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Parents, including a top Pa. Republican, are suing over the school mask mandate. Here’s what to know about the cases.

Several legal experts said they didn’t expect the claims to succeed — noting that courts have long upheld the authority of states to regulate public health. But they also didn’t rule out the prospect.

Students with arms out in front of them are attempting to keep a distance from their classmates as they enter their school on the first day of class at Powel SLAMS in Philadelphia on Aug. 31.
Students with arms out in front of them are attempting to keep a distance from their classmates as they enter their school on the first day of class at Powel SLAMS in Philadelphia on Aug. 31.Read moreALEJANDRO A. ALVAREZ / Staff Photographer

After months of heated school board meetings, the battle over whether children in Pennsylvania schools have to wear masks has shifted to the courts.

At least three lawsuits have been filed challenging the order by Gov. Tom Wolf’s administration, which took effect last week and has generated protests in some school communities.

One case alleges that two children “could not breathe while wearing a mask,” and that another family believes “wearing masks interferes with their religious duty to spread the word of God and forces them to participate in a satanic ritual.”

Legal experts say they don’t expect the claims to succeed; courts have long upheld the authority of states to regulate public health. But they also didn’t rule out the prospect of surprise rulings.

“COVID fatigue applies to everybody, including judges,” said Scott Burris, director of the Center for Public Health Law Research at Temple University Beasley School of Law. Still, he said, “courts remain places where facts matter.” He and others said it would be hard for a judge to find that a mask mandate was outside the bounds of what Pennsylvania’s public health law allows.

Here’s a look at the cases:

Different plaintiffs, same goal

One challenge was brought by the top Republican in the Pennsylvania Senate. Backed by a conservative group that has challenged the 2020 election results, Senate President Pro Tempore Jake Corman says he signed on as a Bellefonte Area School District parent, not a legislator.

Other plaintiffs in the same case include fellow Republican State Rep. Jesse Topper of Bedford County, other parents, and two Christian schools. Together they contend acting Health Secretary Alison Beam didn’t have the authority to issue the order because no state rule or regulation exists that provides for a mask mandate. A hearing on their claim scheduled for Thursday was continued without a new date.

In a second case filed against Beam in Commonwealth Court, parents in Bucks County and elsewhere also accuse her of overstepping her authority — in particular, in counties that have their own health departments.

A third case, filed in federal court by parents against the Tredyffrin/Easttown School District, argues that not only did Wolf’s administration not have the right to order masking, but neither did the Chester County district, which had announced its own mask requirement prior to the state mandate.

Clashing over a 1955 law

Beam’s order cited Pennsylvania’s Disease Control and Prevention Law, which was passed in 1955 and charges state and local health departments with “the prevention and control of communicable and non-communicable disease.”

Just how much authority the state department has — and whether it extends to masking — is the question at the root of the challenges.

Corman’s lawsuit points to a paragraph in the disease control law that says the department can enact “appropriate control measures in such manner and in such place as is provided by rule or regulation.” Because no state regulation providing for masking exists, and Beam didn’t follow the traditional process to create one, the order is invalid, the lawsuit argues.

Allison Hoffman, a University of Pennsylvania Law School professor who focuses on health-care law and policy, said that was likely too narrow an interpretation.

“It would be impossible for a state to lay out every possible thing the state could be allowed to do in addressing a public health concern,” Hoffman said. Pennsylvania is “doing what the CDC says to prevent the spread of a pandemic.”

The second Commonwealth Court case also argues that Beam overstepped her authority — but includes a different claim, focusing on counties with their own health departments. It points to language in the disease control law that says local departments “shall be primarily responsible for the prevention and control” of disease, and that the state can intervene if it deems the local department “so inadequate that it constitutes a menace to the health of the people.”

“The plain text of the statute speaks for itself,” said Chadwick Schnee, the lawyer who filed the case and is also representing parents who sued the Central Bucks School District in June over its mask requirement. The district dropped the requirement in the final days of the school year, but parents have now filed an amended complaint.

Kevin Levy, a Philadelphia lawyer who advises clients on complying with COVID-19 regulations, called the challenge “innovative” but unlikely to succeed. “It’s not a fair reading of the statute to argue that just because a local board is empowered to make disease control decisions, that means it has the exclusive power to make those decisions.”

In the Tredyffrin/Easttown case, parents are arguing that nothing gives the state, county, or school district the power to require masks, which they refer to as “unapproved medical devices.” They also argue — as do parents in the case filed by Schnee — that wearing masks violates their religious beliefs.

No clear precedent

While the U.S. Supreme Court has been protective of religious claims, lawyers said it was hard to envision that a religious challenge to masking would succeed. They noted the court’s decision in February to strike down a pandemic ban on church services in California.

“It’s one thing to say you can’t get in the way of people gathering for a religious ceremony,” said Hoffman, the Penn professor. “That feels very different than somehow having to wear a mask is a violation of religious belief or practice.”

Burris, of Temple, said there was “just no evidence that masking is the result of a satanic conspiracy. There is good evidence that masks save lives.”

In addition to their religious objections, Central Bucks parents represented by Schnee said in their lawsuit that their child “also has a philosophical objection” to masking “as, given the 99.997% survival rate to COVID-19 in his age group,” he believes that masks “are being used as a control mechanism over the population.”

In December, a federal judge in Harrisburg had rejected a challenge to Pennsylvania’s mask mandate by residents who argued that wearing a mask was a “political symbol,” forcing them to communicate a message they disagreed with. They also claimed masks were “unwanted medical treatment.”

Judge John E. Jones III found that the plaintiffs didn’t have standing to challenge the mandate — in part because it didn’t affect just them but applied to every Pennsylvanian. In his order, he noted other federal courts had reached similar conclusions in cases in Massachusetts, Missouri, and Louisiana.

The Pennsylvania plaintiffs, represented by a Michigan group called the American Freedom Law Center, have appealed to the Third U.S. Circuit Court.

What happens next?

In the case filed by Corman — supported by the conservative Amistad Project group — the Commonwealth Court has set a Sept. 23 deadline for lawyers to file briefs on whether the mask order should have gone through the state’s regulatory review process.

The same court has given the state until Monday to respond to an emergency request for an injunction by the Bucks County parents.

And in the case against Tredyffrin/Easttown, both sides are awaiting a judge’s ruling on whether the plaintiffs can introduce testimony from a woman who identified herself as a physiologist and spoke at a Downingtown school board meeting with a CO2 detector under her face mask to argue that masks were dangerous.

The district’s lawyers have called the demonstration “absurd” and “junk science,” saying the detector is meant to assess HVAC systems and “not designed to be placed next to the human face.”

Predicting that the state’s authority under the disease control law would be upheld, Burris said opponents of the mandate might have to seek outside the courts.

“The legislature may step in and be more like Florida,” Burris said. “But at the moment, it’s still the law.”

Staff writer Jeremy Roebuck contributed to this article.