PHILADELPHIA PITTSBURGH
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Philadelphia, PA 19103 Pittsburgh, PA 15219
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Ensuring that all of Pennsylvania’s children have equal access to a quality public education.
August 30, 2021
The Honorable Tom Wolf
Governor of Pennsylvania
225 Main Capitol Building
Harrisburg, PA 17120
Dr. Noe Ortega
Secretary, Pennsylvania Department of Education
333 Market Street
Harrisburg, PA 17126
Alison Beam
Acting Secretary of Health
Pennsylvania Department of Health
625 Forster St.
Harrisburg, PA 17120
RE: Need for State Guidance Mandating Universal Masks in Schools to Support Safe In-
Person Learning and Address Widening Educational Inequities
Dear Governor Wolf, Secretary Ortega, and Acting Secretary Beam:
On behalf of the undersigned organizations, we write to thank you for your efforts to ensure that
Pennsylvania’s schoolchildren can return to school in safe learning environments this Fall. We
applaud Governor Wolf’s recent letter calling on the General Assembly to pass legislation
mandating the use of masks in K-12 classrooms and child-care centers throughout Pennsylvania.
1
We also appreciate the public health initiatives of the Pennsylvania Department of Education and
the Pennsylvania Department of Health to provide free, weekly COVID-19 testing in schools and to
offer COVID-19 vaccine clinics to serve the needs of school staff, students, and families.
2
We
appreciate these efforts and that you have advised K-12 school entities to follow current Centers for
Disease Control and Prevention (CDC) guidance “to the greatest extent possible” when creating and
implementing mitigation policies and practices.
3
1
See Letter from Governor Wolf to President Pro Tempore Jake Corman and Speaker Brian Cutler (August 25, 2021)
available at https://www.spotlightpa.org/news/2021/08/pa-school-mask-mandate-tom-wolf-republican-lawmakers/
.
2
Wolf Administration Directs Vaccine Providers To Support COVID-19 Vaccination Clinics And Unveils Free COVID-
19 Testing Program For Schools Across Pennsylvania, Aug. 16, 2021, available at
https://www.media.pa.gov/pages/health-details.aspx?newsid=1558
.
3
Wolf Administration Welcomes Pennsylvania Students Back To School, Aug. 23, 2021, available at
https://www.media.pa.gov/Pages/Education-Details.aspx?newsid=1182
and CDC Guidance for COVID-19 Prevention
in K-12 Schools, last updated Aug. 13, 2021, available at
https://www.education.pa.gov/Schools/safeschools/emergencyplanning/COVID-
19/SchoolReopeningGuidance/ReopeningPreKto12/CDCGuidanceInformation/Pages/default.aspx.
Ensuring that all of Pennsylvania’s children have equal access to a quality public education.
However, we write to urge you to take further action to issue a clear directive to mandate masking
for students and school staff in all local educational agencies in Pennsylvania, with appropriate
exceptions for students and school staff with qualifying disabilities.
Masks have been proven to be very effective at reducing the spread of COVID-19 in general,
4
and
in schools in particular
5
and the need for masking is well established. We believe that issuing an
explicit directive requiring schools to mandate masks is essential to ensuring the health and safety
of all our students, teachers, parents, school staff and communities. Such a directive is also vital to
ensuring that widening disparities in educational opportunity suffered by Black and Brown students,
students living in poverty, multilingual learners, and students with disabilities are not further
exacerbated. Pennsylvania currently ranks second in the nation with regard to racial disparities in
equitable access to full-time in-person learning. In the absence of new policies and targeted
interventions, Pennsylvania’s Black and Brown students will continue to suffer extraordinary harm
and fall even further behind white peers.
Mandatory Universal Masking is Needed to Protect the Health of Children and School Staff
COVID-19 is a clear threat to the public’s health, for which Pennsylvania’s Secretary of Health may
order control measures, including a mask mandate that can be fully implemented and enforced by
the Governor and the Department of Education. Specifically, the Secretary of Health possesses
emergency authority to undertake any disease control measure appropriate to protect the public
from the spread of infectious disease.
