The Wolf administration and many local officials agree that facemasks should be worn in Allegheny County classrooms. But despite calls from parents, educators and medical providers, nearly a third of the county's school districts have no policy around masking.
Regarding the county, legal experts with whom WESA spoke speculated that municipalities may lack such jurisdiction over school boards for a variety of reasons. But on Wednesday, Allegheny County Executive Rich Fitzgerald said the health department does in fact have the authority to create public health mandates for K-12 schools.
Fitzgerald did not explain why the county, through its health department, has yet to mandate masking for K-12 schools, though he has been imploring school boards to do so for weeks. He did note that 30 of the 59 school districts in Pennsylvania that require masking are located within Allegheny County.
In the past, the head of the county’s health department has said K-12 COVID-19 oversight comes from the state. Last fall, when a surge in cases prompted calls to move all learning online, Dr. Debra Bogen said her staff was advising local districts, but“We don’t make decisions.”
Gov. Tom Wolf’s administration previously has said he’d leave questions on masking to school districts. But on Wednesday, Wolf asked the Republican-controlled state legislature to return to Harrisburg and to pass legislation that mandates face masks for students and staff at K-12 schools.
“My administration has seen an outpouring of calls from parents, teachers, pediatricians and others urging action to mandate masking in K-12 classrooms due to the inaction of many school districts,” Wolf said in a letter to lawmakers.
Earlier in the pandemic, the governor issued many public health orders, some of which resulted in court battles. Anything passed by the state legislature would likely be more resilient to lawsuits and also provide the governor political cover for what would be an extremely unpopular policy in some pockets of the state.
Because the legislative process is lengthy, many health care providers, parents and others are looking to municipal governments to create policies that would limit the spread of COVID in classrooms. This includes an open letter penned by six prominent western Pennsylvania doctors in late July, calling on Bogen to order K-12 schools in the county to comply with COVID mitigation guidance from the Centers for Disease Control and Prevention.
“Until all members of our community have had the opportunity to be vaccinated, we believe we owe our children at least the above efforts to keep them and their family members safe,” the letter states.
The letter now has nearly 750 signatures, including more than 80 pediatricians.
While Fitzgerald says the county has such authority over school districts, some legal experts are not so sure. This includes Ira Weiss, a solicitor for a number of western Pennsylvania school boards, such as Pittsburgh Public Schools.
For one thing, Weiss noted that “the county has no power of the purse over the school districts.” That’s because a district requires no approval from a city or county government to levy taxes. Schools do receive funding from the state, and they must comply with oversight from the Pennsylvania Department of Education.
Still, attorney Matt Battersby said a school board is “not completely a kingdom unto their own.” Battersby, who has practiced municipal law for 40 years, said courts have ruled that local governments hold some jurisdiction over schools when in regard to zoning and land use. But ultimately, he said, regulation from the state Department of Health is “vague” when it comes to local dominion around public health.
“In all fairness to everybody, this is uncharted territory. COVID-19 caught everyone unaware," said Battersby. "The law usually is behind the curve, not ahead of it."
