This past week, a federal judge in Pittsburgh ruled the orders issued by Governor Tom Wolf amid the shutdown in Pennsylvania during quarantine were unconstitutional.
U.S. District Judge William S. Stickman held Gov. Wolf’s orders limiting indoor and outdoor gatherings as well as closing nonessential businesses were in violation of the First Amendment right to Freedom of Assembly and the Due Process and Equal Protection clauses of the 14th Amendment. On its face, the Governor’s limitations on crowd size also applied to public gatherings including school functions and sporting events. Public confusion over what this ruling might mean for schools is inevitable.
To be clear, Judge Stickman’s decision as it might pertain to public schools affects only limitation on crowd size. It does not affect the use of masks, social distancing, or other COVID directives.
On Wednesday, September 16, attorneys for Gov. Tom Wolf’s administration asked to stay the federal court decision ruling Gov. Wolf’s shutdown orders during a pandemic were unconstitutional. A motion to stay means to suspend a ruling, stopping any further legal proceedings to which this holding applies. Attorneys for the plaintiffs have intentions to vigorously oppose this motion and are expected to file briefs on September 17.
The legal effect of this decision is not so clear. Gov. Wolf’s administration is disappointed, pointing to the number of governors across the country who echoed Gov. Wolf’s actions when trying to save and protect the lives of their states by implementing similar orders and protocols. Gov. Wolf’s administration has emphasized his decision does not apply to orders regarding masking and social distancing requirements, as well as the mandatory work-from-home orders previously implemented. On the other hand, attorneys for the plaintiffs believe the decision finding gathering limits to be unconstitutional now applies to everyone in Pennsylvania.
The overarching question now becomes, “how does this affect school districts and their authority over reopening policies and extracurricular and athletic programs?”
Gov. Wolf has emphasized the reopening of schools should be made at the local level by individually elected school board members and administrators. Generally, the individual local school boards and administrative members have authority to create and implement reopening plans. School districts were strongly recommended to listen and consider the state Departments’ of Education and Health guidance on how to safety implement a reopening program. School districts around Pennsylvania have carried out in-person, blended learning, or completely online instruction programs, in which COVID-19 response programs and protocols is used for preventative and protective measures. Additionally, the PIAA voted on August 21 to allow school districts to proceed with a fall sports schedule, essentially giving them the authority and discretion to decide on how to proceed with fall sports. While Gov. Wolf has continuously recommended schools postpone the fall sport season until January 2021, the PIAA kicked the decision to the local school boards.
It is also important to note House Bill 2787 (HB2787) passed in both the PA House of Representatives (155-47 vote) and the Senate (39-11 vote). HB2787 would give individual school districts, not Gov. Wolf, the power to decide whether to allow spectators at school events, and if so, how many. Gov. Wolf has expressed plans to veto HB2787, but Rep. Mike Reese is confident in a veto override in both the House and Senate.
Even assuming Judge Stickman’s invalidating of Governor Wolf’s limitations on crowd size holds up on appeal, the legal reasoning that these limitations violate the First Amendment Assembly clause and 14th Amendment Due Process or Liberty clause does not translate to political bodies such as school districts. It is basic constitutional law that such constitutional protections apply to individuals and do not apply to political bodies. Judge Stickman’s decision does not implicate the right and authority of school boards to establish limits on crowd size at athletic or other school-sponsored events. Nor does the decision invest the individual with some constitutional entitlement to override duly imposed restrictions on crowd size at school events.
Bottom Line for Schools
In short, any claims by frustrated sports fans or angry parents that the Judge Stickman decision makes school-imposed limitations on attendance at sport or other events unconstitutional have no basis in law.
Informed by government guidance and responsible medical opinions, school boards should continue to exercise their best judgment on measures to protect the health and wellbeing of students, personnel and their communities.
If you have a question, please contact your legal counsel or one of the Education attorneys at KingSpry.
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.