Dear Hornet Family:
On August 31, 2021, the Acting Secretary of Health of Pennsylvania issued a masking order for all public schools in Pennsylvania. Supporting her was Governor Wolfe and Secretary of Education Noe Ortega. All school entities must comply with and enforce the Order.
Superintendents are employees of the Commonwealth of Pennsylvania and before taking office must be sworn in by the Judge of the Court of Common Pleas. In that oath, I swore to uphold the laws of the state of Pennsylvania. Additionally, board members must also take an oath to uphold the laws of the Commonwealth.
Below are excerpts from a redacted letter sent to a school district that “is flagrantly violating and does not intend to comply with the Order”.
- Failure to implement and follow the control measures under the Order subjects a person, which includes you as a member of the governing board, to the penalty provisions of the Disease Prevention and Control Law of 1955. A violation occurs each day there is a violation and may be charged for each student or staff member attending the school. Further, failing to implement or follow the control measures may also expose you to personal liability under 42 Pa.C.S. §8550 (relating to willful misconduct), as well as other remedies and actions as provided by law. Please be aware that this letter serves as official notice to you that failure to comply with the mask order is a violation of law and imparts knowledge of both the applicable law and your organization’s noncompliance. A knowing violation may be used by a plaintiff to establish personal liability in a negligence action per 42 Pa.C.S. § 8550. As such, by failing to adhere to the order, you may personally face lawsuits from those who may be affected by noncompliance with the Order, including children who may become ill as a result of the district’s violation, or disabled children who are unable to attend school because of the district’s failure to follow the order. In such a situation, you could face suit and potential liability with no indemnification or protection. In this regard, the administration is aware that some districts’ liability insurers have explored cancelling coverage as a result of those districts’ possible illegal conduct and potential purposeful violations of law. Further, school districts’ violations of law may negatively affect workers’ compensation claims coverage and premium calculations.
- We strongly suggest that officials inquire with their personal insurance professionals regarding the extent that personal insurance (homeowners, etc.) may or may not offer protection in the event that you are sued in your personal capacity.
- In addition, districts that do not comply with or affirmatively elect to violate the law may be referred to the United States Department of Education’s Office for Civil Rights for investigation. In particular, failure to comply with the Order may prevent immunocompromised and other susceptible students from attending class in violation of the IDEA, ADA, and Rehabilitation Act.
- Finally, PDE has received inquiries regarding how superintendents, principals, and teachers should address school boards who direct them to violate the law. Please note that such individuals who report that district officials have instructed them to act in violation of law may be entitled to protection under the state whistleblower law.
In addition, the following was issued by the Acting Deputy Secretary of Education, Dr. Sherri Smith:
- This Order is not a mask optional policy. Any school entity simply permitting a parent’s sign-off without evidence that the student has a medical or mental health condition or disability that precludes the wearing of a face covering is not in compliance with the Order. Under the Order, and as set forth in PDE’s Answers to FAQs, school entities must require all individuals, two years of age and older, to wear face coverings unless the individual has a medical or mental health condition or disability that precludes the wearing of a face covering. In accordance with Section 3 of the Order, before an individual is excepted from the Order, all alternatives to a face covering, including a face shield, are to be exhausted. It is recommended that any exception be in accordance with eligibility under Section 504 of the Rehabilitation Act or IDEA for such medical or mental health condition or disability. School entities should follow their established processes for determining student eligibility under those laws, including any medical documentation that they would normally require. There are exceptions to the Order; however, a parent’s opposition to the Order is not one of them.
We are very excited to be in school with our students! Students have been respectful and happy to be back in school with their friends learning together. However, we have been thrown into a controversy and we must obey the Masking Order.
I am asking each of you to please consider the difficult position in which the District finds itself and help us to work together to keep our students in school with their teachers and their friends. It is heartbreaking to be pitted against members of our valued communities. We are at our best when we are working together to provide a safe, caring, and healthy environment for every child who enters our doors. Thank you for being respectful and valuing the safety of everyone.
Dr. Brenda M. Freeman