LEHMAN TWP. — While the Lake-Lehman School Board meeting Monday was largely uneventful, the public comment stretch included Superintendent Jim McGovern reading a lengthy statement signed by Jamie Walsh who, while praising the district for its response to the COVID-19 pandemic, had some harsh rebuke for the state Department of Health’s school mask mandate.
Walsh provided the board with a 17-page document challenging the mandate legality prepared by an attorney.
“I personally hired an attorney, Eric Winter, he is an expert on the topic,” Walsh wrote. “He is helping me through the process of understanding the legalities of this current order from the department of health.”
Walsh called the mask mandate “unconstitutional” based on Winter’s “Considerations for School board Members about the Pennsylvania Department of Health School Masking Order.” McGovern provided a copy of the document to the Times Leader. Winter is an attorney with Prince Law offices in Bechtelsville.
Highlights of Winter’s arguments:
• The state Constitution and School Code give “broad powers to school districts in terms of how to operate the schools,” and “there is nothing in the school code indicating that the authority of the Department of Health supersedes the authority of a school district.”
• The section of the Disease Prevention and Control Law cited by the department of health as the legal basis to issue the mandate does not grant authority for a state-wide mandate. “Regulations that implement this provision make it clear that while the Department of Health may issue isolation or quarantine orders of sick individuals, this does not apply to all individuals regardless of their infected status.”
• The order is illegal because it is open ended. “The Department of Health only has authority over schools, businesses or households where there has been an outbreak. There is no authority over non-infected people. Even where there has been a viral outbreak, that control measure must be limited and for an appropriately short duration. This current order could theoretically last forever and covers hundreds of thousands of children who have not been exposed to the virus.”
• The order infringes several on U.S. and state Constitutional rights. “There are several constitutional rights implicated by the masking mandate — liberty, freedom of speech, freedom of assembly, freedom of movement, freedom of religion. The United States Supreme Court has held that those rights can be restricted, but can only be restricted as to time place and manner.
• The order makes “no distinction between completely different areas.” Sparsely-populated counties have much lower risk of transmission than dens cities like Philadelphia, yet “under the current order, rural areas would be subject to the same restrictions as the large cities until the large cities get their virus cases under control. … Government classifications cannot be arbitrary and must be rational.
• Despite threats there are no consequences for defying such an order. The enforcement mechanism allowed by law is a summary citation “equally as serious as a traffic ticket,” and Winter noted he has tried such citations and “I am not aware of anyone being found guilty.”
• The threat that the school board or district officials could face individual liability for not complying with the mandate “is nonsense.” While there are certain cases where a district or school board member can lose “sovereign immunity,” this is not one of them. “I have been unable to find any situation in which a school board member was ever held liable for a policy decision. Policy decisions fall squarely within sovereign immunity.”
• Similarly, Winter called the threat that administrators might lose their job or licenses “nonsense.” the law spells out the reasons a superintendents and teachers can lose their jobs or certifications, and failure to comply with the mandate is not one of them. “Administrators work for the school board. Administrators need to follow the instructions of the school board. There is not a real danger of professional consequences to administrators.”