Pennsylvania’s school mask mandate landed Wednesday before the state’s Supreme Court, with some justices questioning how the requirement could be described as limiting students’ “freedom of movement,” while another scoffed that might be possible “only if the mask were tied around their ankles.”
Amid their questioning of the rationale put forward by Gov. Tom Wolf’s administration — that the mask requirement was a form of “modified quarantine” expressly permitted by state regulations — Justice Kevin Dougherty also asked if such mandates didn’t violate a parent’s fundamental right “to decide what’s best for their child.”
That prompted a reply from Justice Debra Todd noting broader considerations.
“Doesn’t this measure actually address what’s best for other children?” she asked, referring to efforts to prevent the virus from spreading in schools.
The hearing, in a City Hall courtroom, left the fate of the masking order in the court’s hands. It could affirm or overturn a Commonwealth Court decision in favor of Senate President Pro Tempore Jake Corman and other parents, who successfully argued that the state’s Disease Control and Prevention Law didn’t give acting Health Secretary Alison Beam the power to order masking.
With five Democrats and two Republicans, the high court could present a more favorable environment to the Democratic governor than the Commonwealth Court, which is dominated by Republicans. Last month, the Supreme Court granted a petition from Wolf’s administration for the mandate to remain in effect while the appeal is pending.
Still, justices on Wednesday expressed some skepticism of the administration’s argument, which turns on whether Beam acted within the confines of existing state law and regulation when she imposed the mandate at the start of the school year.
Dougherty, a Democrat, acknowledged being “somewhat confused” by Senior Deputy Secretary Attorney General Sean Fitzpatrick’s assertion that the masking mandate was allowed as a modified quarantine that imposed a “partial limitation of freedom of movement.”
Fitzpatrick said the order prohibited students and staff who weren’t masked from entering school. “We’re not saying that people need to wear masks, so much as people cannot enter a school building without a mask,” he said.
At the time Beam imposed the order, Fitzpatrick said, the delta variant was spreading and “causing a lot more harm to children.” The masking requirement was a “narrowly tailored” approach to balancing disease control with the need for in-person education, he said.
He also noted that the order provided for certain medical exemptions from the requirement.
Thomas Breth, a lawyer for Corman and the plaintiffs, said the state hadn’t relied on the “modified quarantine” regulation in imposing the masking order — instead pointing to language authorizing “any other disease control measure” to protect the public. (Fitzpatrick said the administration was also arguing that masking could be seen as “another control measure” justified by the regulation.)
The justices also asked whether students could opt for remote instruction if they didn’t want to mask.
“I don’t know if all schools have that,” Breth replied. “I don’t know the quality of the education. I don’t know if it addresses all the special needs of the students.”
But, he said, that goes beyond the legal question presented by the case, as does the prospect of local school districts setting their own masking requirements, were the state order to be overturned or expire. Wolf has previously said he expected to end the mask requirement on Jan. 17.
Breth said that if his clients sought to challenge individual district orders, “we would certainly do that analysis.”
“This has become such a divisive issue in society. We all acknowledge that,” he said.