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:
- 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
- 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.