Commonwealth Court tossed out objections to Butler Area School District’s lawsuit over COVID-19 restrictions, allowing the case to continue toward trial.

The court in Harrisburg on Monday rejected preliminary objections from the state Department of Health, the Department of Education and Gov. Tom Wolf on the case. Petitions in the case originally were filed by Butler district board members and families.

The district sued Wolf and other state officials on Dec. 14, 2020, for requiring the district to either use remote instruction or commit to safety measures during the height of the COVID-19 pandemic.

Butler attorney Tom King argued on behalf of the plaintiffs at a hearing in June 2021 that the COVID safety requirements, imposed on school districts by Wolf, then-Secretary of Health Dr. Rachel Levine and acting Secretary of Education Noe Ortega in 2020 were overruling the power granted to local school boards to make decisions for their districts.

The policies included a “mitigation” order in December 2020, which suspended extracurricular activities and sports temporarily.

The district is seeking a permanent injunction that would prevent state officials from imposing similar policies in the future.

In an opinion released Monday, Oct. 3, the court overruled five preliminary objections submitted by the state, which had hoped that the case would be dismissed.

The objections generally argued that according to state laws and codes, state officials did not usurp the powers of school districts or the legislature in making the COVID policies. The state argued that the case is moot because most of the policies have expired.

The court noted that one part of the policies has not technically expired, and nothing in recent changes to Pennsylvania law necessarily prevents these kinds of orders from being issued over future crises. Therefore, the case is not moot, and can continue.

King said the decision was a “big deal” and a potentially significant opinion.

“It’s important to get a decision as to whether the governor, secretary of health and secretary of education have the powers over school boards that they say they have,” King said. “We don’t think they do, and we think this decision is a very important step in reinforcing the power of school boards to make these decisions.”

The court agreed unanimously to reject all objections other than objection IV, which argued that the “mitigation” orders suspending sporting events and in-person extracurricular activities for a three-week period were a proper exercise of the commonwealth’s police powers, and did not “unlawfully usurp the powers of the General Assembly or local school boards.”

While a majority of the judges did reject objection IV, Judges Ellen Ceisler, Lori Dumas and Michael Wojcik disagreed with the majority, arguing that because of recent state constitutional amendments, the concern that the governor could extend an emergency indefinitely is now no longer an issue.

In her dissenting opinion, Ceisler noted that once the governor declares a disaster emergency, “the emergency code grants him expansive emergency management powers, including the power to issue executive orders that shall have the force and effect of law.”

“It is evident from these provisions that the General Assembly intended that the Governor — not state agencies or local school boards — has the ultimate decision-making authority when it comes to managing a disaster emergency in our Commonwealth,” Ceisler’s opinion read.

“I believe the emergency code gave the governor the authority to issue the mitigation order to control the spread of COVID-19 in our schools during the height of the pandemic.”

In deciding to reject objection II, which argued that the “attestation order” — a requirement to submit a health and safety plan and follow COVID policies — was permitted by the Administrative Code and the Disease Prevention and Control Law of 1955, the court cited the state Supreme Court decision Corman v. Acting Secretary of the Pennsylvania Department of Health. The Corman decision overturned the state school mask mandate in the fall of 2021.

“The Supreme Court in Corman concluded that the non-emergency measures available to the Secretary of Health to control disease under the DPCL and the Administrative Code are ‘limited to those adopted by formal rule and regulation,’” the opinion reads.

“(Corman) did hold that the Secretary of Health’s powers under the DPCL and the Administrative Code are not unlimited, and may not, in ordinary instances, circumvent the ordinary rulemaking process.”

The next step in the case would be a discovery process, King said. The court will schedule a conference to establish a trial date, though this conference has not yet been scheduled. King expects to see a trial “within the next six to nine months.”

“What the trial would decide is whether or not the attestation form, which is required of any district in the state, has any validity at all,” King said. “This case is all about confirming the power of the school directors as against the governor, secretary of education, and secretary of health.”