Before a full panel of Commonwealth Court judges Wednesday, Butler Area School District solicitor Tom King defended a lawsuit the district filed against Gov. Tom Wolf and other state officials for requiring the district to attest to use remote instruction or commit to safety measures during to the COVID-19 pandemic last year.

In the virtual hearing, King argued against preliminary objections filed by Karen Romano, chief deputy attorney general, who argued in support of the objections and asked for dismissal of the case.

The court is expected to issue a ruling in 30 days. If the court rules in the district's favor, a hearing for the case will be held on the district's complaint.

King argued that the attestation requirements imposed on school districts by Wolf, then-Secretary of Health Rachel Levine and acting Secretary of Education Noe Ortega were a usurpation of power granted to local school boards.

The order required districts to comply with face mask wearing and other safety orders to conduct in-person classes or fully transition to remote learning, but usurped the authority of the legislature and school boards, King said. The order also put a stop to athletics and other extracurricular activities.

The district is seeking a permanent injunction barring the state officials from imposing such orders in the future.

Romano said Wolf acted under his authority to reduce the spread of the coronavirus, and the request for a permanent injunction is moot because those orders have expired.

“This can occur again. This is not moot,” said Judge Patricia McCullough.

The attestation order was in effect for three weeks in December 2020 when there was a spike in cases, Romano said. The order required students and staff to wear masks and required schools to close after a certain number of cases occur, she said.

Romano said a constitutional amendment approved in a referendum in the May primary places time limits on the governor's emergency declarations, but the governor still has policing powers, and the Department of Health can issue orders under the Disease Prevention and Control Law for counties that don't have their own health departments, such as Butler County.

McCullough asked how the Department of Health was able to instruct the Department of Education to impose the orders on schools.

The secretary of health authorized the department of education to issue the order.

Judge J. Andrew Crompton asked if the three defendants also had the authority to order schools to halt athletics and other extracurricular activities.

Romano said they have that power during a public health crisis and the state can preempt the authority of local school boards.

King began his argument by citing information from the U.S. Centers for Disease Control and Prevention saying school was the safest place for children during the pandemic because most cases were not transmitted in schools, and closing schools was an “emotional response” to the outbreak.

He said the state Constitution charges the Legislature with creating a public eduction system, and the Legislature vested local school boards with the authority to carry out provisions of the School Code.

The code gives school boards the authority to conduct education programs during times of war, natural disasters and temporary emergencies, King said. Neither the governor nor secretaries of health and education have the authority to close schools under provisions of the Emergency Powers Act, he said.

“They do not have the power to shut the schools down. They don't have such power. The Legislature never gave them those powers,” King said. “School boards are vested with that power by the Legislature. The governor can't take it away.”