Masks in Pa. schools: Court tosses Wolf administration mandate, but state vows appeal

Joseph Spector Candy Woodall
Pennsylvania State Capital Bureau

A state court Wednesday sided with opponents of Pennsylvania's order to require masks in schools, saying it was not issued properly by Gov. Tom Wolf's administration in September.

The decision is a victory for Republicans lawmakers and opponents of the mask order and comes just days after Wolf said he would allow local districts to decide in January whether to keep the mask mandate in schools.

The decision, though, won't have any immediate impact: Wolf is vowing to appeal before taking any further action, and his office said it notified schools late Wednesday that they must not change their mask policy until the appeal is decided.

Commonwealth Judge Christine Fizzano Cannon wrote in the 4-1 opinion that the decision isn't about whether masks in schools is a proper method to slow the spread of COVID-19. She said Acting Health Secretary Alison Beam didn't go through the correct process to enact the mandate.

"We decide herein only the narrow legal question of whether the Acting Secretary acted properly in issuing the Masking Order in the absence of either legislative oversight or a declaration of disaster emergency by the Governor," Cannon wrote.

"Upon review, we grant Petitioners’ Application and deny Respondent’s Application."

A judge ruled against Gov. Tom Wolf's administration decision in September to order masks in schools.

The Pennsylvania Department of Health said Beam's authority is "clearly outlined in existing law" and the state's counsel filed an appeal Wednesday, according to Wolf's press secretary Elizabeth Rementer.

"Filing of the appeal will immediately stay the Commonwealth Court’s decision," she said.

The administration's appeal means Wednesday's ruling will not impact the current implementation of the school masking order, which Wolf earlier this week said would expire Jan. 17. 

Wolf issued the order through the state Health Department that students, teachers and staff would have to wear mask when the returned to school in the fall.

But Cannon wrote the state's Disease Control Law does not give health secretaries “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.”

The mandate has caused a sharp divide in communities across the state, leading to a bevy of lawsuits and contested school board races this year.

Senate President Pro Tempore Jake Corman, R-Centre, who was among the plaintiffs argued when the lawsuit was filed that, "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 on Wednesday tested positive for COVID-19, a day before he was expected to announce a run for governor. 

More:Statewide masking order in Pa. schools set to end Jan. 17. Why Gov. Tom Wolf announced the change

More:Wolf administration's school mask mandate starts today. Is it legal?

Joseph Spector is the Government and Politics Editor for the USA TODAY Network's Atlantic Group, overseeing coverage in New York, New Jersey, Pennsylvania, Maryland and Delaware. He can be reached at JSPECTOR@Gannett.com or followed on Twitter: @GannettAlbany