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.

The author of this article is not an attorney and this article should not be construed in any way as legal advice or opinion.

The post Opinion: PA Public School Districts Do Not Have the Statutory Authority to Mandate Masks and Face Coverings appeared first on ReOpen Bucks.

In the vaccination policy FAQ on their official University website, Bucknell asserts that the vaccine offers the best opportunity for safety. This statement ignores 34 million Americans who have recovered from the infection and now have active, effective anti-bodies. Students with immunity as a result of infection is completely missing from Bucknell’s entire FAQ – there is not a single reference to anti-bodies, recovery, or immunity. The FAQ is myopically focused on the vaccine.

This myopia is concerning because the manufacturers of the two MRNA-based vaccines, Moderna and Pfizer, clearly recognize that recovered individuals are already protected and therefore do not need the vaccine. We know this by reading their Emergency Use Authorization request to the FDA. In both companies’ request documentation, they indicate during enrollment all 28,000 trial participants were screened for an existing covid infection via PCR test and a past covid infection and recovery with an antibody test. Both tests are authorized for use by the FDA for their indicated purpose. If a trial participant tested positive on either test – they were excluded from the clinical trial. Below is page 83 of the Moderna EUA.

In addition, the European Union recognizes recovered as equal to vaccinated in their green digital vaccine passports.

Accordingly, Bucknell should recognize recovered Covid-19 persons as equal to vaccinated persons, in line with the FDA and EU, because the vaccine triggers the same exact immune response in the human body as the virus itself by creating a spike protein that appears similar to the virus’s spike protein. Different trigger, same outcome – antibodies and immunity.

Bucknell asserts that the policy will continue until the pandemic passes. What quantitative criteria has Bucknell established to indicate when the danger will have passed? According to the PA Dept of Health Covid data, Union County where Bucknell is located has a grand total of 3 patients in the hospital with Covid. To be clear, this means that 3 patients are currently in the hospital, and they have tested positive for Covid. This does NOT mean the patient is in the hospital as a result of Covid infection. As the graph below clearly shows, hospital impact is near the lowest it has been.

The PA Dept of Health will have lifted every single Covid intervention as of June 28 because their data indicates the danger has passed. Why is Bucknell superseding PA state and CDC guidance? In the entire county of Union over the most recent 7 days, there were 6 cases, fewer than 1 case per day. Positivity rate is 1.1%

They assert that asymptomatic spread can occur and that creates an unsafe condition for students and staff. They do not provide any facts or citations for this assertion. On the counter, Dr. Fauci says otherwise, here.  Not only does Dr. Fauci confirm asymptomatic spread is rare, even when it does occur it is not the primary driver of outbreaks. Quoting Dr. Fauci, he says “even if there is some asymptomatic transmission, in all the history of respiratory borne viruses of any type, asymptomatic transmission has never been the driver of outbreaks. The driver of outbreaks has always been a symptomatic person”. Infection is required for transmission. Any virologist or epidemiologist knows this. Without a covid infection, the human body is not replicating the virus in sufficient volume to transmit to others sufficient to cause an infection. No symptoms, no infection. No infection, no transmission. No transmission, no danger. These are the facts.

We also need to look at the success of past policies and inventions – did the predicted doom and gloom occur as anticipated? In the fall of 2020, the media was riddled with stories about college students traveling back and forth from campus, along with the fear of transmission. Did this happen? No. Data shows that college campuses were not vectors for spread, and while there were some cases reported, there were virtually no hospitalizations or severe outcomes in this age group or the community at large.

Bucknell asserts that it has the authority to mandate vaccination by comparing covid to other communicable diseases. According to the CDC’s annual mortality data, the seasonal influenza kills more college age kids annually than covid ever did or will. There is a biological reason for this. As explained here younger humans have fewer ACE2 receptors, which are the cell receptors that the SARS-CoV-2 virus binds to. No binding, no infection. No infection, no transmission. These are indisputable biological facts, which is why it is shocking that Bucknell ignores them.

By Aug 1, more than 70% of the adult population in the state of PA will be fully vaccinated. Who, exactly, is Bucknell trying to protect? For those who have recovered – about 10% of PA residents, they are already protected. And for the remaining 20%, they have willingly chosen to abstain from the vaccine, making a risk-based decision. Is Bucknell really compelling their entire student body to take an unapproved vaccine to protect 20% of the state population who have willingly decided not to take the vaccine? At least 92% of PA residents over the age of 65 have been fully vaccinated, and they are the age group most at risk. So again, who is Bucknell protecting with this mandate?

Bucknell, in their FAQ states The University will follow prevailing medical recommendations and state and federal guidelines”. Really? Both the CDC and PA Dept of Health have no mandates for vaccinating college students, so whose advice are they following?

