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Updated Thursday, Aug. 26
HARRISBURG — Gov. Tom Wolf this week called on the Republican-led legislature to return to the Capitol immediately to pass legislation mandating the use of masks in K-12 classrooms and child-care centers throughout Pennsylvania.
In a letter to legislative leaders in both chambers, the Democratic governor struck a note of urgency, noting that many public schools have already returned to the classroom — most without mask requirements — and that parents, teachers, pediatricians, and others who have contacted his administration overwhelmingly support a statewide mandate.
Just 59 school districts out of the 474 that submitted health and safety plans to the Department of Education had implemented mandatory masking policies as of the end of July, Wolf said in the letter to Senate President Pro Tempore Jake Corman (R., Centre) and House Speaker Bryan Cutler (R., Lancaster).
“For most of the past 18 months, the legislature has asked for my administration to defer to local governments and local organizations when making mitigation decisions,” Wolf wrote. “It is clear that action is needed to ensure children are safe as they return to the classroom.”
He added: “With school having already started in many areas of the state, the time to act is now.”
In a letter of their own sent Thursday, Corman and Cutler rejected Wolf’s call, stating that many communities have already made decisions about how to handle local conditions.
”One of the most effective ways we can all mitigate COVID-19 is to continue to urge those who can get vaccinated to do so in the interest of their own health, and the health of their neighbors and community members,” the letter said. “The rise in new cases within the state and across the country is a clear reminder that we must always be vigilant. However, the impact is not equal everywhere.”
Jason Gottesman, spokesperson for House Republicans, previously told Spotlight PA in an interview that the chamber has no plans to return before it is scheduled to in September, and reiterated the belief that masking decisions should be made at the local level.
“We’ve been for local decision-making since the beginning of the pandemic,” said Gottesman, who also noted that Pennsylvanians earlier this year voted to curtail Wolf’s emergency powers, which was framed at the time as a referendum on the governor’s handling of the coronavirus pandemic.
The Wolf administration, without the legislature, implemented a mask mandate for schools with limited exemptions last year. And despite the referendum that limited Wolf’s emergency powers and led to the end of the state’s disaster declaration, officials have been adamant they still have the power to issue public health orders including a mask mandate.
But as recently as three weeks ago, Wolf told reporters his administration would not do so, despite a recommendation from the Centers for Disease Control and Prevention that all students and staff wear masks regardless of vaccination status.
“I think the school districts in Pennsylvania have to decide what they want to do,” Wolf said at a news conference in Philadelphia. “I think the CDC guidelines strongly recommend that schools do that. They’re not mandating it and neither am I.”
The president of the state’s largest teachers’ union on Wednesday backed Wolf’s call to state legislators.
“In the meantime, we continue to urge school district leaders to follow CDC guidance and adopt universal masking policies as students return to school,” said Rich Askey, a Harrisburg music teacher and president of the Pennsylvania State Education Association.
But without a statewide order or new legislation, there’s concern among some local districts that they do not have the authority to implement mask mandates.
“Our school district solicitor has advised us of his belief that there is no enabling legislation for the school board or for me to order mandatory masking without an order from the Pennsylvania secretary of health or legislation enacted by the Pennsylvania legislature and governor,” Superintendent Brian White, of the Butler Area School District, told families in an Aug. 17 letter.
The law firm serving as the district’s solicitor did not respond to a request for comment.
Sen. Scott Martin (R., Lancaster), chair of the chamber’s Education Committee, also recently questioned how local mandates are enforceable without “constitutional or statutorial clarity.”
“Quite frankly are they opening themselves up to potential litigation?” he asked administration officials during a hearing.
It’s possible parents and organizations opposed to mandatory masking could bring potentially costly lawsuits, as some have already threatened to. But legal experts who spoke to Spotlight PA agreed that school districts are empowered to implement their own mandates.
“What they may be saying is that they don’t have the political authority to do it, that the pushback from the powers that be in the community or in Harrisburg … makes them feel that they can’t get away with it,” Scott Burris, director of the Center for Public Health Law Research at Temple Law, said of school districts.
“But they have the legal authority to do it for sure.”
That’s also the position of Education Secretary Noe Ortega, who said Monday that a mask mandate is no different than what school boards have done historically “to keep the schools healthy and safe.”
York Suburban School District in central Pennsylvania is forging ahead with a mask mandate, despite being “put on notice that we should expect legal challenges.”
“We know that this decision was met with both dismay and gratitude, but it was made lawfully,” the district wrote in an Aug. 16 letter to families, citing a section of state law that gives school boards the authority to set rules and regulations that apply to students.
The district plans to enforce masking the same way a dress code violation would be handled, said Nicholas Staab, a district spokesperson.
“It kind of trivializes the mask requirement, because nobody is going to get sick and die because they have a tank top on, and school dress codes are kind of easy to make fun of,” Burris of Temple University said. “But it ultimately is kind of the same thing.”
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