Earlier this month, Pennsylvania’s largest teachers’ union, the AFT, threatened an illegal strike if Governor Tom Wolf’s Department of Education did not immediately institute certain so-called COVID-mitigation measures in all Pennsylvania schools, including a KN95-mask mandate — never mind that the Pennsylvania Supreme Court already ruled Governor Wolf could not do this — mandatory vaccinations for all teachers and staff, and mandatory “pool testing” for children.
If it sounds like an extortion plan, it is. But this extortion plan and strike threat are made possible only by an equally illegal policy of the Pennsylvania Department of Education.
Prior to the 2020–2021 school year, Wolf’s Education Department instituted a policy permitting any school district in Pennsylvania to substitute remote instruction in place of traditional, in-person instruction. It was that policy that permitted many school districts to deny countless Pennsylvania children the right to in-person instruction.
The problem with that policy? It expressly violates the Pennsylvania Public School Code and the Pennsylvania Constitution.
The Pennsylvania Public School Code requires that all schools remain open for at least 180 days for the purpose of instructing students. That 180-day requirement is immutable except through action by our General Assembly, which has acted on several occasions to relax the 180-day, in-person instruction requirement for school districts that were impacted by natural disasters, like flooding and blizzards, that caused the closure of school buildings.
More recently, in March 2020, the General Assembly took action to relax the 180-day requirement in response to the emerging COVID pandemic. One way it did so was by permitting school districts to count an unlimited number of virtual instruction days toward the 180-day requirement so that School Districts could complete the school year virtually. In 2019, the General Assembly permitted school districts to use a maximum of five virtual days toward that 180-day requirement, but the main purpose of that law was to let schools remain open on snow days. The March 2020 legislation lifted that cap but was clear that it applied only to applied only to the 2019–20 school year. It applied only to the 2019-2020 to permit School Districts to complete that year virtually after COVID unexpectedly arrived mid-way through that school year.
As it did with the mask mandate policy, the Commonwealth Court should strike down the virtual-school policy because the Wolf administration lacks any legal authority to institute it.
The clarity of that legislation did not deter the Wolf administration from instituting a policy that directly contradicted the school code. (As we saw with its mask mandate, the Wolf administration has a propensity for ignoring statutory and constitutional demands.) Wolf’s virtual-school policy remains in place, and it allows the teachers’ unions to threaten to “pause in-person” instruction and replace it with remote instruction if their demands are not met.
Last year, on behalf of a group of concerned parents, I filed an action in Commonwealth Court challenging the Wolf administration’s illegal virtual-learning policy. Next month, the court will hear arguments in the case. As it did with the mask mandate policy, the Commonwealth Court should strike down the virtual-school policy because the Wolf administration lacks any legal authority to institute it. A victory in that case would be a victory for all Pennsylvania school children who have the right to in-person instruction. It would also be a victory over the extortion demands of the teachers’ unions.
Wally Zimolong is a conservative attorney in Pennsylvania. He has acted as lead trial counsel in hundreds of cases in federal and state courts and before administrative agencies, including numerous public policy and election related cases. Examples of his work in these areas can be found at www.republican.law.