UPDATE: (10/1/20) The Third Circuit has temporarily reinstated Governor Wolf’s gathering size limits while the Commonwealth appeals the Pittsburgh district court’s ruling in the County of Butler case that they are unconstitutional. Some school districts, relying on the district court’s ruling, had been allowing high school football games to be played in front of crowds.
While Governor Wolf has continuously recommended schools postpone the fall sports season until January 2021, the PIAA voted to allow school districts to proceed with a fall sports schedule with COVID-19 precautionary measures and protocols in place.
This vote provided school districts with the discretion to proceed with their own restrictions and policies as to what sports may participate and in what capacity. But who has the authority to allow fans and family members into a stadium or gymnasium during a sporting event?
House Bill 2787 (“HB2787”), sponsored by Rep. Mike Reese, would have given individual school districts the power to decide whether to allow spectators at school events, and if so, how many. While the bill easily passed the PA House and Senate, on September 21, 2020, Governor Wolf vetoed, claiming HB2787 is unnecessary because school districts are already afforded the authority to decide on school sports. Even without Governor Wolf’s order, schools would be fully empowered to impose their own restrictions. (24 P.S. § 407, 510-511) For an override of Governor Wolf’s veto, the PA House and Senate would have needed a two-thirds majority vote. On September 23, the PA House vote came in at 130-71; the override failed.
Governor Wolf and his administration have implemented gathering restrictions of 25 people for indoor and 250 for outdoor events. With the recent District Court decision striking down this order, among others, as unconstitutional, the question now for schools is, “If we go over the 250 gathering limits, are we in violation of the law?” Some PA school districts are letting more fans into the stands despite HB2787 not passing, relying on Judge Stickman’s opinion. Following this opinion, the PA Department of Education asked schools to voluntarily abide by Governor Wolf’s restrictions. The PIAA has also advised school leaders that these caps are not mandatory.
From the very start of this pandemic, people have been questioning the Governor’s authority to make an executive order.
An executive order is a proclamation directly from a governor without any insight or input from the legislative or judicial branch. Governors may use an executive order to trigger emergency powers during natural disasters, energy crisis, and other situations requiting immediate attention. One of a Governor’s main responsibilities is to ensure their state is prepared for emergencies and disasters. State emergency management laws usually define how a governor may declare and end a state of emergency.
The authority for Governor Wolf to issue an executive order is in our state constitution along with statutes as well.
35 Pa. C.S. §7301(a)-(c) of the Emergency Management Services Code says the governor is responsible for meeting the dangers to this Commonwealth and people presented by disasters. The statute also states the governor may issue, amend, or rescind executive orders which shall have the force and effect of law. Last, but certainly not least, the statute says, “a disaster emergency shall be declared by executive order or proclamation of the Governor upon finding that a disaster has occurred or that the occurrence or the threat of a disaster is imminent. The state of disaster emergency shall continue until the Governor finds that the threat or danger has passed or the disaster has been dealt with to the extent that emergency conditions no longer exist and terminates the state of disaster emergency by executive order or proclamation, but no state of disaster emergency may continue for longer than 90 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency.” The PA House and Senate can terminate an emergency declaration, but the governor still would have a veto like power because of the PA’s Constitution.
Under section 7301(a), Governor Wolf is given the responsibility to address dangers facing PA that result from disasters. Further, under § 7301(c), Gov. Wolf proclaimed a disaster emergency throughout the entire state because of COVID-19. Gov. Wolf extended the disaster emergency on June 3, 2020. Through § 7301(b), Gov Wolf may issue, amend, and rescind executive orders, proclamations, and regulations regarding COVID-19, and these directives will have the full force and effect of the law.
Currently, the PA State Police and local law enforcement are all enforcing Governor Wolf’s Mitigation Order under the PA State Police Enforcement Guidance. Governor Wolf’s order does not apply to classroom settings but does apply to school activities outside of the classroom that are not related to educational instruction. However, schools still have to enforce and abide by masking and social distancing requirements. All sport-related activities must adhere to the gathering limitations set by Governor Wolf. Under 71 P.S. §1409, any person who fails to adhere to the Governor Wolf’s orders is subject to criminal penalties and fines.
Bottom Line for Schools
It is unlikely a school district will be in violation of the law if they go over the gathering limits. However, schools must still adhere and stricly enforce social distancing and mask orders. Schools should consider all relevant factors. School must exercise caution and good judgement when considering the number of fans allowed at an event. While the attendance of families is important, public health and safety at large is at risk, especially if social distancing and masking requirements are not being enforced. Schools should consider all local state and health agencies’ recommendations as well as consult with legal counsel regarding all factors and potential impacts.
With all this potential risk and unpredictability, school districts’ main concern are the legal risks involved in allowing spectators and families to attend sporting events. There is always the possibility of a lawyer looking to seek damages from schools if athletes or one of the fans gets sick, but school districts have strong defenses and immunities to these situations. It would be challenging to trace infections or spread of COVID-19 to a specific sporting event. Furthermore, if schools adhere to the recommendations, guidelines, and required protocols provided by the CDC and local health agencies, the possibility of courts finding this action to be a “state-created danger” is highly unlikely.
School districts and administrations not only must ensure they implement required protocols, but also that they are followed and enforced fully. Schools should also make sure to hold other surrounding schools accountable in doing the same.
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.