6
It is pursuant to this authority that the Secretary issued its
previous orders requiring universal face coverings.
7
On July 27, 2021, the CDC released updated guidance outlining the urgent need to increase
measures to protect against the spread of COVID-19 in response to an alarming rise in COVID
cases and hospitalization rates around the country. This directive included a specific
recommendation that everyone in areas of substantial or high transmission wear a mask in public
indoor places, even if they are fully vaccinated. We know that the Delta variant is more than twice
as contagious as previous variants and the greatest risk of transmission is among unvaccinated
individuals – including children -- who are far more likely to contract, and therefore transmit the
virus. The CDC therefore concluded that “[g]iven what we know about the Delta variant, vaccine
4
“Experimental and epidemiological data support community masking to reduce the spread of SARS-CoV-2.” CDC,
Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2, May 7, 2021,
https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-cov2.html
5
See, e.g., The ABC’s of North Carolina’s Plan A, Final Report, The ABC Science Collaborative and Duke Clinical
Research Institute, Jun. 30, 2021, (finding that NC schools were highly successful in preventing transmission of
COVID-19 within school buildings by requiring masks and minimal physical distancing), available at
https://abcsciencecollaborative.org/wp-content/uploads/2021/06/ABCs-Final-Report-June-2021.06-esig-DB-KZ-6-29-
21.pdf
6
Disease Prevention and Control Law, 35 P.S. § 521.5; 71 P.S. §§ 532(a), and 1403(a); 28 Pa. Code § 27.60. See also
71 P.S. §§ 532(a), and 536; and Department of Health’s regulations at 28 Pa. Code §§ 27.60-27.68.
7
See e.g., Updated Order of the Secretary of the Pennsylvania Department of Health Requiring Universal Face
Coverings, November 18, 2020 available at
https://www.health.pa.gov/topics/Documents/Diseases%20and%20Conditions/Updated%20Order%20of%20the%20Se
cretary%20Requiring%20Universal%20Face%20Coverings.pdf.
Ensuring that all of Pennsylvania’s children have equal access to a quality public education.
effectiveness, and current vaccine coverage, layered prevention strategies, such as wearing masks,
are needed to reduce the transmission of this variant.”
8
As a fourth wave of the coronavirus surges,
polls show that Americans overwhelmingly support protecting the common good by mandating that
individuals wear protective masks as "a matter of health and safety" in schools.
9
Legal Basis to Undertake Action
Against this backdrop, the Education Law Center has received multiple calls and inquiries from
parents and community members across the state who are seeking to challenge policy decisions of
their school boards and districts which have refused to establish universal mask requirements. In
some cases, districts have also refused to require COVID-19 testing or quarantining in the event that
students or staff test positive for COVID-19. Examples of such districts include: Avon Grove
School District, Apollo Ridge SD, Delaware Valley SD, Erie City SD, Millcreek Township SD,
Northern Bedford County SD, Northern York County SD, Penn Manor SD, Scranton SD, Souderton
Area SD, Tamaqua Area School District, Wallenpaupack SD, Wilson Area School District.
Notably, in one case, a federal court recently granted a restraining order against North Allegheny
School District and ordered the District to reinstate a mandatory mask policy based in part on a
finding of irreparable harm to the school staff, students, and visitors.
10
We urge that the Department address the concerns raised by parents regarding the health, safety,
and welfare of their children by issuing a clear directive that schools must require masks and
address potential infections among school community members. The failure to require universal
masking not only fails to qualify as a reasonable measure to ensure the health and safety of students
but affirmatively places schoolchildren and school staff at significant risk of foreseeable, direct and
substantial harm of infection by a known highly contagious and potentially deadly virus.
