The Illegality of the New School Mask Mandate

As I think everyone is aware, the Governor has acted with the Department of Health in issuing a new mask order for schools. For those that have not read the order, it can be found here:

For anyone who had any doubt of Governor’s Wolf’s moral and ethical failings as a leader, he has once again placed them on full display. The Governor is clearly an authoritarian and his latest message is that you can do whatever you want, so long as you agree with him.

This is not how the United States works, nor is it how Pennsylvania works. Pennsylvania has always been about individual rights and local control. The Pennsylvania Constitution of 1968 makes that point in several different ways.

I could go on about this, but I believe most people are looking for several pieces of information:

I. Why is this new Department of Health Order Illegal

  • The Department of Health has based its authority on “section  5  of  the  Disease  Prevention  and  Control  Law,  35  P.S.  §  521.5;  section  2102(a)  of  the Administrative  Code  of  1929,  71  P.S.  §  532(a);  and  the  Department  of  Health’s  regulation  at  28  Pa. Code  §  27.60  (relating  to  disease  control  measures)”. Those laws do give the Department of Health the authority to issue “control measures” for viral outbreaks. However, all the language in the law indicates that these laws are intended to be done at a local level. The Department of Health only has authorities over schools where there has been an outbreak. Even where there has been an outbreak, that control measure must be limited and for an appropriately short duration. This current order could theoretically last forever and covers tens of thousands of children who have not been exposed to the virus.

This argument is the “Taste of Sicily” argument. It is an argument that was successful in the Taste of Sicily case and in many other cases before Magistrate Judges. I am not aware of the Department of Health winning any citation brought under these laws.

  • The U.S. Constitution and PA Constitution require that individual rights only be narrowly restricted by the Government. A never ending restriction on tens of thousands of children who have not been exposed to the virus is not narrow and is likely well beyond the scope of what would be lawful.
  • The Department of Health can’t tell School Boards what to do. The Pennsylvania School Code gives school boards very broad authority to determine what happens in their school districts. Until yesterday, the Governor, Department of Health and Department of Education all recognized that local school boards should and do have control over virus control policies in their district. There is nothing in PA law that says that the Department of Health can overrule a specific decision of a local school district based on their specific local conditions. I believe that the final say as to school masking does and should rest with local school districts.

What is also quite telling is that the Governor did not issue another COVID state of emergency. He could, but the legislature could then end it

  • The Order is irrational. Virus Conditions in Philadelphia are not the same as Cambria County. The two should not be treated the same. Using an order with no distinction between completely different areas is irrational.

II. What are the Consequences of Defying the Order

The Governor does not want you to know that violations of the Virus and Disease Control Law and the Administrative Code of 1929 are punishable by filing summary citations. You’ll notice that this continues to be conspicuously absent from all the orders that have been issued. A summary citation is equally as serious as a traffic ticket. The Disease Prevention and Control Law of 1955 carries a maximum fine of $300. The Administrative Code carries a maximum fine of $50.

I have tried many of these citations. I am not aware of anyone being found guilty of these citations.

There are no other clear consequences. Earlier this year the Department of Health sought injunctions against 50 restaurants that had defied its orders. I filed preliminary objections. When the case was ready for argument, the Department of Health withdrew the case.

III. What should you do now?

The best attack against this is for a school board to either:

  1. Ignore the order and continue to follow the plans that they already developed. As you can see the consequences are minimal and there is a very good chance of a win in court, or
  2. File for declaratory judgment and/or quarantine relief asking that the order be declared invalid. I think it is likely that a local court would do this. There is a provision in law that does allow an individual subject to quarantine to petition a local court for relief. As far as I am aware, no one has tried that approach yet.

I fully believe that virus management decisions should be made at the local and building level.

Local school boards need to stand up for their authority. They should be making the decisions as to virus management within their buildings. The local school board knows their staff, they know their resources and they know the local community. They were elected to do their job and should be allowed to do the job they were elected to do.

You need to lobby your local school board TODAY.

If your local school board is unwilling to act to protect their own powers under the law, that’s a truly sad thing. This situation is not directly related to when masks are needed or not, it is about local school boards having the authority to run their schools.

I have seen many school board meetings over the past several months where school boards truly struggled with what was right for children in respect to masking and COVID policies. While I personally disagree with some decisions that were made, all school boards worked hard and truly struggled with these difficult decisions. I’ve been pleased to see that most school board members did keep an open mind and consider all aspects of the situation rather than letting fear blindly control them. The board members deserve credit and respect for this and deserve the opportunity to continue to try to make the right decisions for their districts.

If your local school board is not willing to challenge the Department of Health order, it is possible for a group of parents to bring a legal action. However, that will be harder to do and raises some standing issues that would not otherwise be present.

41 thoughts on “The Illegality of the New School Mask Mandate

  1. Thank you for this. As a retired law enforcement officer on PA I felt this from day one. Are you willing to take on Norwin school district and the state. We as a group will not be sending our kids with masks.

