Focus on the Positive

I’ve spent the last couple days hearing from a lot of parents and school officials about the new Department of Health Order. I know that they have a number of things in the works.

I was so pleased today to see this article about the Hamburg School District in Berks County:

Hamburg School District is calling a special meeting to discuss the order and they are keeping masks optional until that meeting.

This is the way this situation should be approached. For those of you in Hamburg School District- e-mail the superintendent and the school board and show your support. For those of you in other school boards, share this as a positive example of how this situation should be approached.

If you are aware of a school district that is listening to its constituents and taking the time to rationally resolve this issue, please share that information in the comments and circulate it to others.

We need to make it clear that the rational approach that is being taken here is widely supported by the public.

Pennsylvania and the United States are representative democracies. That means a school board member is obligated to listen to and attempt to follow the wishes of his or her constituents.

In respect to this issue, a school board should be considering and actively discussing the following 6 issues:

1- What do my constituents want? A school board member should be out discussing the situation with community members. A school board member should be filtering out the views of a vocal minority and attempting to represent the views of a majority of constituents. School board members do not work for the Governor or the state. They are independently elected to represent the views of the local community.

2- Is the Department of Health’s order legal? As discussed in my prior post, there are extremely good arguments that the order is unlawful and/or unenforceable.

3- What are the consequences of disregarding the order? As discussed in my prior post, the consequences are a summary charge and a $300 fine. I am not aware of anyone who has been found guilty of this offense where they have challenged the charge. Most District Attorneys would not allow such a charge to proceed in their counties. As is par for the course, the Governor has made vague statements about “personal liability” for a violation of the order. I don’t know what that means and I have yet to have anyone explain how a person could face additional “personal liability” out of this situation.

The Governor has shown a pattern of trying to control people through fear and unknowns. I cannot support that in any leader. If the Governor and Secretary of Health really believe that this a valid order, they should have no hesitation to explain the enforcement mechanism and possible penalties for violation. The government is intentionally being vague in order to scare people into compliance. That is not how the law works. Criminal law in PA is required to be clear.

4- Is is appropriate for a school board to be ceding its powers to Harrisburg? As mentioned in prior posts, the Pennsylvania Constitution of 1968 and Pennsylvania laws are slanted towards local control. The overwhelming majority of school decisions are made by local school boards in Pennsylvania. To the extent that they are not made by school boards, the Pennsylvania General Assembly has passed specific statutes limiting school boards’ powers. Virus control in schools should be a local decision made by school boards on a community or even building by building basis. Any school board member, no matter what their position is on masking, should be advocating for local school control. It is irrational to be giving up powers given to you by statute.

Keep in mind the Pennsylvania Secretary of Health most likely has never been to your school district. She doesn’t know you, your staff, your buildings or your resources. How can she place an indefinite order on your operations without that knowledge? Keep in mind that the Secretary intentionally placed no end date on the order and no objective conditions (such as viral spread) as to when the order would be ended.

Unfortunately the cities are going to continue to be hit much worse by the virus. The cities will continue to see the effects of the virus for longer than other communities. But this order means that every suburban and rural community school will have to continue to comply with masking until the cities are under control. Is that fair, is that rational?

5- Is a school board member violating their ethical duty by giving up local control? As discussed, a school board member has a duty to act in accordance to the wishes of their constituents. I think there is a strong argument to be made that it is unethical to be giving power to a 3rd party (the Secretary of Health). This would be similar to a school board hiring an outside company to run the school and telling them that they could “do whatever they want.” Schools should be actively run by school boards.

6- Is the Governor acting ethically? The May 2021 ballot questions clearly showed a mandate towards limiting the powers of Governor in emergencies. Instead of respecting the will of the people, the Governor is attempting to do an end run around that vote and using his appointed acting Secretary of Health to do something that he legally cannot do. Is this ethical? Is this how anyone should govern? The vote in May 2021, shows that people want the Governor to have limited powers and for people to be able to use self-determination.

If a mask mandate was what people wanted in ALL SCHOOLS for an INDEFINITE period, it is for Pennsylvania’s legislature, the General Assembly to pass that law, not the Governor. The Governor DOES NOT gain legislative powers because he disagrees with the legislature. The Pennsylvania General Assembly has overwhelmingly stated that they wanted masking to be determined on a school district level.

For now, ask your local school boards to meet and actively discuss these questions. Publicize the school districts that are actively willing to discuss and challenge these issues.

I am in communication with another attorney who is going to be filing a lawsuit in the near future. More details will be coming when that occurs.

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