11
Policies which make masks optional or fail to address COVID-19 outbreaks also disproportionately
impact students with disabilities in violation of federal disability laws, including Title II of the
Americans with Disabilities Act, 42 USC §12132; Section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794; and the Individuals with Disabilities Education Act, 20 U.S. Code §
8
Id.
9
See e.g., School mask, vaccine mandates supported in US: AP-NORC poll (6 in 10 Americans say students and
teachers should be required to wear face masks while in school, according to poll from The Associated Press-NORC
Center for Public Affairs Research) (August 23, 2021) available at
https://apnews.com/article/lifestyle-health-education-
coronavirus-pandemic-only-on-ap-0440d83602da918c571d506a3de9f44b; No vaccination? Americans back tough rules
and mask mandates to protect the common good (August 22, 2021) (An overwhelming 72% v. 28% of those surveyed
by USA TODAY and Ipsos called mask mandates "a matter of health and safety") available at
https://www.usatoday.com/story/news/nation/2021/08/22/americans-back-mask-covid-vaccine-mandate-protect-
common-good/8134392002/.
10
U.S. judge to North Allegheny School District: Everyone has to wear a mask, Pittsburgh Post Gazette (April 23,
2021), https://www.post-gazette.com/news/education/2021/08/23/North-Allegheny-School-District-na-mask-mandate-
requirement-parents-students-restraining-order/stories/202108230063
11
While as a general rule, school entities are shielded from liability under the Pennsylvania Political Subdivision Tort
Claims Act, 42 Pa. C.S. § 8541, there are exceptions to the doctrine of qualified immunity, including claims of a “state
created danger” whereby “the harm ultimately caused was foreseeable and fairly direct; a state actor acted with a degree
of culpability that shocks the conscience; the plaintiff was a foreseeable victim or a “member of a discrete class of
persons subjected to the potential harm brought about by the state’s actions”; and a state actor affirmatively used their
authority in a way that created a danger to the citizen or rendered the citizen more vulnerable to danger.
Ensuring that all of Pennsylvania’s children have equal access to a quality public education.
1400 et seq. Children with disabilities are often more susceptible to infection and at higher risk for
severe illness and therefore may not be able to attend public school in the absence of a mask
mandate. Accordingly, optional masking policies operate to exclude students with disabilities from
participating in public education, fail to make services, programs, and activities “readily accessible”
to students with disabilities, and have the effect of subjecting qualified individuals with disabilities
to discrimination on the basis of disability.
12
Importantly, pursuant to disability laws, including the
Americans with Disabilities Act and Section 504, universal mask requirements must be subject to
modification on a case-by-case basis as needed to accommodate students and school staff with
qualifying disabilities.
13
State Guidance Requiring Universal Masks Will Support Learning and Reduce Disparities
It is well documented that students benefit far more from in-person learning and therefore safely
returning to in-person instruction in the fall of 2021 must be a priority. Studies show that while in
school, students can concentrate better as there are fewer distractions and fewer opportunities to
leave the class.
In-person schooling results in more teacher to student time, helps students develop
deeper understandings of the material, and gives teachers the tools and information they need to
help their students. As a result, student completion rates of teacher-led classes are almost 5 times
higher than online learning and students are less likely to disengage from school.
14
Teachers in two
separate surveys also estimated that only about 60% of their students were regularly participating or
engaging in distance learning
15
while two-thirds to three-quarters of teachers said their students
were less engaged during remote instruction than before the pandemic, and that engagement
declined even further over the course of the semester.
16
Universal masking in schools is an important component of supporting such in-person learning,
particularly as children under 12 cannot receive the vaccine, and masks now have a track record of
effectiveness. A recent study conducted by Duke University analyzing data from 100 school
districts and 14 charter schools in North Carolina from March through June 2021 (involving over
864,500 students and 160,549 staff) disclosed that wearing masks is the most effective mitigation
strategy to prevent in-school COVID-19 transmission.
