Update: On November 10, the Commonwealth Court of Pennsylvania sided 4-1 with the ranking Republican in the state Senate and others who sued to challenge the masking order that took effect in early September as a result of the coronavirus pandemic. The governor's office is appealing the decision. On November 8, Governor Wolf had announced his intention to return the decision to local school boards on Jan. 17, 2022.

A court challenge to the statewide mask mandate for all K-12 schools and daycare facilities may have ended last Thursday when a joint, bi-partisan committee decided 7-4 that the Acting Pennsylvania Secretary of Health does in fact have the authority to mandate masks for as long as the Covid health threat continues.

As a result of that decision, two legal challenges to the Pennsylvania mask mandate were left in doubt. Those cases, brought by members of the state legislature and some parents of school-aged children, seek to end the state-wide mask mandate in schools. 

The Commonwealth Court of Pennsylvania heard arguments on the cases on Wednesday, October 20. The hearing was before the full court, which happens when a case is considered too complex to place with just one justice.

Plaintiffs, which include Senate President Pro Tempore Jake Corman, (R-Centre); Rep. Jesse Topper (R-Bedford); two private Christian schools; and parents in three public school districts, Wyomissing Area in Berks County, and Butler County's Butler and Slippery Rock Areas, presented two main arguments. 

First, attorney Tom Brett argued that a uniform regulation for all K-12 schools and daycare facilities was unnecessary, since some schools did not have active COVID cases, and the Disease Control Act of 1955 only allows the Department of Health to impose rules in the case of active cases. The judges were skeptical of this argument. President Judge Emerita, Mary Hannah Leavitt , asked “What could be more practical?”  Brett responded, “That’s a science issue.” 

The judges were more receptive to the second argument, that Secretary Beam did not have authority to mandate  requiring a mask as a disease-control measure since masks were not specifically authorized by state law, and such authority would need to be granted by a new state law. 

Attorney J. Chadwick Schnee, from the law office of Tucker Hall, argued that the Health Department only had recourse to impose quarantine, not the “limited quarantine” that masks represent. Judge Michael H. Wojcik seemed impatient with this line of argument, saying “it’s an airborne disease.” Schnee and Brett both argued that the state legislature had removed Governor Wolf’s authority to extend emergency powers, and the mandate had no expiration date. 

Chief Deputy Attorney General Karen Romano, representing Beam, argued that the mandate was covered under a 1929 law, which says the health secretary has a duty to “employ the most efficient and practical means for the prevention and suppression of disease.” There was no expiration date, she argued, because the disease was not subject to a calendar. Romano faced questions from the judges about the specifics of the regulations that allow for the mandate, and at times seemed to struggle to point to a specific clause. However, it was not always clear that all the judges were familiar with the regulations either.

The PA Joint Committee on Documents considered the question at the request of the Republican chair of the House Health Committee, Rep. Kathy Rapp of Warren County. Rapp, whose committee had voted to keep the mask mandate. Rapp, who sought to reject the mandate, was hoping that the committee would decide that the state does not have the authority to mandate mask wearing. 

Rapp objected to the decision, issuing a statement that it “blatantly ignores our foundational constitutional separation of powers, the rule of law, local control, parental and student rights, and especially individual liberty.” 

Committee member and House Speaker Bryan Cutler (R-Lancaster) also voted to reject the mandate, though he did say he would have allowed the mandate to stay in place while new, enabling legislation had passed. As of Monday, Cutler had not decided whether to appeal the decision with the Commonwealth Court.

A spot survey of local Chestnut Hill and Mt. Airy schools did not show any cases where a student has refused to wear a mask in class since in-person learning returned this fall, though enforcement in hallways and lunch areas varied. For privacy concerns, schools might not report individual arrangements.

The PA Joint Committee on Documents includes General Counsel, the Attorney General, the Director of the Legislative Reference Bureau, the Director of the Pennsylvania Code, the President pro tempore of the Senate, the Minority Leader of the Senate, the Speaker of the House of Representatives, the Minority Leader of the House of Representatives and the Secretary of General Services, or persons severally designated in writing by them. Some additional public members are appointed by the governor.

Masks are required in all Philadelphia schools. For public school, weekly testing is required for sports and theater activities. All staff is required to be vaccinated.

The Philadelphia School District provides COVID-19 vaccination information at philasd.org/studenthealth/covid-vax/

The print edition of this article was titled "Legal challenge to school mask mandate fails."