The main reason the District Court gave for reaching this conclusion is that the crowd size limit was overly broad, given that the threat posed by COVID-19 is not the same in every part of the state – a reality, the Court says, is not recognized by this across-the-board order. The Governor requested that the District Court stay the enforceability of its decision while the Governor appeals it to the Third Circuit Court of Appeals. On September 23, the District Court refused to issue such a stay of its decision. The Governor has filed an appeal to the Court of Appeals and is expected to request that court issue a stay of the District Court decision. 

School sporting events and range of other school gatherings for students and administrators have largely followed guidance that was aligned with Wolf’s crowd-limit executive order. Prior guidance from the state on school athletics was that, while it is a local decision, they should not occur until January 1. To the extent that schools allow such gatherings, they must adhere to the size and capacity limits for total attendees, which have now been found unconstitutional. The guidance on other gatherings has largely been limited to the crowd size order. 

Given this decision by the District Court and absent a stay by the Third Circuit Court of Appeals or some other action, the Governor’s executive order on crowd sizes is currently unenforceable. Moreover, the Governor has essentially admitted the same by requesting in an email from the Department of Education to district superintendents that, despite the court decision, schools still voluntarily abide with his directive in this regard. Absent action by the Court of Appeals, the decision of the District Court would apply statewide given the general rule that when a regulation is found unconstitutional or unlawful, the regulation is vacated. As a result, the executive order is void for now, but the Court of Appeals could change that if it issues a stay.

At this point, if a district declines to follow what is now merely a recommendation from the Governor’s office, schools should continue to monitor the situation and develop a plan for addressing the issue of crowd sizes at various events in terms of what a district believes to be safe given the status of the virus and the physical facilities of its district. However, this approach should be consistent with the district’s health and safety plan and any CDC, state or county standards included by reference in the health and safety plan. In addition, districts will want to be mindful that some county health departments may also issue crowd size limits, which would not be affected by this ongoing litigation. Finally, schools should be prepared to implement the Governor’s order on crowd sizes in the event the Court of Appeals issues a stay and the Governor seeks to enforce his prior order.