    Liked by 1 person

    1. Thank you Mr. Winter for the “ courage” to Explain exactly what parents need to do, or our recourse when taking actions! I am a pro choice Speaker at the Council Rock School Board Meeting’s and also a retired educator with 42 years with Council Rock!

      It is “deplorable “ what they are making this issue into- What happened to civil disobedience or discord? How do we as a community members fight this nonsense?

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      1. I heard a recording of a news conference with the Governor earlier this afternoon. The Governor was asked how this order will be enforced. The Governor passed the question to the Department of Education. The Department of Education said it would be up to individual school districts.
        So, the Governor is admitting that there is no enforcement mechanism and that school districts can follow or choose not to follow this order at their discretion.
        If this is merely a recommendation, why is the Governor playing games with language? Call it a recommendation and let school boards decide the issue. Putting out an “order” that you have no means to enforce and no intention of enforcing makes a joke of the entire system.

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  2. My school district refuses to let our children breathe. They mask my child regardless of our religious exemption. Please contact me if possible many in my district are seeking legal counsel to fight our board and their dictatorship mentality.

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  3. Mr. Prince, I have read your latest blog post and I most wholeheartedly agree with your logic.  I will be trying to lobby my own local school board to join a lawsuit against this governmental overreach.  However, I believe if this issue finds it’s way to the Supreme Court of Pennsylvania, we can safely assume they will give any overreach (committed by a member of the Democratic Party, of course) it’s imprimatur and that overreach will be given force of law through stare decisis.   William A. Galinas, Esquire

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  4. Thank you for this information. Our school district took the time and consideration of all the students to choose mask optional this year. The first week was amazing for everyone and now this ball has been dropped. It was truly like a sucker punch to our school boards, students, staff and parents.

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  5. My school district refuses to let our children breathe. The school board voted to mask all kids prior to Wolf’s new mandate. Please contact me if possible many families in my district are seeking legal counsel to fight our board and their dictatorship mentality.
    We need to fight this in every direction but we are not sure where to get the outside support to fight the school board as well as Wolf’s mandate

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    1. Same here in Mercer County as well. Just wondering if your have found any information in response to your comment and any advise as to what to do when a decision had already been made by the Adminstration instead of the School Board and Parents are stating they are being told they have to comply or be removed. those who are resisting are being bulled by staff. Mercer SD has their board mtg on the 20th would like to have info to take to the meeting if any is available

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  6. https://www.montcopa.org/DocumentCenter/View/877/Chapter-3-Communicable-and-Noncommunicable-Diseases?bidId=

    Montgomery County… the first place I’ve seen a County health department document the definition of “outbreak”. notice the language: “unusually high” “exceeding the number of cases that would normally be expected”.

    OUTBREAK – An unusual increase in the number of cases of a disease,
    infection or condition, whether reportable or not as a single case, above
    the number of cases that a person required to report would expect to see
    in a particular geographic area or among a subset of persons (defined by
    a specific demographic or other features).

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  7. Xlear nasal spray has just applied as the vaccines did for a EUA, Emergency Use Authorization. Studies say this over the counter nasal spray works against covid in killing it in the nasal passage. At the very least it should be used as a replacement for pre school and grade school children who will be pulling their masks down all day automatically because of oxygen deprivation. the teachers will be spending an inordinate amount of time enforcing the mask mandate instead of teaching.

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  8. The Infectious Disease Act specifically states who can be restricted “those exposed, infected and carriers”. It also states that if the SoH suspects someone of being a carrier, they must test that person. This in itself makes the DoH order illegal because restrictions have been placed on citizens without being tested, thus violating the due process clause of the 14th amendment.

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  9. Another talking point I am hearing from board members is that if they defy orders, it will open them up to lawsuits. Could the same be said about any harm the mask cause? I have 5 minutes at tomorrow nights meeting and I really want to thank you for this blog.

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  10. Thank you for posting this. I wish I had seen it before our district provided their response to the Governor’s order which was issued today. We had a mask optional policy that is now obsolete. How can we band together to bring a lawsuit against the state? We are livid!!!!!!!! Our children deserve so much better than being the rope in a political tug of war!!!!!!

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  11. I am an admitted attorney in NY, and I also believe that the conspicuous absence of a religious exception/exemption/accommodation is illegal in PA. This legally dubious “order” or recommendation that gets naive school boards to discriminate on the basis of religion, mistakenly thinking they have cover from this order, could be an avenue for a successful challenge. Any thoughts?

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  12. https://www.ydr.com/story/news/2020/07/24/are-face-shields-acceptable-substitutes-for-masks-pa-cdc-give-conflicting-advice/5503705002/ Until a case wends it’s way through the courts at least preschool and grade school children should be allowed to wear a face shield which the state allows. Children are not responsible at that age for their actions and guaranteed when they start getting oxygen deprivation they will automatically pull a mask down.

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  13. We appreciate you so much sir, I hope more Attorney’s will join you in this fight and help us fight this. Are you willing to help us or habe an idea of someone who is ? Greenwood School District in Millerstown PA. Our schoolboard has a meeting on Sept 8th 745 pm AND the allow ppl to be there in person or Via Zoom.

