FORTUNA v. TOWN OF WINSLOW

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

SCOTT FORTUNA )

)

Plaintiff, )

)

v. ) No. 1:21-cv-00248-JAW

)

TOWN OF WINSLOW, et al. )

)

Defendants. )

ORDER ON MOTION TO DISMISS

A plaintiff parent of a junior high student brings a substantive due process

challenge seeking declaratory, injunctive, and other relief, including compensatory

and punitive damages, from a school district COVID-19 prevention measure

requiring all students to wear masks while at school. The school defendants enacted

the mask policy before the start of the 2021-2022 school year and recently amended

it to make masks optional. The school defendants seek to dismiss the plaintiff’s claim

on the ground that the plaintiff failed to implicate a fundamental right or state a

cognizable “conscious-shocking” due process violation, and because the mask policy,

enacted pursuant to public health guidance, was rationally related to the legitimate

government purpose of mitigating student risk and minimizing learning disruptions

during an unprecedented pandemic. The Court concludes that the plaintiff failed to

allege facts sufficient to survive dismissal.

I. PROCEDURAL HISTORY

On August 27, 2021, Scott Fortuna filed a three count complaint against the

town of Winslow, Maine, Winslow Public Schools, Superintendent Peter Thiboutot,

and the Winslow School Committee (the School Defendants). Compl. (ECF No. 1).

On September 7, 2021, the School Defendants filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). Mot. to Dismiss for Failure to State a Claim

of Defs. Winslow Public Schools, Winslow School Board, and Peter Thiboutot (ECF

No. 10). On September 20, 2021, Mr. Fortuna filed an unopposed motion to dismiss

without prejudice the claims against the town of Winslow, which the Court granted.

Pl.’s Mot. for Leave to Dismiss Town of Winslow Without Prejudice (ECF No. 14);

Order (ECF No. 15).

On October 28, 2021, Mr. Fortuna filed an amended complaint in which he

abandoned Counts II and III. First Am. Compl. (ECF No. 18) (First Am. Compl.). On

November 1, 2021, the School Defendants withdrew their earlier motion and filed a

new motion to dismiss Mr. Fortuna’s first amended complaint. Defs.’ Withdrawal of

Mot. to Dismiss Compl. for Failure to State a Claim (ECF No. 20); Defs.’ Mot. to

Dismiss First Am. Compl. for Failure to State a Claim (ECF No. 21) (Defs.’ Mot.). On

November 15, 2021, Mr. Fortuna filed his response in opposition to the School

Defendants’ motion to dismiss. Pl.’s Opp’n to Defs.’ Mot. to Dismiss (ECF No. 22) (Pl.’s

Opp’n). The School Defendants replied on November 22, 2021. Defs.’ Reply in Supp.

of Mot. to Dismiss (ECF No. 23) (Defs.’ Reply).

On February 24, 2022, Mr. Fortuna filed a motion to amend, attaching his

proposed second amended complaint. Mot. for Leave to File Second Am. Compl. (ECF

No. 25) (Pl.’s Mot. to Amend); see id., Attach. 1, Pl.’s Second Am. Compl. On February

25, 2022, the School Defendants responded in opposition to Mr. Fortuna’s request to

amend. Defs.’ Opp’n to Pl.’s Mot. for Leave to File Second Am. Compl. (ECF No. 26)

(Defs.’ Opp’n to Mot. to Amend). Mr. Fortuna filed his reply on March 3, 2022. Pl.’s

Reply to Defs.’ Opp’n to Mot. to File Second Am. Compl. (ECF No. 27) (Pl.’s Reply in

Supp. of Mot. to Amend).

On March 10, 2022, the Court ordered the parties to update the record on

whether the School Defendants had recently lifted the mask mandate by making

mask wearing optional in Winslow Schools. Order (ECF No. 29). On March 11, 2022,

the School Defendants responded that:

On Monday, March 7, 2022, the Winslow School Board voted to make

masks optional in the Winslow Public Schools based on updated

guidance from the Maine Department of Education and public health

authorities.

The new optional mask policy took effect on Wednesday, March 9, 2022.

