Open PA Schools, et al v. Department of Education, et al  (504 MD 2020), was filed in Pennsylvania Commonwealth Court on September 8, 2020.

As you may know, a group of parents in Pennsylvania has been exploring ways to hold our school districts and the Commonwealth of Pennsylvania accountable for the arbitrary decisions to deny full, in-person education and to cancel sports and other activities that are critical to the educational experience. We believe there are many claims (some shared by taxpayers in multiple districts) regarding the process by which school districts made their decisions (breaches of duty, etc.) as well as claims against the Commonwealth regarding the unenforceable and contradictory “guidance” and “recommendations” that make the full reopening of schools more difficult. Unfortunately, the Pennsylvania Courts have demonstrated that they are unlikely to go against the Wolf Administration in matters of “discretion” concerning emergency actions related to COVID-19. So we focused instead on a very clear statutory interpretation claim, where actions by the Wolf Administration and the General Assembly in March make the appropriate result very clear.   

This group of parents is now working with attorney Wally Zimolong. The attorney is an experienced litigator with specific expertise litigating claims against schools and governmental entities on matters of civil rights and constitutional issues. The attorney has agreed to represent plaintiffs from multiple school districts that have expressed an interest in joining the suit.  Even if your school district is not named as a defendant in the litigation, if the litigation prevails the benefit would run to every school district throughout the Commonwealth.

Briefly, the litigation centers on the interpretation of specific provisions of the Pennsylvania Public School Code of 1949 (the “Code’). In March 2020, the Pennsylvania General Assembly, at the request of the Wolf Administration, adopted an emergency school bill (the “Emergency Bill”). Among other things, the Emergency Bill amended Section 1501 of the Code to waive the requirement that school districts provide 180 days of in-classroom instruction (see section 1501.8). However, the express terms of the Emergency Bill limited the waiver to the 2019-20 school year (see section 1501.9). The Department of Education claims to be relying on another provision of the Code, section 520.1, regarding “temporary emergencies.” While section 520.1 permits school district to make temporary changes to educational instruction, it expressly provides that this does not waive the 180-day requirement (see section 520.1). Of course, if section 520.1 provides the broad authority the Department of Education believes it does, then it would have been unnecessary to amend the Code back in March.

A positive result of this litigation would be a determination by the Court that days of “virtual” learning may not be counted toward the 180 day requirement under the Code. If the Court renders such a judgment (which would then most likely be appealed to the PA Supreme Court), then either the Wolf Administration would have to work with the General Assembly to adopt another “emergency bill,” and amend the Code to waive the 180-day requirement (as they did in March) or school districts would have to figure out how to safely provide all students with the option to attend school in-person so that the 180-day requirement may be met. If this litigation is successful, then the longer schools wait to provide a full, in-person option, the longer it would take to meet the 180-day requirement. Although unlikely, this could mean that schools would have to offer Saturday classes, hold classes through scheduled holidays, and possibly extend the school year into the summer (although the Code also limits the time within which school districts must meet the 180 day requirement). Of course, no one (parents, students or teachers) desires such an outcome, but that is the point. If this litigation is successful, all interested parties (parents, students, school districts, school boards, teachers and staff) will be on the same side of the table.   

To be clear, this litigation does not seek to compel school districts, the PDE or the General Assembly to do (or not do) anything. Rather, the litigation will ask the Court to interpret statutory provisions and provide a clear ruling as to the obligations that school districts have to provide 180-days of in-person instruction to those who demand it. Whether that starts in September, November or sometime in 2021 will be up to each individual school district. But, with a clear ruling that “virtual learning” days do not count toward the 180 day requirement, parents will be able to increase the pressure on school districts to do their jobs. All parties will be highly motivated and incentivized to achieve the same goal – the full opening of public schools as soon as humanly possible.

An overwhelming majority of parents in an overwhelming number of school districts have made their intentions clear. Parents across the Commonwealth want the ability to make decisions for their families and they want schools to provide a traditional, full day, full week, in-person education option. This is what our tax dollars pay for and we have a right to demand it.

We believe the litigation outlined above is the most efficient way to achieve the outcome we all desire. The sooner students return to the classroom, the sooner they will have the opportunities they deserve! Opportunities to learn; to bond with their teachers, coaches and classmates; opportunities to play sports; and opportunities to participate in all other activities that make for well-rounded students. 

Litigation is expensive, especially when taking on the state! There is a fundraising goal of $25,000 to litigate this case. If 250 people from across the Commonwealth give $100, the goal can be accomplished. If you cannot give $100, please give whatever you can. If you can afford to contribute to more and you are inspired to do so, please give more. Funds will be deposited directly into a trust account and will be used solely for purposes of the costs and expenses of litigation. Here is the link to the crowdfunding (GoFundMe) campaign HERE. We will provide updates to all those who sign the petition and contribute to the litigation. 

This litigation will serve the interests of every public school family across the Commonwealth. It is time for our elected officials to listen to the very clear will of the people! Please go to and our crowdfunding page today and show your support!

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