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  14. If a child goes to school without a mask or faceshield and the school has decided to follow the governor’s order; is it legal for them to send him home and deny him his right to an education?

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    1. Sending a child home on a short term basis (3 days or less) is likely legal. At more than 3 days, substantive rights begin to apply. At more than 10 days, the child is entitled to a full hearing before the school board.

      Once you get past the 3 days, the school is going to have to be considering its liability as every child has the right to the same educational opportunities in that school district.

      There are also discrimination issues. The Department of Health has created a new system of exceptions, but has offered minimal guidance and no oversight or review. A school district has no standards or precedent for judging exception cases and could be opening themselves to liability for wrongfully denying a mask exception.

      The Department of Health order does not require a doctor’s note or medical information to seek a mask exception. Consider seeking a mask exception. The PennRidge School District in Bucks County is encouraging parents to seek this exception.

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    2. Actually the Wolf administration is threatening the local school boards with taking away sovereign immunity if they don’t comply with the mask mandate. No one would run for the school board if they didn’t have sovereign immunity. Which would be fine for this administration which wants to take away the power of the local school boards any way.

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      1. Wolf and the Department of Health continue to make this threat. Neither Wolf nor the Department of Health can take away Sovereign immunity. Sovereign immunity is not allowed in 10 very specific sets of facts. Not one of those sets of fact has to do with viral infections. Sovereign immunity can also be lost by causing intentional harm to another person.

        I have not found any case in which a school board member was ever individually sued for a policy decision.

        This is more fear-mongering. If this is a real threat please show me a case in which a school in PA has ever been sued for viral infections. Moreover, please show me a case where a school board member has been individually sued for decisions they have made.

        These threats are fantasy.

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  15. Thank you for standing up for what’s right and legal.
    I wish I would have gotten in touch with you back on May.
    Our kids go to a private Mennonite school and yet our 4 years old boy was not allowed to come to school because we said we will not longer send him with face covering because this is doing more harm than good.
    We went to several board meetings even prior this issue, because they (some administrative staff and few teachers) wanted more restrictions.
    Thank you for sharing your knowledge on this, so we can be better prepared if schools want more of this Covid restrictions.

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  16. How do we obtain an exception form that is legal, and does it need verified by a physician? There are 2 school districts within 30 miles of ours that allowed only parents signature for these exception forms, however Northern Potter Schools are not doing this. As parents if we defy the schools mask policy, the CHILDREN are the ones who suffer by not being allowed in school. How can we fight this without hurting the children.

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  17. Masking is the only way to protect our children. All you may sayers make me ill. It worked during the Spanish Flu, worked through small pox and polio until vaccine irradiated it. People like you sit are the problem.

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    1. I’m very confused by your comments. Please clarify.
      I am not finding any masking mandates that were imposed for the Spanish Flu, Polio or Small pox.
      I am finding that masks were encouraged in some areas during the Spanish Flu, but were not mandated.
      Comparing COVID to the Spanish flu is very difficult to do due to the unreliability of information about the Spanish Flu. Keep in mind that during the Spanish Flu, communication and record keeping was much, much poorer than it is today. Additionally, the U.S. was fighting World War I. Because of this, the news media intentionally did not cover some of the worst aspects of the Spanish Flu so as not to hurt morale. In fact, there’s nothing particularly “Spanish” about the Spanish Flu. The public began calling the Spanish Flu the Spanish Flu because cases of the flu were much more freely reported in Spain, which was not part of World War I. The truth is that the Spanish Flu raged throughout Europe, it just was not reported in many countries.
      I’m also not clear on what you mean by “irradiated.” There was no vaccine for the Spanish Flu, it naturally died out. While there are vaccines for polio and small pox, radiation has nothing to do with the vaccines.

      The United States was founded on the principle of rule of law. Laws should not change quickly, they should not change due to fear or because a couple people say so. Over the past 90 years, Pennsylvania has enacted two sets of laws to deal with viral outbreaks. Those laws were written with the hindsight of dealing with past viral epidemics, so there is some wisdom involved.

      My position is that the rule of law controls. This current masking order is not lawful as it is very poorly written and thought out, is not permissible under the virus control laws and is contrary to constitutional principles.

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  18. Thank you so much. I have tried to reason and explain the facts to my school board, but I will not use this information to educate the school board on THEIR decision to follow something unlawful. I am so sick of my middle child being harassed every single day for not complying 100%. The school board claims to be against masking yet some teachers are completely out of control.

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  19. To whom it may concern:

    Thank you for the article, but why is the word “willing,” highlighted below in the article, used rather than “unwilling,” as is clearly necessary in context. The correct word “unwilling” is used in the original article, as can be seen by clicking on the title in the email. Perhaps the original article was corrected after this email was sent, because I would presume a simple cut and paste was used to make the email and send.

    Any reply will be appreciated.

    Dan Hall “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams

    Like

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