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Law360 (January 14, 2021, 6:28 PM EST ) The Commonwealth Court of Pennsylvania ruled Thursday that several parents and an advocacy group lacked standing to challenge the state's shift to online schooling amid the COVID-19 pandemic and dismissed their suit seeking a declaration that state law requires students to receive in-person instruction.
The Open PA Schools organization and 10 parents who signed onto the lawsuit against the Pennsylvania Department of Education, Education Secretary Pedro Rivera and six school districts didn't allege a sufficient, direct harm from their school districts' decision to count online instruction toward the 180 days of school required by state law, the court ruled in dismissing the case.
"Even assuming arguendo that petitioners have been more directly impacted than ordinary citizens because they are parents of children in the responding school districts, the petition does not specifically assert, as it must, that any of the individually listed petitioners sustained any harm," Judge Christine Fizzano Cannon wrote in the opinion for the unanimous court. "As to petitioners' assertion that Open PA Schools represents members who have sustained 'direct, immediate, and substantial injury,' the petition fails to specify any actual or even potential harm to the group or its members."
The court dismissed the suit — which was filed with the Commonwealth Court in September seeking a declaration that schools must have at least 180 days of in-person instruction as opposed to online days — without prejudice, noting it could theoretically be amended to show standing.
"We do not conclude as a matter of law that petitioners are unable to allege sufficient facts to establish standing under this analysis," the opinion said.
In late March 2020, as the pandemic's spread in the U.S. became apparent, the state legislature waived the Pennsylvania School Code's 180-day requirement for the 2019-2020 school year, and authorized the Department of Education to increase the number of "flexible" online instruction days as districts needed, the opinion noted. The legislature didn't extend the waiver for the 2020-2021 school year and said students should get 180 days of school "notwithstanding any order issued under a declaration of disaster emergency."
The Department of Education released a policy authorizing school districts to make temporary arrangements to provide more than the five online days reserved under the School Code, an action the parents' lawsuit said was improper.
"Petitioners argue that the 180-day requirement is mandatory even in emergencies, requires in-person learning, and can only be altered by the General Assembly," the opinion said.
The petitioners went on to argue that "allowing districts to exceed the five flexible instruction days permitted by Section 1506 renders Section 1506 superfluous," but that "could not have been the General Assembly's intent," according to the opinion.
The Department of Education objected to the parents' standing to bring the suit, arguing that they had not alleged a harm beyond wanting the state to follow the law as they interpreted it.
And while the petitioners' briefs argued that they suffered particular harm as parents of children affected by the reduced in-person school days, the Commonwealth Court said those arguments needed to be in the complaint itself to give them standing.
"Despite petitioners' assertions in their subsequent responsive pleadings and brief, the determination as to standing must be made solely on their petition and any relevant attachments or exhibits," the opinion said.
A broader claim that the districts had violated state law might have been enough to grant an injunction, but the parents wrongly conflated that maneuver with the higher standard necessary to establish standing, Judge Cannon wrote.
"The standard of harm required to achieve standing requires a would-be plaintiff to show more: a direct, substantial, immediate interest and sufficient averment of facts showing the party is aggrieved," she wrote. "The petition, as drafted, fails to assert actual or even probable harm sufficient to meet the correct standard. Accordingly, petitioners have not established standing to bring their cause of action."
Counsel for the parents and representatives of the Department of Education did not immediately respond to requests for comment Thursday.
Open PA Schools and the parents are represented by Walter S. Zimolong of Zimolong LLC.
The Pennsylvania Department of Education is represented by Alexander T. Korn and Stephen R. Kovatis of the Pennsylvania Attorney General's Office.
The case is Open PA Schools et al. v. Department of Education of the Commonwealth of Pennsylvania et al., case number 504 MD 2020, in the Commonwealth Court of Pennsylvania.
--Editing by Ellen Johnson.
For a reprint of this article, please contact reprints@law360.com.