17
Due to the circulating and highly
contagious Delta variant, the CDC expressly recommends universal indoor masking by all
12
See 42 U.S.C. § 12132; 28 C.F.R. § 35.130; 34 C.F.R. § 104.34(a); 28 C.F.R. § 35.150 and 34 C.F.R. § 104.34(a).
13
See e.g., 34 CFR §§ Part 104.
14
See The Virtual Divide: Online vs. In-Person Learning in Fall 2020 available at
https://students4sc.org/2020/09/23/the-virtual-divide-online-vs-in-person-learning-in-fall-2020/
. In contrast, a 2019
study of cyber charter schools in Pennsylvania revealed that the average student at a cyber charter in Pennsylvania lost
106 days of learning in reading and 118 days in math compared to their traditional school counterpart. See Charter
School Performance in Pennsylvania, Center for Research on Education Outcomes at Stanford University (2019)
available at
https://credo.stanford.edu/sites/g/files/sbiybj6481/f/2019_pa_state_report_final_06052019.pdf.
15
Kraft, Matthew A. & Nicole S. Simon, Teachers’ Experiences Working from Home During the COVID-19 Pandemic,
Upbeat (Summer 2020),
https://f.hubspotusercontent20.net/hubfs/2914128/Upbeat%20Memo_Teaching_From_Home_Survey_June_24_2020.p
df
16
Voices from the Virtual Classroom: A Survey of America’s Teachers on COVID-19 Related Education Issues,
Educators for Excellence (2020), https://e4e.org/sites/default/files/voices_from_the_virtual_classroom_2020.pdf
17
The ABC’s of North Carolina’s Plan A, Final Report, The ABC Science Collaborative and Duke Clinical Research
Institute, Jun. 30, 2021,
https://abcsciencecollaborative.org/wp-content/uploads/2021/06/ABCs-Final-Report-June-
2021.06-esig-DB-KZ-6-29-21.pdf
Ensuring that all of Pennsylvania’s children have equal access to a quality public education.
students (age 2 and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination
status.
18
It is also well documented that COVID-19 has significantly deepened educational inequities across
the Commonwealth and across the country, and without mask mandates to ensure safe in-person
learning these negative impacts will continue to be borne disproportionately by students living in
poverty, students of color, and students with disabilities.
Early studies show that educational gaps—in access, opportunities, achievement, and outcomes—
widened greatly during the pandemic and students who are most underserved, particularly Black
and Brown students, multilingual learners, and students with disabilities have suffered the most
significant harm due to lack of access to in-person learning. In particular, in September 2020, 72%
of Black students and 61% of Hispanic students attended all-virtual school compared to 24% of
their white counterparts. By June of 2021, Pennsylvania ranked second highest in the nation for
racial disparity as the proportion of white students with access to full time in-person learning was
21.5 percentage points greater than the proportion of non-white students for the entire 2020-2021
school year.
19
Children living in poverty are less likely to access remote learning during school closures due to
lack of high-speed internet at home, language barriers, and the absence of instructional support and
access to educational opportunities that wealthier parents can provide. School closures also increase
food insecurity, undermine social emotional learning, and create new needs for mental health
supports.
20
During the pandemic, children living in the poorest 20% of U.S. neighborhoods were
most negatively impacted and more likely to suffer long-lasting effects of school closures. One
study estimates that one year of school closures will cost ninth graders in the poorest communities a
25% decrease in their post-educational earning potential, even if followed by three years of normal
schooling. By contrast, research shows no substantial losses for students from the richest 20% of
neighborhoods.
21
Requiring universal masking is critical to ensuring that Black and Brown students, children
living in poverty, multilingual learners, and students with disabilities are not left even further
behind due to illness and school closures.