Resp. to Ct.’s Order at 1 (ECF No. 30). Counsel for the parties “agreed that this

change in the Winslow Public Schools mask policy does not render this case, or the

pending motions, moot because the Winslow Public Schools could reimpose a

mandatory masking policy if guidance from public health authorities changed

again.”1 Id.

1 The Court accepts the parties’ agreement on this point for purposes of the pending motion to

dismiss. However, the Court is skeptical about whether this mootness stipulation is sustainable. If

the parties are stipulating about the current state of the pandemic, they have already agreed that

masks are currently optional for Winslow Public School students. If they are stipulating about the

future course of the COVID-19 pandemic, there is no evidence in this record that the School Defendants

are likely to reimpose the same mandatory masking policy. If and when a new form of pandemic visits

its troubles upon the world, it is unlikely to come in the exact form of the COVID-19 pandemic.

Whether masks will be required of school children at some point in the future would depend on an

array of factors not now before the Court and to stipulate otherwise seems speculative at best. See

Calvary Chapel of Bangor v. Mills, 542 F. Supp. 3d 24, 38 (D. Me. 2021) (“Given the current lack of

restrictions, a court order granting the relief sought in the Complaint would be meaningless”) (citing

D.H.L. Assocs., Inc. v. O’Gorman, 199 F.3d 50, 54 (1st Cir. 1999) (“[W]e are without power to grant

injunctive and declaratory relief because the [challenged] ordinances no longer exist”)).

On March 22, 2022, the Court granted Mr. Fortuna’s request to amend his

complaint to add additional factual allegations and a specific assertion that even if

the school district modifies its recommendations on universal masking, there is a

likelihood it will reimpose the masking mandate in the future. Order on Mot. to

Amend at 8-9 (ECF No. 31). On March 24, 2022, the parties advised the Court that

they wished to maintain their briefing on the motion to dismiss as currently filed.

Joint Resp. to Ct.’s Order (ECF No. 32). On April 19, 2022, Mr. Fortuna filed his

Second Amended Complaint pursuant to the Court’s order granting him leave to

amend. Pl.’s Second Am. Compl. (Second Am. Compl.) (ECF No. 36). The School

Defendants responded by renewing the arguments made in their motion to dismiss

and reply to Mr. Fortuna’s motion to amend. Renewal of Mot. to Dismiss (ECF No.

38).

II. THE FACTS

A. Judicially Noticeable Public Health Data

The Court must first consider what it may consider. The standards for

resolving a motion to dismiss are familiar. Consistent with Federal Rule of Civil

Procedure 12(b)(6), when deciding a motion to dismiss, a court “accept[s] all well-

pleaded facts in the complaint as true.” Gilk v. Cunniffe, 655 F.3d 78, 79 (1st Cir.

2011) (quoting Sanchez v. Pereira-Castillo, 590 F.3d 31, 36 (1st Cir. 2009)). A court

The Court, however, does not have to resolve this issue because Mr. Fortuna’s claim for

damages for injuries under the past mandate is sufficient for the Court to consider that claim for relief

an actual case or controversy. See U.S. CONST. Art. III, § 2; 28 U.S.C. § 2201(a) (“In a case of actual

controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and

other legal relations of any interested party seeking such declaration, whether or not further relief is

or could be sought”); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007).

also “construe[s] all reasonable inferences in favor of the plaintiff . . ..” Sanchez, 590

F.3d at 41 (quoting Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30,

33 (1st Cir. 2001) and citing Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d

315, 320 (1st Cir. 2008)).

Under the general rule, a court must decide a motion to dismiss “solely on the

face of the complaint, without any consideration of any other documents.” Cebollero-

Bertran v. P.R. Aqueduct and Sewer Auth., 4 F.4th 63, 69 n.4 (1st Cir. 2021); Doe v.

Pawtucket Sch. Dep’t, 969 F.3d 1, 8 (1st Cir. 2020). Two exceptions to the general

rule are material here. The first is that a court may consider “documents attached to

the complaint or incorporated by reference therein.” Young v. Wells Fargo Bank,

N.A., 717 F.3d 224, 231 (1st Cir. 2013). This exception is sufficiently broad to capture

documents “integral to or explicitly relied upon in the complaint, even though not

attached to the complaint.” Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228

F.3d 24, 32 (1st Cir. 2000).

A second exception permits consideration of “matters of public record.”

Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013); Haley v. City of Boston,

657 F.3d 39, 46 (1st Cir. 2011). The First Circuit has observed that the phrase

“official public records” appears “limited, or nearly so, to documents or facts subject

to judicial notice under Federal Rule of Evidence 201.” Freeman, 714 F.3d at 36.

With this background, the Court turns to the positions of the parties.

The School Defendants urge the Court to adopt the approach of the District

Court for the Central District of California to “take judicial notice of facts from the

websites of the Centers for Disease Control (CDC), the Maine CDC and the MDOE

[Maine Department of Education].” Defs.’ Mot. at 4-5. In Calm Ventures LLC v.

Newsom, 548 F. Supp. 3d 966 (C.D. Cal. 2021), California’s governor and attorney

general, seeking dismissal of a challenge to statewide COVID-19 restrictions, urged

the district court to take judicial notice of government sources of information about

the COVID-19 pandemic, including the CDC’s “COVID Data Tracker and its publicly

reported data,” California’s own COVID-19 statistics, and a CDC Science Brief. Id.

at 974. Over the plaintiff’s objection that incorporating this information would

“convert a motion to dismiss into a motion for summary judgment,” the district court

granted the government defendants’ request for judicial notice of documents in the

public record, pursuant to Federal Rule of Evidence 201. Id.

In Gent v. CUNA Mutual Insurance Society, 611 F.3d 79 (1st Cir. 2010), the

First Circuit incorporated information from the CDC website in its affirmance on a

motion to dismiss, explaining that “we take judicial notice of the relevant facts

provided on the [CDC] website, which are ‘not subject to reasonable dispute.’” Id. at

84 n.5 (citing FED. R. EVID. 201(b), (f); Denius v. Dunlap, 330 F.3d 919, 926-27 (7th

Cir. 2003) (taking judicial notice of information from an official government website)).

Recently, courts in this District have incorporated information from the Maine

CDC’s daily case counts and Maine’s COVID-19 Vaccination Dashboard in orders

related to COVID-19 public health restrictions. See Cavalry Chapel of Bangor v.

Mills, 542 F. Supp. 3d 24, 27-28 & n.4 (D. Me. 2021) (on a motion to dismiss, taking

“judicial notice of matters appearing on an official government website, which are not

subject to reasonable dispute”) (citing Gent, 611 F.3d at 84 n.5); see also Doe v. Mills,

No. 1:21-cv-00242-JDL, 2021 U.S. Dist. LEXIS 197251, at *3 (D. Me. Oct. 13, 2021)

aff’d, 16 F.4th 20 (1st Cir. 2021) (taking “judicial notice of certain additional facts

pertinent to the Motion [for preliminary injunction],” including from CDC

publications) (citing In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 20 (1st Cir.

2003); Loucka v. Lincoln Nat’l Life Ins. Co., 334 F. Supp. 3d 1, 8-9 (D.D.C. 2018)

(“[T]he CDC’s Lyme-testing criteria and procedures are a matter of public record, and

it cannot be reasonably questioned that the agency’s website is an accurate source for

those standards”)).

Throughout the COVID-19 pandemic, “[c]ourts presiding over similar cases

have taken judicial notice of Public Health Orders and scientific consensus regarding

the coronavirus.” Legacy Church, Inc. v. Kunkel, 472 F. Supp. 3d 926, 1066-67

(D.N.M. 2020) (“Public Health Orders are noticeable, because they are generally

known with[in] the District of New Mexico, readily determined from the New Mexico

Department of Health, and there is no dispute that the Public Health Orders

accurately reflect New Mexico’s COVID-19-related restrictions and guidelines”), aff’d

sub nom. Legacy Church, Inc. v. Collins, 853 F. App’x 316 (10th Cir. 2021)

(unpublished); see, e.g., Givens v. Newsom, 459 F. Supp. 3d 1302, 1309 (E.D. Cal.

2020) (taking judicial notice of “the contents of [Public Health Orders from other

states and municipalities], not the truth of those contents”); Basank v. Decker, 449 F.

Supp. 3d 205, 211-12 (S.D.N.Y. 2020) (taking judicial notice of COVID-19’s public

health risks).

Here, the Court draws the relevant facts from the Second Amended Complaint

and further concludes that it can take judicial notice of information from the official

CDC and Maine CDC government websites that is “not subject to reasonable dispute.”

