LEBIEDZINSKI: Court Missed Mark in Dismissing Parents’ Case
America’s Founding Fathers wisely embedded checks and balances into our constitutional republic’s governing structure. They encouraged the courts, for example, to check the abuses and overreach of the legislative and executive branches.
During the COVID-19 pandemic, we witnessed government and teachers union overreach normalized, particularly in education – with the over-sexualization of curriculum, placement of pornographic books in middle school libraries, drag shows at elementary schools, mask mandates, free water ice and cash payments for vaccination, puberty blockers, boys competing in women’s sports, and DEI/CRT. The importance of checks and balances by the legal system and by parents has become acutely clear.
Parents instinctively know the importance of addressing discipline issues with their children, even after the fact, and even when the person who raised the issue may only be indirectly involved. Why? Because it does not matter who raised the issue, wrong is wrong. Nor does it matter if the wrongdoing is no longer occurring, wrong is wrong. Addressing the bad behavior is not moot, and if not dealt with it will occur again. Ignorance is implicit enablement.
Given this backdrop, it is particularly frustrating that the Pennsylvania Commonwealth Court has, for the second time this year, dismissed complaints brought by parents, failing to rule on the substance of each lawsuit.
Will this failure have an impact on children? Parents and educators have spent the last three years predicting the harmful effects of the delusional fear mongering that caused useless masking, school closures, and the particularly destructive “virtual learning.” Validation of those predictions has come in the form of decreasing academic achievement scores.
“This is the fifth consecutive year of declines in average scores, a worrisome trend that began long before the disruption of the COVID-19 pandemic, and has persisted,” said Janet Godwin, the CEO of the ACT.
Earlier this year, the court dismissed a case brought by parents demanding compliance with Pennsylvania’s requirement for 180 days of in-school instructional learning. At the time, school districts knew using virtual learning was illegal, but they did it anyway.
How do we know it was illegal? Mark Hoffman, executive director of Bucks County’s Intermediate Unit stated in a July 6 email to all 13 Bucks County superintendents, “No authority yet granted to PDE [PA Dept of Edu] to issue waiver for 180 day school year,” and “Hybrid options and staggered schedule options are NOT legal as of today,” and “Research provided by PDE that offers suggestions for hybrid options are NOT currently legal options as school code currently stands.”
The court did not rule on the substance of the complaint, but rather tossed it – twice – ruling that parents do not have standing to bring such a complaint. Perhaps they overlooked that parents, via school real estate taxes, fund nearly 100 percent of the costs that provide those 180 days of education.
Then on December 1, the Commonwealth Court tossed another parent-led lawsuit which asked the court to declare Pennsylvania’s secretary of education was wrong to advise school districts that they had the authority to mandate masks. Yes, you read that correctly, the secretary of EDUCATION, not the Secretary of HEALTH. Oddly enough, this time last year, the same Commonwealth Court declared then-Sec. of Health Alison Beam’s statewide masking order void ab initio (void from the beginning). Beam was fired after the ruling and – shocker – was hired by UPMC as a government liaison.
The court held the “guidance” issued to school superintendents by the secretary of education “was not an order, directive requirement, or mandate requiring” Pennsylvania school districts “to implement masking mandates within their schools.” Accordingly, the court found that any order it would issue would amount to an “advisory opinion.” Oddly enough, that advisory opinion is exactly what the Complaint demanded, and is exactly the job of the court – to interpret the law.
The court also ruled the complaint was moot because the school districts had already made masks optional. The court ignored the argument that districts’ Health and Safety Plans continue to this day to have language enabling mask mandates to be reinstated at any time in the future.
The complaint cited the expressio unius est exclusio alterius doctrine – a Latin phrase meaning the inclusion of specific powers to one government agency implies the exclusion of such powers to other agencies. Because the legislature delegated disease control to the Department of Health, the Department of Education has no power to govern disease control.
Abdicating its responsibility to determine constitutionality, the court did not rule on the substantive issues brought by the parents in either complaint. That is literally their job. Parents and students deserve better.
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