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A class of students walks through the hallway during the first day of school at Mars Area Elementary School, Wednesday, Aug. 25, 2021, in Mars, Pa. Masks are optional for students and teachers.
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Commonwealth Court throws out governor's school mask mandate; Wolf appeals

Alexandra Wimley

Commonwealth Court throws out governor's school mask mandate; Wolf appeals

The judges have thrown out an order by Pennsylvania’s acting health secretary that requires masks inside public schools

Commonwealth Court on Monday threw out an order that required individuals to wear masks inside public and private schools, saying that state health officials lacked the authority to implement such a rule. 

But the state Department of Health quickly appealed the ruling, stopping any immediate action. 

The court sided 4-1 with the ranking Republican in the state Senate and others who sued to challenge the masking order that took effect in early September.

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The judges said Acting Health Secretary Alison Beam’s mandate did not comply with the state’s laws about reviewing and approving regulations and was adopted without an existing disaster emergency declared by the governor.

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The state’s Disease Control Law does not give health secretaries “the blanket authority to create new rules and regulations out of whole cloth, provided they are related in some way to the control of disease or can otherwise be characterized as disease control measures,” wrote Judge Christine Fizzano Cannon, a Republican, for the majority.

Democratic Gov. Tom Wolf on Monday announced he would return authority over masking decisions to local school districts in January. 

In a statement on Wednesday, the governor’s office said “the secretary of health's authority is clearly outlined in existing law.

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“The Department of Health has directed counsel to file an appeal today,” the governor’s office said. “Filing of the appeal will immediately stay the Commonwealth Court’s decision.”

A spokeswoman for the governor said schools have been notified of the appeal. 

Thomas W. King III, an attorney for the petitioners, said he would ask the state Supreme Court to lift the stay.  

The Commonwealth Court ruled in favor of a lawsuit brought by state Senate President Pro Tempore Jake Corman and other parents and was backed by a conservative group that has challenged the 2020 election results. Mr. Corman said he signed onto the lawsuit as a Bellefonte Area School District parent, not as a legislator.

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Mr. Corman’s lawsuit pointed to a paragraph in the state’s disease control law that said the health department can enact “appropriate control measures in such manner and in such place as is provided by rule or regulation.” But because no state regulation providing for masking exists and Ms. Beam did not follow the traditional process to create one, the lawsuit argued that the order was invalid.

Mr. Corman, R-Bellefonte, and Senate Majority Leader Kim Ward, R-Hempfield, applauded the court’s ruling and said in a statement that health and safety decisions are best left to parents and school boards. 

“We are grateful the Commonwealth Court made the right decision by empowering parents to be part of health and safety decisions for their kids,” the statement said. “The law is clear in this case. The acting secretary of health does not have the authority to create new rules and regulations out of thin air.”

The state’s other leading Republican, Speaker of the House Bryan Cutler, said in a statement that the debate was not about the effectiveness of masks in school but whether each branch of government would “follow the law and respect our constitution’s design that directs the legislative branch to make the laws that govern our people.

“Today’s ruling shows a firm understanding by the court that our constitution makes it clear that no unelected government bureaucrat should ever have the sole and unilateral authority to issue open-ended ‘orders’ – whether they focus on public health response or something else,” Mr. Cutler said. “To give such limitless discretion would elevate the acting secretary’s power above at least two branches of our tripartite government.”

In October, the Joint Committee on Documents, a panel comprised of Mr. Wolf's administration, other executive branch officials and legislative leaders, voted 7-4 that the masking order did not have to be enacted as a regulation.

The Commonwealth Court’s decision, if upheld, would place the decision back on individual school districts. 

The McKeesport Area School District said it would follow an August school board decision that made masks “highly recommended but optional” for staff and students. The district, though, said the move was subject to change based on future court decisions.

The North Hills School District said it would revert back to its plan to require masks for all students and staff in district buildings during school hours when Allegheny County has a high and substantial community transmission level for COVID-19. As of this week, the transmission level in Allegheny County remains high. 

The district said it would make masks optional when the county has a moderate or low community transmission rate. 

“Mandate or not, we are still experiencing high levels of transmission in our community and masking will help to keep our students in school,” Superintendent Patrick Mannarino said in a statement. “Once we reach a moderate level of transmission, masking will be optional, just as we approved in August.”

Randal Lutz, superintendent of the Baldwin-Whitehall School District, said the decision would not immediately impact the school system as its board already had a masking requirement in place before the state mandate was implemented. He said, however, that the district would look into whether any changes should be made to that plan. 

“We will continue to analyze the data we have about our students and staff and the rate of infection in our schools on a daily basis,” he said. “Using this information, along with any additional details that we hope to receive from state and local health officials about contact tracing, close contacts, quarantines and social distancing, a decision will be made as to whether to make a recommendation to the board of school directors to amend the district’s health and safety plan.”

Arthur G. Steinberg, president of the AFT Pennsylvania, said the teachers union was “deeply troubled” by the Commonwealth Court’s decision and fully supported the state health department’s appeal. 

“With the vaccine only recently approved for use among a huge number of school-age kids, masks continue to be an essential layer of COVID-19 mitigation,” Mr. Steinberg said in a statement. “It is unbelievable that 20 months, and over 750,000 American lives into this pandemic we continue to allow conspiracy theories to trump scientific evidence, in guiding the public health response.”

The Pennsylvania State Education Association said that despite the court’s ruling, the recommendations from the Centers for Disease Control and Prevention and the American Association of Pediatrics for masking in schools still apply and should be followed. 

“PSEA encourages elected and school district officials to continue to follow the advice of medical experts to keep our students, staff and their families as safe as possible at school,” union spokesman Chris Lilienthal said. “That should include continuing to mask up at school for the time being.”

Andrew Goldstein: agoldstein@post-gazette.com or 412-263-1352. The Associated Press and Philadelphia Inquirer contributed.

First Published: November 10, 2021, 5:20 p.m.
Updated: November 10, 2021, 5:25 p.m.

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A class of students walks through the hallway during the first day of school at Mars Area Elementary School, Wednesday, Aug. 25, 2021, in Mars, Pa. Masks are optional for students and teachers.  (Alexandra Wimley)
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