Earlier today, Pennsylvania’s Commonwealth Court ruled in favor of petitioners seeking an injunction to prevent Acting Secretary of Health Alison Beam from enforcing a Masking Order for anyone in the public school environment. The Governor has vowed an immediate appeal of the court ruling.

This remains a contentious issue and most districts and their boards will have questions about what this means on their campus.

Following the amendments made to the Pennsylvania Constitution limiting the Governor’s power under the Emergency Code in May of this year, Acting Secretary Alison Beam issued a Masking Order on August 31, 2021, requiring individuals inside School Entities to wear masks.

On September 6, 2021, parents from various school district, including State Senate President Pro Tempore Jake Corman brought a lawsuit against Acting Secretary of Pennsylvania Alison Beam and Pennsylvania’s Department of Health, claiming Beam failed to comply with the requirements of Pennsylvania law in imposing the Masking Order, and that the Masking Order violated the non-delegation doctrine.  Beam and Pennsylvania’s Department of Health argued that the Masking Order did not qualify as a rule or regulation, but rather was created under existing statutory and regulatory authority, specifically the Disease Control Law. 

On November 10, 2021, Pennsylvania’s Commonwealth Court ruled in favor of Petitioners (Corman et.al.) and granted their petition seeking an injunction preventing Beam from enforcing the Masking Order. As a result, the Masking Order is now immediately deemed to be void and unenforceable. 

The court noted this decision was based solely on the narrow legal question of whether the Acting Secretary acted properly in issuing the Masking Order in the absence of either legislative oversight or a declaration of disaster emergency by the Governor.  

Specifically, the court addressed: (1) whether the Masking Order constituted a rule or regulation subject to the provisions of the Regulatory Review Act, and (2) whether the Masking Order violated the principles governing the delegation of legislative authority. 

The court reasoned that in the absence of a proclamation of disaster emergency or a statute or regulation that authorizes or requires a new agency rule or requirement, the enactment of new rules and regulations brought by state agencies must be done in compliance with the mandatory procedures for review under the Regulatory Review Act, which Beam and Pennsylvania’s Department of Health failed to do. 

The court held the Masking Order was a blanket rule affecting all School Entities in the state, which gave it the force and effect of a law, subjecting the Masking Order to Pennsylvania’s regulatory requirements. Thus, according to the court, the Masking Order is void because Beam did not comply with Pennsylvania’s regulatory requirements in implementing the Masking Order.

Regarding the specific sections of the Disease Control Law upon which Beam based her authority to enforce the Masking Order, the Disease Control Law grants authority to “carry out the appropriate control measures to control diseases,” providing that a “control measure” is limited to one as provided by an existing rule or regulation. The court ruled this does not provide the Acting Secretary with the blanket authority to create new rules and regulations, but rather limits control measures available to those permitted under already existing rules and regulations. 

Bottom Line for Schools

Despite the Masking Order being declared void, schools still have a responsibility and duty to protect their school communities. 

Schools should follow past guidance from Governor Wolf’s administration, recommending school district implement a health and safety plan based on the local rate of transmission of COVID-19. Many districts implemented tiered mitigation plans to address the ongoing concerns of rising levels of COVID-19 before Beam’s masking order in anticipation of the start of the 2021-2022 school year. The Department of Health provides an analysis showing a seven-day transmission rate in each county and separates those rates into three categories: low, moderate, and substantial.

Governor Wolf has promised to immediately appeal this decision and contest the court’s finding that Beam lacked the legal authority to implement the masking order. Under Pennsylvania’s Rules of Appellate Procedure, when the Commonwealth and any officer thereof, acting in their official capacity files an appeal, they will be granted an automatic stay. Pa. R.A.P. §1736(a)-(b). Thus, if Governor Wolf  appeals as planned, his appeal will automatically stay this decision and the masking order will remain in effect until an appellate decision is handed down. 

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.