We know that the COVID-19 school closures present exceptional and daunting challenges for local
school districts, administrators, teachers, staff, students and parents -- as well as the Governor and
18
CDC, COVID-19: K-12 Schools Guidance, Updated Aug. 5, 2021, https://www.cdc.gov/coronavirus/2019-
ncov/community/schools-childcare/k-12-guidance.html
19
Inequity in Pennsylvania School District Reopening Decisions: How Districts’ Mode of Delivery Varies, Dulaney &
Frankenberg, https://cecr.ed.psu.edu/sites/default/files/COVID_Fall_2020_plans_in_PA.pdf
; Disparities in Learning
Mode Access Among K–12 Students During the COVID-19 Pandemic, by Race/Ethnicity, Geography, and Grade Level
— United States, September 2020–April 2021 Weekly / July 2, 2021 /70(26);953–958, at
https://www.cdc.gov/mmwr/volumes/70/wr/mm7026e2.htm.
20
Education in a Pandemic: The Disparate Impacts of COVID-19 on America’s Students, June 2021 available at
https://www2.ed.gov/about/offices/list/ocr/docs/20210608-impacts-of-covid19.pdf
.
21
When the Great Equalizer Shuts Down: Schools, Peers, and Parents in Pandemic Times, National Bureau of
Economic Research, (Dec. 2020) available at https://www.nber.org/papers/w28264
.
Ensuring that all of Pennsylvania’s children have equal access to a quality public education.
Departments of Health and Education. Issuing an order mandating universal masking in schools is
essential to enabling our schools to meet these challenges, ensure the health and safety of our
children and teachers, and ensure access to rigorous in-person instruction for all students. Our letter
seeks to inform and support these efforts.
The absence of a mask mandate will impede the successful return to in-person learning.
The evidence of the value of in-person learning is compelling, and parents, educators, and state
lawmakers have made the reopening of schools a priority. This goal is unattainable without a mask
mandate. The rapid spread of COVID among children has already resulted in new cases, will
contribute to a renewal of instructional disruptions, or even school closures. A strong mask mandate
will help allow schools to stay open and prevent additional, significant learning losses.
While we support your efforts to work with the General Assembly, we believe your Administration
has the authority to impose this mandate and urge you to do so if the legislature fails to take action
to protect our children. The time is now.
Thank you for considering this request so that all our schools can reopen and stay open as safe and
healthy environments for our children.
Signed:
A+ Schools Pittsburgh
ACLAMO
AFT – Pennsylvania
Attic Youth Center
Black on Black Education
Black Women for a Better Education
Center City Pediatrics
Centro de Cultura, Arte, Trabajo y Educación (CCATE)
Children First
Chinatown Disability Advocacy Project
Disability Rights Pennsylvania
Education Law Center – PA
Education Law Partners, P.C.
Education Voters of PA
HIAS Pennsylvania
Homeless Children's Education Fund
HUNE Inc
Ensuring that all of Pennsylvania’s children have equal access to a quality public education.
Isaacs Bernstein, P.C.
Jewish Family and Children's Service of Greater Philadelphia
Juvenile Law Center
La Puerta Abierta
Law Office of Benjamin J Hinerfeld
Liberty Resources, Inc.
Lutheran Settlement House
NAACP - PA
PA Budget and Policy Center
PA Chapter, American Academy of Pediatrics
PA Education Scholars
PA Parent and Family Alliance
PARENT POWER
Pennsylvania American Academy of Pediatrics, Co-Chair, School Health Committee
Pennsylvania Association of School Nurses and Practitioners
Pennsylvania State Education Association
Philadelphia Family Voices
Public Interest Law Center
Raffaele & Associates, LLC
Support Center for Child Advocates
Swarthmore College Department of Educational Studies
Teach Plus
The Arc of Philadelphia
The Empowering Lives Foundation
The Field Center for Children's Policy, Practice & Research
The Law Offices of Caryl Andrea Oberman LLC
The Philadelphia School
The Village of Arts & Humanities
Uplift Center for Grieving Children
Vision for Equality
We The People-PA
