Pa. Supreme Court strikes down school mask mandate imposed by Wolf administration

The Pennsylvania Supreme Court on Friday struck down the school mask mandate imposed by the administration of Gov. Tom Wolf, affirming a lower court ruling that said state health officials lacked the authority to set the blanket requirement for students across the state.

The ruling removed a previous order that allowed the mask mandate to remain in place while the Wolf administration appealed the Commonwealth Court ruling from last month. The Supreme Court justices did not issue an opinion on the case, but promised one would be coming.

Republicans said the ruling was an important check on executive overreach.

“We join the voices of millions of Pennsylvanians who are pleased to see our Commonwealth’s highest court agree that no unelected government bureaucrat should ever have the sole and unilateral authority to issue open-ended ‘orders’ — whether they focus on public health response or something else,” House Speaker Bryan Cutler (R., Lancaster) and House Majority Leader Rep. Kerry Benninghoff (R., Centre/Mifflin) said in a statement.

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Senate President Pro Tempore Jake Corman (R., Centre), who as a parent joined the case as a plaintiff, said the decision meant “the power for parents and local leaders to make health and safety decisions in our schools is restored.”

A spokesperson for Wolf called the outcome “extremely disappointing.”

“The administration’s top priority from the beginning of this pandemic has been and remains protecting public health and safety, including students and staff, to ensure in-person learning continues,” said the spokesperson, Beth Rementer.

Rementer said the administration urged school districts to prioritize health and safety going forward. “Masking is a proven and simple way to keep kids in school without interruption and participate in sports and other extracurricular activities,” and is recommended by the CDC and the American Academy of Pediatrics, her statement said.

The order doesn’t necessarily mean an end to school masking: Some school systems have said they plan to continue requiring masks regardless of a state mandate — including Philadelphia, the state’s largest district. Others said Friday they were consulting with their solicitors.

In Cheltenham, Superintendent Brian Scriven told the community Thursday that regardless of the court’s decision, the district intended to require masking through the 2021-22 school year.

“We have a duty to keep our students, staff, and community healthy and safe, and with the emergence of the omicron variant of COVID-19, many unknowns regarding its transmissibility and overall effects are at play,” Scriven said.

Enacted in September, when thousands of students statewide began returning to the classroom for the first time since the pandemic began, the mandate required all students, staff, and visitors to wear masks inside public and private K-12 schools. Last month, as the case wound its way through the courts, Wolf announced his intention to lift the requirement in January in a bid to return “to a more normal setting.”

Wolf gave no indication that timetable would change, though COVID-19 cases have been rising again across the state, and the litigation continued.

The case didn’t turn on the reason for masking in schools. In the Commonwealth Court decision that initially struck down the mandate, Judge Christine Fizzano Cannon noted that the judges had “no opinion regarding the science or efficacy of mask-wearing or the politics underlying the considerable controversy the subject continues to engender.”

Instead, the litigation focused on the state’s authority to make that order. During oral arguments Wednesday, some justices seemed skeptical of the administration’s position that masking was a form of “modified quarantine” permitted under existing state law and regulations.

The plaintiffs who brought the case — Corman, State Rep. Jesse Topper (R., Bedford), and other parents and schools — had argued that Acting Health Secretary Alison Beam erred in not following a formal process to create a new regulation when she imposed the masking requirement after many school districts opted not to. Within days, court battles over the state mandate had begun.

The lawsuit was backed by the Amistad Project, a conservative group that brought litigation challenging the 2020 election results, including in Pennsylvania.

In a statement, the group’s executive director hailed Friday’s ruling.

“Some government officials have used COVID to fundamentally reorder the nature of our government, and have violated democratic principles and personal liberty in the process,” Phill Kline said. “The Pennsylvania Supreme Court has agreed that this must stop.”

School mask mandates — or the right to impose them — have spurred litigation across the country. Some states have faced lawsuits for barring local school districts from requiring masks. The Arizona Supreme Court last month affirmed a decision striking down a state ban on school mask mandates, while states such as Florida have maintained their bans, though with battles over enforcement.

Other states have required masks in schools — including neighboring New Jersey, where a federal judge this week rejected a challenge to the state’s school mask mandate.

Dismissing claims by parents that the requirement violated their children’s First Amendment rights, Judge Kevin McNulty wrote in an opinion Tuesday that “to be ‘muffled’ is not to be gagged.” He also dismissed an equal protection argument — saying that the mandate applied to all schools, and that it was rational for policymakers to impose it.

» READ MORE: Parents, including a top Pa. Republican, are suing over the school mask mandate. Here’s what to know about the cases.

Still, the mask debate has been fraught in some area districts.

School administrators have also expressed concern about having to quarantine more students if masking were to be dropped, based on current rules for students who are close contacts of students who test positive for the virus.

Thomas W. King III, a lawyer for Corman and the other plaintiffs, said he anticipated some districts that keep masking requirements intact would face legal challenges over whether Pennsylvania law “delegates to school districts” the right to do so.

While the case decided a narrow issue, the ruling is “much more important than just masks,” King said. “The Supreme Court has proven that no one is above the law — not a governor, not a health secretary, and not anyone else who’s required to comply with the law before issuing mandates in Pennsylvania.”