Wolf administration's school mask mandate starts today. Is it legal?
Days after school started in many parts of the state, a masked Gov. Tom Wolf explained how his state Department of Health would keep kids in classrooms and the delta variant out, setting up a fight with Republicans and a wave of lawsuits.
Students, teachers and staff will have to wear masks in schools, according to a Pennsylvania Department of Health order that will take effect at 12:01 a.m. the day after Labor Day.
While the school mask mandate may inflame the pandemic's partisan divide, it's not illegal, according to experts.
Republicans have disagreed with that finding, saying Wolf and Acting Secretary of Health Alison Beam are ignoring the will of 52% of primary voters who chose to limit the governor's executive powers in emergencies.
Senate President Pro Tempore Jake Corman, R-Centre, said, "This is exactly the kind of government overreach voters opposed when they stripped Governor Wolf of the authority to unilaterally extend emergency declarations in May."
Corman and a group of parents on Friday filed a lawsuit in Commonwealth Court, seeking to overturn the new mask mandate for schools. Their lawsuit claims the mask order isn't valid because it didn't go through Pennsylvania's regulatory review process.
Some school districts, too, are questioning the mandate.
In a letter to parents, the Pennridge School Board in Bucks County called the order "disruptive" and against the will of the district, where masks were not required. It said it felt forced to comply.
"It is abundantly clear that the Governor’s Order is against the wishes of the majority of the Pennridge community," the board wrote. "Please know that, because the Board believes the Governor has exceeded the authority granted him by the laws on which he relies, the Board will be actively considering opportunities to participate in any litigation filed by school districts seeking to challenge the Governor’s unilateral imposition of these requirements without any regard for local control of schools."
Legal experts: State DOH mandate may stand
Yet constitutional law experts say the amendments that passed in the May primary do not apply to the school mask mandate.
"Without an emergency declaration, the governor isn't using emergency powers," said Bruce Ledewitz, a law professor at Duquesne University.
Also, it's not Wolf's mandate. The school mask order came from Beam.
That has prompted some Republicans to renew a push for stripping the Department of Health's ability to issue mandatory masking and social distancing orders. They are hoping they can get the effort passed through an amendment process much like they curtailed Wolf's emergency powers with the primary results.
"These threats from Republican members of the General Assembly are dangerous and their proposals would undermine any attempt to protect public health in any circumstance," said Wolf spokeswoman Lyndsay Kensinger.
Attempts to limit the health secretary's powers would further the spread of all deadly communicable diseases, not just COVID-19, she said.
"These extreme, political measures would actively allow the spread of over 110 communicable diseases, like meningitis and Ebola, within our communities and impact the department’s ability to protect Pennsylvanians," Kensinger said.
'Stupid and dangerous'
Ledewitz said governing by constitutional amendments could backfire on Republicans.
"It's really stupid and dangerous," he said. "If you take away the ability to have mask mandates, the next time there's a Republican governor and secretary of health, they can't do anything about it."
It would take another two-year process to amend the constitution.
"You cannot govern this way," Ledewitz said. "The Republican Caucus has lost touch with reality."
If Republicans believe there's an abuse of authority, they should hold hearings and show any science they have that proves masks won't protect kids, he said.
Republicans have chosen the path of constitutional amendments to circumvent Wolf's expected veto if they try to pass a bill that removes the health secretary's power to issue public health mandates.
"Live with the veto and elect a Republican governor if you want change. The way you deal with a governor who you think does bad things is to elect another governor. You run on it," Ledewitz said. "These people don’t want to do regular democracy."
But Republicans do believe they are making democratic decisions.
GOP lawmaker: Keep mask decisions local
State House Majority Leader Kim Ward, R-Westmoreland, said personal and local decisions are the best way to protect the health and safety of Pennsylvanians. Letting the government decide is not right, according to Ward.
"COVID-19 is not going away, and school has just begun," she said in a statement. "Immediately surrendering to emotion is a sweeping and restrictive measure that will result in government control of our daily lives. While I believe Gov. Wolf’s efforts are well intended, his approach is not based on data nor does it consider the demographics, geography, and cultures across the Commonwealth."
Wolf was criticized last year for making too many unilateral decisions during the early days of the pandemic in 2020. Late last month, he sent a letter to House and Senate Republican leaders, urging the Legislature to come back from its break and pass a bill issuing a mask mandate.
Republicans said they did not have the will or votes for a statewide mask mandate, and they will return to session in late September as planned.
With only about 50 of Pennsylvania's 501 school districts issuing their own mask mandates, Wolf said his administration had to act to protect public health.
Multiple school board members told the USA TODAY Network Pennsylvania Capital Bureau they preferred having the state make the decision because their school board meetings had become too tense because of mask fights among parents.
Pediatricians, parents and teachers' unions were also calling on Wolf to act, though he said at the beginning of August that he wouldn't implement a mask mandate.
Once every county in Pennsylvania reached high or substantial rates of coronavirus transmission, the governor said he had to do something.
"This is a necessary step to keep our students and teachers safe and in the classroom, where they all need to be and where we want them all to be," Wolf said. "Doing nothing right now to stop COVID-19 is not an option."
Doing nothing could have prompted lawsuits, too.
"It's not about a legal prerogative. It's a legal obligation to protect public health," said Eric Feldman, a professor of medical ethics and health policy at the University of Pennsylvania Carey Law School.
He expects the state could face some lawsuits from parents because of the mask order.
"We’ve seen litigation now for months," Feldman said. "Most of it has failed, not just in progressive states with judges appointed by liberals, but also with judges appointed by former President Trump."
"So will we see litigation? Yes," he said. "Will it succeed? I doubt it."
But the mask order and accompanying lawsuits will continue the political divisiveness, Feldman said.
"We’re prolonging the pandemic and prolonging our misery by continuing to fight," he said.
Candy Woodall is a reporter for the USA TODAY Network Pennsylvania Capital Bureau. She can be reached at 717-480-1783 or on Twitter at @candynotcandace.