Over the past three days, 4 distinct approaches have formed to addressing the school masking orders. I encourage you to consider these and choose the best approach(es) for your children.
- Send in an ‘Exception” Note
PennRidge School District in Bucks County proposed something yesterday that I hadn’t originally thought was viable.
The District is encouraging exception notes being sent in to the district so that children do not have to wear masks.
Please note that while the preferred legal term is “exemption” the Department of Health has curiously used the term “exception” in respect to mask requirements.
Here’s a link to the order.
PennRidge has a great approach.
In writing a law, the Pennsylvania General Assembly knows the process and has competent legal counsel to assist them. Basically if you write a law, the entire enforcement mechanism should be thought out and explicitly spelled out. Whenever possible, the enforcement of a law should be based on existing enforcement mechanisms, or at least very similar to existing enforcement mechanisms.
Once again, the Wolf Administration has put words on paper with no thought as to what is going to happen next.
The “exception” system created by this order is not consistent with anything already in existence. It is broader than the Americans with Disabilities Act and covers non ADA situations. It is entirely something new, which means that past legal decisions don’t necessarily apply and current existing legal programs don’t necessarily cover it.
This “exception” system DOES NOT require a doctor’s note. It DOES NOT allow a school system to get medical information or take any steps to verify a medical exception.
There is also a very low, vague baseline for getting a medical exception. Here’s the language:
[An exception is permitted]
If wearing a face covering would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition or a disability.
All masks impede breathing, that’s a medical condition. It’s also the point of a mask. I also believe that for many children wearing a mask there are anxiety issues that accompany it.
So, there is absolutely a basis to seek an exception.
Here’s the problem the schools have in exceptions:
What legal standards and precedents do the schools have to evaluate exceptions? Because this is something new, there are none.
If an exception is denied, who reviews it? It’s not clear because this is something new and broader than the ADA.
If a school denies the exception, can it face liability? I have no idea, because this is something new. This is a good conversation for school board members to have with their solicitors.
Can a school board be cited under the Department of Health Order for denying an exception? Arguably yes. Violations of Department of Health Orders are enforceable by “anyone” filing a summary criminal citation. If a school district fails to allow an exception under the Department of Health Order, they are in violation of the order and could be taken before the local magisterial district judge to face a fine of up to $300.
So, consider sending in a parents note stating:
Please except my child from wearing a face covering as it would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition or a disability.
Under the terms of the order, that is literally all that is required to get an exception.
2. Be Prepared to Face Discipline
Thankfully, Pennsylvania has approached school discipline similarly to criminal law. That means that students in discipline proceedings have many (but not all) of the same rights as a defendant in a criminal case.
Under 22 Pa. Code § 12.6, a school board must publish a discipline policy- usually as part of the student handbook. While schools are given broader discretion in terms of defining offenses than in criminal court, an offense must nevertheless have some basis in the policy.
A school district (or administrator) cannot create a new offense without reasonable advance notice to a student. If a particular level of discipline is proposed in the handbook, that handbook must be followed. An administrator cannot throw out the handbook and create something new. If a change to disciplinary policy is going to occur, it must come from the school board and reasonable advance notice must be given to the students.
Several parents have reported to me that their school districts DO NOT have a discipline policy for unmasked students. That is a problem for the school district.
Keep in mind the following:
- There is no right to a hearing when a student is placed in detention.
- A student and parent have a right to advance notice of a suspension if the suspension period is 3 or fewer days, but no right to a hearing. Advance notice may be waived if there is a safety or health issue.
- Suspensions of more than 3 and no more than 10 days are subject to an informal hearing requirement. 22 Pa. Code § 12.8. Parents and students must be notified reasonably in advance in writing of the hearing and its substance.
I have seen a number of cases in which the notice is given by phone an hour or so in advance with vague information about the purpose of the hearing. This is unacceptable.
I have also seen cases in which an administrator who took part in the discipline process acts as the decisionmaker for the informal hearing. This is also unacceptable. The decisionmaker should be at the very least an administrator who is not involved in the discipline process and who does not know the student and is not good friends with the school faculty involved. I’ve also seen too many cases in which the decisionmaker reviews the case with other school administrators outside the presence of the student. This is an ex parte communication and should not occur. The decisionmaker should have no substantive information about the situation until the informal hearing. A student may present witnesses. There are also legal questions as to what extent the school may rely on hearsay and to what extent live witnesses are required.
- A suspension of more than 10 days is treated the same as an expulsion. In that case, a formal hearing must be provided. The hearing will be on the record. A qualified hearing examiner should run the hearing. Many evidence rules and rules of court procedure will apply. The school board will have to make the final decision. These decisions are reviewable by your local county court of common pleas.
Some schools have stated that unmasked students will be placed in “quarantine rooms.” While such a decision may be permissible short term, all children are entitled to equal learning opportunities within a school district under federal law. If this “quarantine room” system does not provide equal educational opportunities, there are several potential legal actions that could be filed.
Unless a student or parent becomes disruptive, criminal charges are very unlikely. Many County District Attorneys have stated that they will not enforce these types of orders.
District Attorney Dave Sunday from York County has issued a new memo stating that York County will not enforce the new masking order in criminal court.
