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Pa.’s school mask mandate struck down by court, but Health Department has appealed

The decision noted the judges had “no opinion regarding the science or efficacy of mask-wearing or the politics underlying the considerable controversy the subject continues to engender.”

Kindergarteners wait to start their first day of school at Powel SLAMS in Philadelphia on Aug. 31.
Kindergarteners wait to start their first day of school at Powel SLAMS in Philadelphia on Aug. 31.Read moreALEJANDRO A. ALVAREZ / Staff Photographer

Pennsylvania’s Commonwealth Court has struck down the state’s school mask mandate, ruling that acting Health Secretary Alison Beam didn’t have the authority to issue the requirement under the state’s Disease Control and Prevention Law.

Gov. Tom Wolf’s administration immediately appealed Wednesday’s decision, which meant the mask order stays in place for now. But the court opinion sided with Republican Senate President Pro Tempore Jake Corman and other parents who had argued that Beam needed to follow a formal process to create a new regulation rather than simply imposing the requirement.

“In the absence of a declared emergency, and where such orders are not otherwise authorized by statute or regulation, the Governor and the executive agencies of the Commonwealth must follow the prescribed procedures for rulemaking,” Judge Christine Fizzano Cannon said in the court’s opinion.

She noted the judges had “no opinion regarding the science or efficacy of mask-wearing or the politics underlying the considerable controversy the subject continues to engender.”

While the court declared the mandate void, the Health Department’s appeal blocks the immediate implementation of the decision, court officials said.

Still, schools were interpreting the decision differently Wednesday. “We were advised a short time ago that the Commonwealth Court has voided the Masking Order. Effective immediately, we will return to ‘mask optional’ in our school buildings,” Bill Harner, superintendent of the Quakertown Community School District, said in a message to families within hours of the court’s decision.

» READ MORE: Council Rock has granted mask exemptions to 20% of its students. Cheltenham hasn’t had any. How the mask fight continues to play out in Pa.

In the Upper Dublin School District, Superintendent Steve Yanni said there would be no immediate changes because of the pending appeal. But even if the Wolf administration wasn’t contesting the decision, he said his district’s health and safety plan would still require masking because its community transmission levels of COVID-19 are high.

The five Commonwealth Court judges who heard the case were three Republicans and two Democrats. One of the Democrats, Michael Wojcik, dissented, saying Beam had followed guidance from the CDC and American Academy of Pediatrics and adopted the least restrictive measure to protect vulnerable students. He also said mask requirements constituted an “isolation” or “segregation” measure specifically authorized by state regulations.

At the same time, the court dismissed a second challenge to the mask mandate as moot. The plaintiffs in that case — including parents who claimed requiring masking was forcing them to “participate in a satanic ritual” — petitioned the court to reconsider Wednesday, saying their religious freedom claims and argument that Beam had illegally supplanted the role of county health departments “will be forever lost” otherwise.

In a statement, Corman and Senate Majority Leader Kim Ward (R., Westmoreland) praised the court for “empowering parents to be part of health and safety decisions for their kids.”

“Mask decisions should be made by parents and school boards, not unelected bureaucrats,” they said.

Nationally, mask mandates have been a source of litigation, with some states facing lawsuits for barring local school districts from imposing mask requirements. The Arizona Supreme Court earlier this month affirmed a decision striking down a state ban on school mask mandates, which Republican lawmakers had included in the state budget along with a ban on teaching critical race theory. Florida has maintained a ban on school mask mandates.

Other states have required masks in schools — including neighboring New Jersey and Delaware, where Gov. John Carney on Wednesday extended the state’s mandate through Feb. 8.

The Pennsylvania court’s decision came two days after Wolf announced that he planned to lift the mask mandate for K-12 schools Jan. 17, calling it “time to prepare for a transition back to a more normal setting.”

Speaking at an event in Berks County on Wednesday morning before the court’s ruling, Wolf tied the plan to the availability of vaccines for children ages 5 to 11.

“We put the mask mandate in because when schools started, kids 5 to 11 were not able to get the vaccine,” he said — referring to Beam’s issuing her order Aug. 31, as cases driven by the delta variant surged, and administration officials said too few school districts had decided to impose their own mandates.

Beam said Tuesday the January end doesn’t mean the administration is telling districts to lift their own masking requirements but was returning the decision to the local level.

“They know the CDC’s [recommendation] still stands with saying that if you want to retain in-person instruction, keep the masks on,” she said in an interview with The Inquirer.

School officials like Yanni are waiting to see what local health officials advise — noting current guidelines that say kids in close contact with a classmate who tests positive for COVID-19 don’t have to quarantine if students are masked. “The reality is if we remove masks and have to quarantine more people, that becomes a big issue,” he said.

Staff writers Erin McCarthy and Justine McDaniel contributed to this article.