View

Back to School, Back to Masks?

Article by Kerven Moon, Esq. and Kiley Verbanac, Law Clerk

While the seasons have changed and the weather has gotten warmer, one thing has remained constant over the last three years, COVID-19. Three years have passed since the start of the COVID-19 pandemic, yet the debate over masking still remains among many colleagues, friends, and co-parents. There has been much back and forth regarding who has authority to make decisions regarding masking, particularly within school districts. At first, individual school districts had the discretion of whether to require masks, but then the Pennsylvania Department of Health superseded this discretion on August 31, 2021 when they issued a mandate requiring masks for all students, staff, and faculty. This mandate marked the beginning of a back-and-forth legal battle between the judicial and executive branches, culminating with the Pennsylvania Supreme Court settling the debate once and for all.

On December 10, 2021, the Pennsylvania Supreme Court ruled that the Pennsylvania Department of Health did not have the authority to issue a mask mandate for schools. Despite the thoroughness of the 58-page opinion issued by the justices, one crucial question remains: can school districts choose to enact their own mask mandate? The void created an opportunity for a new back-and-forth legal battle set to play out on the federal stage, this time between parents and districts.

Following the Court’s decision to revoke the Department of Health’s authority to mandate masks when no emergency declaration is in place, school districts across the state began lifting their mandates. This created further litigation with dissatisfied parents filing lawsuits in the federal court system arguing that lifting the mandates violates the Americans with Disabilities Act (“ADA”) by disproportionately affecting immunocompromised students.

In what legal scholars are coining “the Western vs. Eastern District Split,” the federal courts’ rulings are far from uniform. In the Eastern District of Pennsylvania, a federal judge sided with the parents by granting an injunction to block Perkiomen Valley School District from lifting its mask mandate. Similarly, on the other side of the state, in the Western District of Pennsylvania, a federal judge issued an injunction to stop North Allegheny School District from lifting its mask mandate. Yet, also in the Western District, another federal judge reached the opposite conclusion denying the parents’ request to grant an injunction and allowing Upper Saint Clair to lift its mask mandate. Guidance from federal appellate courts is desperately needed to provide a more stable ruling, but in the meantime, school districts’ ability to control masking in Pennsylvania remains dependent upon their location within the state and which judge is assigned to the case.

No matter what federal district you reside in, one thing is for sure: the battle to mask or not to mask will continue to be a popular debate topic at the dinner table causing disagreements among family units. Even with vaccinations becoming more common, COVID-19 remains persistent with infection rates varying by the week. During the surges in infection rates, many school districts face the decision of whether to require their students and staff to wear masks. With many parents, just trying to do what is best for their child; whether a school requires masks can be an essential factor in deciding where, when, and if to send their children to in-person school or allow them to participate in extracurricular activities. If the management of COVID-19 risks is becoming an issue within your family, the Burns White Family Law team has the skillset to help you navigate the process.