Does Bucknell understand that a significant number of adverse reactions to the Covid vaccines have been reported to VAERS. In fact, the total number of reported COVID-19 ADRs exceeds the total number of all ADRs reported for all drugs, combined. This is significant.

The University’s explanation as to why staff are not subject to the vaccine requirement is arbitrary and capricious. Primary schools in PA are not a high-risk source of infections because younger people are not vectors for infection in the first place, regardless of where they congregate. Additionally, plenty of primary school teachers and staff have been infected with COVID, due to their age, not the location of infection.

Did Bucknell require extraordinary steps for students who were previously exempted from other vaccinations, such as the mandatory sequential testing, travel approval, and mandatory quarantining in university-provided isolation housing? They say this policy is an extension of existing student health and safety plans. It does not appear to be.

Bucknell states this is a policy. Did the Board of Directors approve this policy? Is it an actual written and approved policy available on their public website?

Bucknell, in its FAQ states, that students “make request a leave of absence until the community risk of COVID-19 is mitigated.” Yet Bucknell sails to offer proof that the risk is not already mitigated with current interventions expiring. The fact that the CDC and PA Dept of Health are lifting all remaining interventions are proof the danger has passed.

Let’s look at statistics around us. The entire population of Sweden’s primary school population has been educated this school year without vaccines and without masks, yet their covid outcomes were proportionally almost identical to the US.

Bucknell’s FAQ asserts that a 2nd dose confers “full immunity”. The vaccine is at best 95% effective; however, we know that Moderna and Pfizer have never nor are scheduled to conduct any challenge studies, obviating the proof necessary to understand if the vaccine actually prevents infection, or merely reduces serious infection as the EUAs indicate – by stating the primary endpoint of the vaccine is not reduction of spread or infection, but rather a reduction in severe symptoms, see EUA link above.

Finally, requiring all college students to receive the vaccine regardless of previous infection status is anti-science and ignores 34,000,000 Americans who have suffered from COVID-19, have recovered and now have active, effective antibodies. The vaccine manufacturers themselves excluded anyone with a previous history of COVID-19 infection. At a minimum, Bucknell should follow this sound medical advice; subjecting a student to a new immunity event after previous infection can lead to more severe adverse events, as this article explains.

Further, this Cleveland Clinic study of 56,000 participants confirmed no additional benefit of vaccination for recovered covid patients.

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As of Tuesday, June 1, 2021, students in Pennsylvania can legally return to the classroom without a mask. Here’s why: recent CDC COVID-19 intervention guideline changes, combined with the March 17, 2021 update from the Pennsylvania Department of Health (PA DoH) enable your child to return to the classroom without a mask starting on Tuesday, June 1, 2021.

In the fall of 2020, PA school districts in counties that were in the “Substantial” range as defined by the Pennsylvania Department of Education (PDE) were required to sign an Attestation Form in order to use instructional models that deviated from the PDE’s Low/Moderate/Substantial scale. For example, if a county was in the Substantial range, the only instructional model permitted was ‘full remote learning model” aka virtual. However, if the school district signed the attestation form, they could open for in-person instruction.

This attestation form becomes null and void on May 31, 2021, per a May 4, 2021 PDE announcement or earlier if the county was in the Moderate or Low phase for two weeks. The attestation form required more rigorous compliance with the PA DoH universal masking order.

With the attestation process no longer applicable, COVID-19 guidelines revert to the updated PA DoH Order which incorporates the latest CDC guidance and permits exceptions. Section 3 of the Order exempts a student from wearing a mask or face shield in school “If wearing a face covering would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition or a disability.” Therefore, because wearing a mask causes respiratory issues that impede breathing, students under this exception are no longer required to wear a mask or face shield.

Many school districts have struggled to understand and adapt to the ever-changing guidelines from various federal, state, and local governments. Therefore, they may not fully understand the implications of the attestation form expiration and that it makes mask wearing optional masking for students.

However, some Pennsylvania districts have anticipated this impending change and are already preemptively making masks optional starting June 1. This includes Rockwood Area, Cumberland Valley, Northern York County and Montoursville Area School Districts.

Parents who wish to pursue this exception are strongly encouraged to contact their school principal to notify them of their child’s status before they appear in school on Tuesday without a mask. No exemption form is required, although you may choose to submit one, and the Order specifically states that the medical exemption reason need not be disclosed. This notice provides the district time to properly notify school administration of the valid lack of face covering, avoiding a potentially uncomfortable situation for your child. If your school district does require a written notice, use this form.

May 4 PDE Announcement

Department of Health Updates Mask Guidance Following CDC Announcement

Order of the Acting Secretary of the Pennsylvania Department of Health Amending the November 17, 2020 Order of the Secretary of Health

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