Pa. Commonwealth Court panel hears argument on masking in schools

The Pennsylvania Commonwealth Court heard more than 90 minutes of argument Wednesday on whether the state’s acting secretary of health had the authority in August to issue an order mandating the wearing of masks in all schools to prevent the spread of covid-19.

The panel of five judges were considering two separate petitions challenging the Aug. 31 order by Acting Secretary of Health Alison Beam. The first contends the order is unlawful because it is a new regulation that did not go through the proper rule-making process. In addition, it alleges masks are not a “disease prevention and control measure” under existing law.

The second petition argues the order violates rights to religious freedom.

Both petitions were filed by the parents of Pennsylvania students.

The petitions ask the court to strike down the order in its entirety.

The Attorney General’s Office, which represents the state Department of Health, argues the masking order is authorized under state regulations that give the secretary broad discretion to “determine and employ the most efficient and practical means for the prevention and suppression of disease.”

Thomas E. Breth, a Butler-based attorney who represents the plaintiffs in the first case, said the central issue is how to interpret state law.

“This is not a case about the appropriateness of wearing masks or the seriousness of covid,” he said. “This is purely a legal issue on whether the secretary of health has the authority to issue the order.”

She does not, Breth said.

“They cannot just create their own rules and regulations,” he continued.

Breth cited the Disease Control and Protection Law of 1955, which gives the Pennsylvania Department of Health or local health authority the power to order:

• “Direct isolation of a person or an animal with a communicable disease or infection.”
• “Surveillance, segregation, quarantine or modified quarantine of contacts of a person or an animal with a communicable disease or infection.”
• “Any other disease control measure the department or the local health authority considers to be appropriate for the surveillance of disease, when the disease control measure is necessary to protect the public from the spread of infectious agents.”

That, he argued, does not allow for a statewide masking order.

“This statute, as written, may be completely inadequate to address a pandemic,” Breth said. “That doesn’t change the fact that it’s the law. That’s what we work with.”

And if it is inadequate, he said, new regulations must be written.

Further, he argued, it is unprecedented to put in mask regulations for healthy individuals.

J. Chadwick Schnee, a Lebanon County-based attorney who argued on behalf of the second petition, agreed.

“It assumes everyone is exposed to covid-19,” he said.

“Isn’t that the case, though?” asked Judge Michael Wojcik. “It’s rampant across the commonwealth. It’s rampant across the country. It’s an airborne disease. Over 700,000 people have died.”

“It’s 1.4% of the population,” countered Judge Patricia McCullough.

During his argument, Schnee focused on the fact that the order has no exception — or ability for a student to object — for religious or philosophical grounds, which he said is a constitutional violation.

Children have a fundamental right to breathe clean air and receive a public education, he said.

“When there’s a fundamental right at issue, due process is triggered,” Schnee continued.

But Chief Deputy Attorney General Karen Romano argued to the court that Beam was within her authority as the acting secretary of health to implement the order to attempt to quell the outbreak of covid in schools across Pennsylvania at the beginning of the school year.

“The secretary is the one that is tasked with protecting the individuals in this commonwealth, and that’s what she’s doing here,” Romano said.

Also citing the 1955 law, Romano argued the masking order falls under the concept of “any other disease control measure.”

However, multiple judges cited the entirety of that passage, asking Romano how masks apply as “any other disease control measure … appropriate for the surveillance of disease.”

Judge Christine Fizzano Cannon read from the law that defines surveillance as “the close supervision of persons with disease without restricting their movement.”

Romano responded by saying that with covid-19, some people are infected but asymptomatic.

“We don’t know who is positive,” she said. “You, essentially, have to treat everybody as a contact.”

McCullough countered: “You still need a rule or regulation. Nowhere in there does it say you can restrict the movement of or infringe upon everybody.”

Seizing upon one of the petitioner’s arguments, McCullough and Cannon questioned why — 20 months into the pandemic — the state hadn’t just gone through the rule-making process to create new regulations relative to covid-19 and masking.

“It’s hard to understand why the process wasn’t followed in this case,” Cannon said. “Why not consider an emergency order or expedited path to regulation?”

“What changed were the facts on the ground,” Romano said, citing skyrocketing cases and the inability of children under 12 to be vaccinated. “The wearing of masks has been proved by the science to prevent the spread of the virus.”

McCullough disagreed.

“There’s conflicting science on that, so let’s not get into the efficacy of wearing a mask,” she said. “We’re not here to determine that.”

The panel did not say when it would render a decision on the matter.