised that cloth face coverings are safe and effective for children, with specific exceptions for individual children who have diagnosed medical conditions or disabilities that prevent them from safely wearing a face covering,” wrote McCabe. “Because Dr. Hensen’s letter so directly conflicts with the overwhelming consensus of the medical and public health experts advising WCPSS, I support the principals’ decision not to rely upon his recommendation on the topic of face coverings at school.
With the second appeal denied, round number three would happen in December of 2021 and involved a panel of board members.
In between the third appeal hearing request and the actual hearing, the Arthurs sent a demand letter to Koh, McCabe, and the principals and nurses of the two schools their children attend.
In the demand letter dated Oct. 25, 2021, Arthur highlights the denials were issued by individuals with no medical expertise or credentials, yet those same individuals were overriding the advice of medical doctors required by the district in order to obtain a mask exemption.
“Because each of you were involved in the decisions to override the recommendation of our children’s treating physician, we intend to hold you personally liable for the physical and psychological harm they have been, and are, suffering as a result of continued forced masking,” wrote Arthur in the demand letter. “The children have been, and are, suffering from the symptoms listed by Dr. Hensen on our accommodation request forms. We will exercise our rights to hold you personally liable for any future physical or psychological harm resulting from continued forced masking.”
The district’s attorneys with the Tharrington Smith Law Firm responded to Arthur’s demand letter, telling him that “WCPSS does not intend to summarily “reverse” the decisions of school principals as you demand.” The letter says the grievance policy will continue and “In the future, any civil complaints or threats of litigation should be directed to my office and not to school-based staff.”
A third round of appeals hearings was granted and set for Dec. 16, 2021. By then, the end of the first half of the school year was approaching.
Present at that hearing were school board members Lindsay Mahaffey, Chris Heagarty, and Roxy Cash. Also present were two attorneys; the board’s regular attorney Jonathan Blumberg of Tharrington Smith, LLIP, and another lawyer named Clay Hodges of Harris Sarratt & Hodges, LLP. Superintendent Cathy Moore was not at the meeting nor has the family received any communications on the matter from her.
It was apparent the third appeal was a foregone conclusion, with the Arthur family receiving another denial in a letter dated Dec. 17, 2021 – the day after the hearing.
“After careful deliberation, the Board panel unanimously upholds the Level II decision reached by WCPSS administration denying your request for a medical accommodation/waiver for your children of the requirement of wearing a face covering in the Wake County Schools,” wrote WCPSS Board Chair Lindsay Mahaffey.
Mahaffey said the board panel had “determined that the administration’s decision was the result of proper and lawful procedure, and that the decision was supported by substantial evidence in view of the entire record.”
“This is the final decision of the Board with respect to your Policy 1740 appeal,” concluded Mahaffey.
Arthur said it felt like that panel had it already decided given not even a day had passed even though they had 20 days to decide under district policy.
“It has also been mind-blowing to sit in these meetings and listen to these administrators and Board members admit that they have no medical education or training, no metrics or medical guidance, that each case is completely subjective,” said Arthur. “And yet they believe they have the authority to override the medical conclusions and recommendations of licensed medical doctors. Not only that but dismiss the opinions of the medical doctor.”
Not giving up
Even after the third round of appeals denied their claim, the Arthurs are not giving up.
“The Board made it clear at our Level III hearing their decision was final,” Arthur told North State Journal. “We have no more options for recourse within the policies of the Wake County Public School System.”
Arthur continued, “At this point our only option is to litigate and we plan to move forward with that option. It’s a sickening feeling to know your tax dollars are being used to actively oppose your attempts to secure the well-being of your children.”
“The sad part is that this never had to get to this point,” Arthur said looking back at the series of events. “The Board set a policy in place and gave parents the ability to get a mask accommodation, however, it is very clear they never really intended to grant them in any meaningful manner.”
He said that the board could have left these decisions up to the parents, but their actions “across many issues” indicate the board doesn’t really care what the parents in their districts think.
Arthur said the mask policy “is not really the issue, it’s a symptom of a much bigger problem” and that is why he has decided to begin the process of campaigning for the District 7 School Board seat.
“The students and parents in this district deserve much better than they are getting. I hope to be someone who can empower parents, invest in students, and support teachers,” said Arthur.