On Wednesday, December 8, 2021 the Supreme Court of Pennsylvania (SCoPA) heard oral arguments on the appeal of the PA Commonwealth Court’s ruling which vacated Acting Secretary of Health Alison Beam’s Masking Order. Two days later, on Friday, December 10, 2021 the court issued its ruling on the case, decreeing 4-1 to uphold and affirm the lower court’s ruling. The effect of this decision officially ends the Mask Order, void ab initio, which translates to “from the beginning” or “as if it never happened” in legal terminology.
What does this mean for PA public school districts? Does this permit parents and students to make their own choices regarding how to protect themselves as the pandemic wanes to become endemic? Do public school districts now retain the power to mandate masks? Does this decision restrict school districts’ power to mandate masks as well? What are the implications of the Commonwealth Court’s ruling on PA public school students?
If you are not interested in the details, here is the bottom line: The court’s ruling affirms that PA public schools, which are a Commonwealth agency just like the Department of Health, do not have the statutory authority to mandate masks because the 1949 PA School Code, which governs and empowers public schools, does not give them this authority.
The information below provides the details to challenge your local school board:
To understand the impact of courts’ decision, let’s review the Commonwealth Court’s ruling, and explore why SCoPA upheld and affirmed the decision. The thirty-one page opinion was written by Commonwealth Court justice Christine Fizzano Cannon. The first 11 pages introduce the case, arguments made by Petitioners (parents) and Respondent (Acting Secretary of Health Alison Beam), background and procedural posture, clarifies that the efficacy of masks is not relevant to the case, discusses Governor Wolf’s actions on Emergency Declarations, the constitutional referendum that restricted these powers, and the series of legal maneuvers – amicus briefs by the AAP, motions, pre-hearing conferences, stipulations. These actions precipitated the October 20, 2021 en banc hearing in front of the entire Commonwealth Court, viewable here.
Starting on page 12 of the ruling, Judge Fizzano Cannon outlines the established law governing the process for promulgating regulations by Commonwealth agencies, starting with a definition of “agency” in this context: “An agency derives its power to promulgate regulations from its enabling act.” Firstly, according to the 1949 PA School Code, which is the ‘enabling act’ for PA Public Schools, a “Local education agency [is] A school district, cyber charter school, charter school, area career and technical school or intermediate unit.” Now that we have established that PA Public School Districts are “agencies” of the Commonwealth, all of the subsequent discussion in the ruling that applies to the Dept of Health applies evenly to PA School Districts. The PA Commonwealth Court has explained that “An agency’s regulations are valid and binding only if they are: (a) adopted within the agency’s granted power, (b) issued pursuant to proper procedure, and (c) reasonable. . . . A regulation not promulgated in accordance with the statutory requirements will be declared a nullity.” While most school districts have ostensibly promulgated their Health and Safety plans with the proper procedure – advanced notice of the meeting, opportunity for public comment, public board deliberation in accordance with the PA Sunshine Act, and a public vote – mask mandates are not within the school district’s granted power and are not reasonable – failing 2 of the 3 requirements for validity. There is perhaps doubt that school districts followed the Commonwealth Documents Law, but review of that criteria is unnecessary as the other two requirements are unmet (and frankly outside of my legal understanding).
Throughout pages 16-20, Judge Fizzano Cannon discusses the impact to the case and the rulemaking process if the Gov’s Emergency Declaration was in place, and whether the Masking Order is guidance vs. an official rule, also called a “binding norm”.
With that foundation set, the effectual portion of the opinion begins on Page 20 with a discussion of the principle of administrative agency deference – “The Masking Order states that these authorities allow the Department to implement any disease control measure appropriate to protect the public from the spread of infectious disease. We do not agree.” (emphasis added, the “we” in this case is the Commonwealth Court judges). Essentially, the judges are saying that state agencies – the Dept of Health nor public school districts – cannot take any action they please.
“Courts give substantial deference to an agency’s interpretation of a statute the agency is charged with implementing and enforcing. An administrative agency’s interpretation of the statute it is charged to administer is entitled to deference on appellate review absent fraud, bad faith, abuse of discretion or clearly arbitrary action. Interpretations of an ordinance that are entitled to deference become of controlling weight unless they are plainly erroneous or inconsistent with the ordinance. However, when an administrative agency’s interpretation is inconsistent with the statute itself, or when the statute is unambiguous, such administrative interpretation carries little weight.”
