On November 30th, the Pennsylvania Supreme Court reinstated the school masking requirement in K-12 schools.
The ever-evolving saga of the school mask mandate in Pennsylvania took another twist as the litigation over the masking requirement continues.
On November 10, 2021, the Commonwealth Court entered an injunction order which voided the Acting Secretary of Health’s masking requirement throughout Pennsylvania’s schools. The Wolf Administration appealed the injunction order to the PA Supreme Court, which acted as an Automatic Stay, thereby reinstating the masking order pending appeal.
On November 16th, the Commonwealth Court granted the Petitioners’ request that the Automatic Stay be terminated. In lifting the Automatic Stay, the Court concluded: (1) the Petitioners are likely to prevail; (2) the Petitioners will suffer irreparable injury without the injunction; and (3) the removal of the Automatic Stay will not substantially harm other interested parties or adversely affect the public interest. Termination of the Automatic Stay was set to occur on December 4th.
On November 22nd, the Wolf Administration filed an Emergency Application to reinstate the Automatic Stay. According to the Administration, the stay is needed to protect the health and lives of Pennsylvania’s school children and their families, and to prevent schools from becoming COVID-19 super-spreader sites in the run-up to the winter holiday season. The Administration also claimed that the Commonwealth Court improperly applied the law when it terminated the Automatic Stay.
In response, Petitioners focused on the underlying opinion of the Commonwealth Court that the Acting Secretary of Health lacked authority to issue the masking order. They also asserted that the Commonwealth Court correctly interpreted the law when it terminated the Automatic Stay.
The PA Supreme Court granted the Administration’s request to reinstate the Automatic Stay, noting that the stay would remain in place pending further consideration following oral argument on December 8th.
Bottom Line for Schools
As of today, the masking mandate for Pennsylvania’s schools remains in effect. While the Wolf Administration has previously stated that it expects to rescind the mandate in the middle of January, schools will need to continue to follow the moving target in the courts, and consider prior guidance from the CDC and Commonwealth until the legal issues are resolved.
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.