As the only clear way of enforcing this order is through summary criminal citations, this statement is significant.
Mr. Sunday has strongly stood up for citizen’s rights since the beginning of the pandemic. York County is lucky to have him and he’s definitely someone to watch in Pennsylvania politics.
Other District Attorneys very likely feel the same and have issued similar statements about prior orders, but this is the first public statement that I’ve seen on the new order. If you have contact with your DA, you may wish to encourage them to issue a similar statement.
3. Keep Lobbying the School Board
I’ve thankfully heard from about 15 school board members from throughout Pennsylvania who are going to stand up for their authority to make local decisions about masking.
One school district superintendent in Berks County is refusing to follow the Department of Health Order until there has been a vote by the school board.
Another school district in Schuylkill County has resolved to ignore the order and continue to follow their prior decision to keep masks optional.
Hopefully other schools are following suit. All school board members need to realize that voting to follow this order is a vote to give up your decision making power indefinitely. Even if you support masking, giving up your decision-making power is a bad, bad idea. It is absolutely possible for a school board to say no to the Governor’s order, but still require masking on the school board’s terms. Giving up your power now, sets precedent for future situations. A school board should not want an outside agency dictating how their schools operate.
While I believe that masking should be the decision of the parent, I think there is a very good chance that courts will ultimately come to the conclusion that school boards can require masking as long as there is a reasonable specific end to the masking. There will likely continue to be a debate about what is reasonable and what is not.
Bottom line: Encourage your school board to stand up for their authority to make decisions. The Pennsylvania Constitution gives school districts a tremendous amount of power to determine their own operations. Those operating decisions should be based on local virus conditions, the students, staff and resources of the district. Harrisburg ethically and legally should stay out of it. School boards can reject the Department of Health order and still make their own decisions about masking.
4. Support the Lawsuit(s)
In the late afternoon of September 3, 2021, the first of the lawsuits about school masking was filed. The case is Corman, Jacob Doyle, et al., Petitioner v. Beam, A – 294 MD 2021. You can track the status of the case by going to the AOPC case search page and searching by docket number.
I am aware of at least two other lawsuits that are in the works. With this case being filed, we’ll see whether additional lawsuits are filed or whether those parties join into this case.
This case has been filed with the Commonwealth Court of Pennsylvania. The Commonwealth Court is a special court that hears disputes involving Pennsylvania state agencies. As this case addresses a Department of Health order, it is appropriately before the Commonwealth Court.
The Commonwealth Court has required DoH to respond by 9/8 and has set a hearing for 9/18 at 10 AM. The Commonwealth Court is more politically conservative than Pennsylvania’s other appellate courts.
The hearing on 9/18 will be open to the public in some way. Most of the Commonwealth Court sessions are still being conducted by internet through WebEx. There should be a link available a couple days before the hearing. If the Court holds the hearing in person, it will be held in their building in Harrisburg.
I have not seen this lawsuit yet. It is a petition for declaratory judgment. A petition for declaratory judgment is not seeking money damages, it is simply asking a court to determine whether a particular action is legal. This case is correctly filed and should move to a decision relatively quickly (weeks, not months).
If things proceed as normal, the filed lawsuit should become publicly available on September 7. While there are a lot of arguments to be made, I do not believe that raising constitutional rights claims or claims that masking is unsafe are likely to be successful. I believe that the best arguments are likely to be that the Department of Health has limited powers, whereas school districts have very broad powers. The Commonwealth Court regularly makes decisions about the limitations of powers of state agencies and would be more comfortable in that area than in reaching constitutional or public health questions.
There is a very good chance that I will be recommending that amicus briefs be filed and filing one myself. The feelings of the public will be something that the Commonwealth Court will end up taking into account in some way in terms of this decision. While Courts try and separate themselves from public sentiment, the reality is that is always comes into play. The best way to make your voice heard is by filing an appropriate amicus brief.
I am recommending the following:
- If you are a member of a school board, have the board vote to authorize your solicitor to file an amicus brief. As I noted previously, this case isn’t directly about masking, it is about the authority of school boards to make decisions. Hopefully this is something that even school board members that strongly support masking can get behind. If your school board is going make masking mandatory, YOU should control the exemptions/exceptions and YOU should control when the masking ends. Keep in mind that giving up this power now, sets precedent for having limited power the next time there is a statewide issue.
- If you are a member of a parents group/PTO/PTA, etc. consider hiring legal counsel and having them file an amicus brief. While it is absolutely possible to file an amicus brief without an attorney, there are format and length limitations that must be complied with. If you submit a brief that does not meet the requirements, the Commonwealth Court can refuse to read it. You can find information on briefing requirements here:
- Ask your local elected representatives to submit their own amicus brief.
- Personally appear or log on to WebEx on 9/18 for the hearing. Showing public opposition to the Department of Health will have an impact on the Commonwealth Court.
- Send a comment to the PA Department of Health. https://expressforms.pa.gov/apps/pa/health/contact-us
While it is unlikely that this will work, this is free and only takes a minute. I would like to have the PA Department of Health receive thousands of comments stating that school decisions should be left to the schools.
Please consider taking one of these actions.
I will likely have more information and comments once I receive the newly filed lawsuit.