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Ongoing Masking Litigation

Ongoing Masking Litigation
Posted on 11/17/2021
ongoing-masking-litigationDear School Community, 

Late yesterday afternoon, the Commonwealth Court filed an opinion that lifted the stay that was in place on the mask mandate for K-12 schools effective December 4, 2021. However, our solicitor is advising us that this ruling is unlikely to be the final legal development in the case. The current ruling has no immediate impact on the district because the stay is in effect until December 4th; therefore, masks continue to be required inside all district buildings.

Based on the fluid nature of the legal wrangling on this issue, another stay going into effect is a distinct possibility. The Acting Secretary of Health has already filed an appeal of the underlying case and is able to petition the Pennsylvania Supreme Court to request a reinstatement of the stay. If yesterday’s ruling stands and there is not a reinstatement of the stay, the mandate of the Acting Secretary of Health is no longer valid; however, the Pennsylvania Department of Health is the entity that will continue to provide health guidance to the District. In regard to masking, the District’s Health and Safety Plan (to access it, click here) will be the operative governing document on the masking issue.

Along with the health plan, there are other considerations to highlight:

As of today, Delaware County stands at a high level of transmission at 109.22 cases per 100K. The district health plan stipulates that a masking change will be considered when transmission rates are at moderate or low.

The CDC transmission rates are determined as follows: "Low" is no more than 10 cases per 100K; Moderate is 10 to 50 cases; Substantial is 50 to 100 cases; and High is 100 per 100K.

Even if the mask order is removed, the district by law must follow contact tracing and exclusion of school due to potential covid exposure.

The test-to-stay program requires that qualifying individuals must be masked for the duration of the period that they are in the program.

The district is hosting a vaccination clinic on November 18th and 467 students are already registered. They would receive their second doses on December 9th.

Delaware County will enact its Health Department as early as January. When the certification takes place the Delaware County Health Department would have jurisdiction over most health-related topics in Delaware County and could establish policies or recommendations.

Some have questioned the authority of the School Board and District to require masking via its health plan. The litigation around the Acting Secretary’s mask mandate was specifically limited to whether or not she had the Authority and then followed the appropriate procedures to enact that mandate. The authority of a local health department to enact a mask mandate has not been litigated nor has the authority of the district to enact a health and safety plan. However it is the opinion of our legal counsel that the Pennsylvania Departments of Education and Health are the governing entities for education and health issues and they have provided the authority and requirement to enact a Health and Safety Plan. Only actual litigation on these specific topics will yield a direct answer to those questions.

As always, thank you for your support and cooperation on this ever changing issue. I realize how polarizing this topic has become, and we will continue to provide as much information as possible to keep our community informed. 



Dr. Marc Bertrando, Superintendent
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