January 31, 2023

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The Commonwealth Court has dismissed a lawsuit against the State Department of Education and five other school districts, including Pennsbury in Bucks County, for requiring masks.

The Dec. 1 ruling ends a legal challenge that claimed school districts did not have the authority to require masks, after another ruling two years ago overturned a statewide mandate from the Department of Health for face coverings.

An opinion by Commonwealth Court Judge Christine Fizzano Cannon found that an email advising that schools could continue to implement mask requirements was not an order and that a lawsuit was moot as schools largely comply with the pandemic rules would have lifted.

“The current availability of effective vaccines, the CDC’s widespread waiver of masking recommendations for non-high-risk individuals, and the trajectory of the COVID-19 pandemic in terms of decreasing virulence of successive variants suggest that there are fears of a return to masking requirements are hypothetical speculations rather than concrete probabilities,” Cannon said.

Peter Amuso, a partner at Rudolph Clarke, LLC, who represented Pennsbury with attorney Samantha Newell, described the filing by nine parents of school-age children in three counties, the Lehigh Valley and Pittsburgh, as an attempt to “invalid” the school boards’ authority do” to respond to a pandemic.

“Through the Schools Act, our legislature has given local school boards broad powers to protect students based on local conditions,” Amuso said in a news release Friday. “We were proud to protect these broad powers for Pennsbury and our other school district clients, as well as for all school districts throughout the Commonwealth. We remain ready to support our customers with these complex security issues.”

Another masking lawsuit in Pennsbury:Three Pennsbury parents are suing the school district over requiring masks for COVID-19

The lawsuit stemmed from an email that Pennsylvania Secretary of Education Noe Ortega sent to counties across the state in November 2021, noting that they had the authority to wear masks in school regardless of state requirements to demand, as court documents show.

“School institutions still have the authority and are encouraged to require masks in their facilities, as recommended by [the] CDC. Masking in school settings minimizes the spread of COVID-19, particularly in settings where individuals and students are unvaccinated, and allows for reduced quarantine to keep individual students and staff at school,” Ortega wrote.

The email followed the Commonwealth Court ruling overturning an August 30, 2021 order by then-acting Health Secretary Alison Beam that required masks at school.

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The Pennsylvania Supreme Court upheld the Commonwealth Court decision last December when it was challenged by Gov. Tom Wolf’s administration, ending the mandate more than a month before Wolf said it would expire.

Wolf announced the mandate’s expiry date just days before the Commonwealth Court’s first decision.

Pennsbury was one of several school districts in Bucks County that continued to require masks after the state mandate ended, as a newer variant of the coronavirus led to a surge of COVID-19 cases this winter.

Districts will respond after the mandate expires:Do Bucks County students have to wear masks in school? Some districts become optional, while others retain the mandate after a court ruling

It was not until February 8, 2021, that the parents filed their petition with the court, claiming that Ortega’s email made a mistake in advising school districts that they could require masks and that school districts do not have the authority to change the mask rules enforce.

In addition to Ortega and Pennsbury, the petition specifically named the Fox Chapel Area school district in Allegheny County; the Stroudsburg Area School District, Monroe County; Parkland School District in Lehigh County; and the Carlynton School District and Seneca Valley School District in Pittsburgh.

While Amuso, who coordinated with attorneys for the Department of Education and other designated school districts, argued that school boards have the authority to require masks under Section 510 of the Public Schools Act, the court ruling does not address that argument.

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