The opinion states “Initially, and as discussed hereinafter, we find the text of the statutes and regulations cited by the Acting Secretary as authorizing the implementation of the Masking Order to be unambiguous. For this reason, we owe no deference to the Department of Health’s interpretation thereof.” (emphasis added). The Judge further states that statutes regarding disease control are straightforward and clear regarding the control measures which can be taken, and say precisely that these control measures are limited to those as provided by existing rule or regulation. No existing rule or regulation permits the Dept of Health, nor PA Public School district boards, to mandate masks – period. The Mask Order is an interpretation of the law, not the law itself, and therefore “it does not provide the Acting Secretary with the blanket authority to create new rules and regulations out of whole cloth, provided they are related in some way to the control of disease or can otherwise be characterized as disease control measures.” Said another way, PA public school boards cannot whip up new policies and regulations regarding student health merely because the proposed policy or regulation is “related to” student health and safety. The opinion states further that “It goes without saying that the Department of Health must carry out these duties within the constraints of the law and does not have carte blanche authority to impose whatever Disease Control measures the Department of Health sees fit to implement without regard to the procedures for promulgating rules and regulations, expedited or otherwise.” As a Commonwealth agency, the same applies to PA Public Schools.
The ruling continues on pages 26-29 with a discussion of the surveillance, quarantining and isolation aspects of the 1955 Disease Prevention and Control Law, which the Acting Secretary cited as authority of the Masking Order, stating, “mask wearing is not disease surveillance.” and “likewise, it cannot be said that mask wearing represents a form of modified quarantine” concluding “accordingly this subsection likewise fails to provide the broad authority claim by the Acting Secretary to impose Masking Order on otherwise healthy Pennsylvanians attending, working in, or otherwise visiting Pennsylvania School Entities.”
Finally, the Judge concludes: “The purported authority cited by the Acting Secretary in the Masking Order does not convey the authority required to promulgate a new regulation without compliance with the formal rulemaking requirements of the Commonwealth Documents Law and the Regulatory Review Act. Therefore, because the Acting Secretary did not comply with the requirements of the Commonwealth Documents Law or the Regulatory Review Act in promulgating the Masking Order, the Masking Order is void ab initio. For this Court to rule otherwise would be tantamount to giving the Acting Secretary unbridled authority to issue orders with the effect of regulations in the absence of either a gubernatorial proclamation of disaster emergency or compliance with the Commonwealth Documents Law and the Regulatory Review Act, as passed by the General Assembly. As this would be contrary to Pennsylvania’s existing law, we decline to do so.”
Now the Commonwealth Court has ruled, and the PA Supreme Court has affirmed, that PA agencies do not have the authority to issue mask mandates. Where does this leave the situation with regards to local school boards? School Board directors, district solicitors, and superintendents often cite Section 510 of the PA School Code, in the absence of federal, state, or county mandates, as their authority to mandate masks in their schools. Section 510 reads:
“Section 510. Rules and Regulations; Safety Patrols.–The board of school directors in any school district may adopt and enforce such reasonable rules and regulations as it may deem necessary and proper, regarding the management of its school affairs and the conduct and deportment of all superintendents, teachers, and other appointees or employes during the time they are engaged in their duties to the district, as well as regarding the conduct and deportment of all pupils attending the public schools in the district, during such time as they are under the supervision of the board of school directors and teachers, including the time necessarily spent in coming to and returning from school.”
No mention of masks or face coverings. No mention of disease control. No mention of health, safety, viruses, or infectious diseases. Though it does mention “as it may deem necessary and proper”. Has any school district provided facts and data substantiating the necessity and properness of a masking order? The law literally says “that it deems”. The adoption and enforcement of these rules and regulation applies to the conduct and deportment (behavior), not student health and safety.
In conclusion, after a detailed review of the legal basis and conclusion of the Commonwealth Court, which was upheld and affirmed by the PA Supreme Court, in the absence of any authorizing law, regulation, or statute, school districts simply do not have the statutory authority to mandate masks.