Gent, 611 F.3d at 84 n.5 (quoting FED. R. EVID. 201(b), (f) and citing Denius, 330 F.3d

at 926-27); see also In re Colonial Mortg. Bankers Corp., 324 F.3d at 20 (noting that

although a district court is generally limited to examining the record on a motion to

dismiss, it may also consider “the documents incorporated by reference in it, matters

of public record, and other matters susceptible to judicial notice”); Murphy v. Lamont,

No. 3:20-CV-0694 (JCH), 2020 U.S. Dist. LEXIS 136961, at *25 n.14 (D. Conn. Aug.

3, 2020) (“The CDC is the nation’s healthcare protection agency. The court takes

judicial notice of CDC’s various COVID-19-related postings and guidance”).

As “government publications are matters of public record” and thus “proper

subjects of judicial notice,” in accordance with precedent from other courts, the Court

augments Mr. Fortuna’s Second Amended Complaint with the dates and contents of

official CDC guidance publications and other epidemiological data from the CDC and

Maine CDC that are not in dispute. McGhee v. City of Flagstaff, No. CV-20-08081-

PCT-GMS, 2020 U.S. Dist. LEXIS 81370, at *6 (D. Ariz. May 8, 2020) (“To avoid

taking judicial notice of disputable facts within matters of public records, the Court

limits its judicial notice of the proposed publications to their existence and that they

contain the purported statements”) (citing Gent, 611 F.3d at 84 n.5 (1st Cir. 2010)).

Moreover, the Court considers the CDC website under the “referred to” rubric

because in his Second Amended Complaint, Mr. Fortuna repeatedly refers to CDC

guidance, released via its website. Am. Compl. ¶¶ 5, 17-20, 22, 28, 30-31, 45, 61, and

69. In the Court’s view, these references in the Second Amended Complaint are

sufficient to allow the Court to consider the CDC website itself.

However, in accordance with Federal Rule of Civil Procedure 12(b)(6), the

Court does not incorporate the basis for the CDC’s scientific conclusions or public

health research that may be contradictory or disputed by Mr. Fortuna. Such factual

analysis is reserved for a motion for summary judgment. See McGhee, 2020 U.S. Dist.

LEXIS 81370, at *6 (noting that, on a motion to dismiss a challenge to a mask

mandate enacted pursuant to official CDC guidance, such government publications

are relevant “not for the truth of what they assert, but for their existence”); see also

Megeso-William-Alan v. Ige, 538 F. Supp. 3d 1063, 1068 n.3 (D. Haw. 2021) (“In ruling

on the Moving Defendants’ motions [to dismiss], the court can consider the various

releases posted on the CDC’s website” as “[t]he fact that the CDC actually released

the statements cited by the court cannot be reasonably disputed”).

B. The Parties

Scott Fortuna is the father of A.F. and a resident of Penobscot County, Maine.

Second Am. Compl. ¶ 9. Pursuant to Maine law, A.F. is obligated to attend the

Winslow Junior High School, which is part of the Winslow Public Schools system in

Winslow, Maine. Id. ¶¶ 8-9.

Winslow Public Schools, under the direction of the Winslow School Committee

a/k/a Winslow School Board (WSC), 2 operates Winslow Elementary School, Winslow

2 Mr. Fortuna says that “Winslow School Committee a/k/a Winslow School Board (WSC) is a

Junior High School, and Winslow High School in Kennebec County, Maine. Id. ¶¶

10-12. Peter Thiboutot serves as the superintendent of the Winslow Public Schools.

Id. ¶ 13. At all times material to this case, the WSC and Superintendent Thiboutot

acted under color of state law and enjoyed policy-making authority related to the

masking policy. Id. ¶¶ 11, 13.

C. The COVID-19 Pandemic

COVID-19 is an airborne virus and is transmitted through aerosols. Id. ¶ 24.

As of June 9, 2022, there have been 191,438 confirmed cases of the COVID-19 virus

in Maine, 74,133 probable cases, 5,051 COVID-19 hospitalizations, and 2,401 COVID-

19 deaths. COVID-19: Maine Data, ME. CDC,

https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus/data.shtml

(last visited June 9, 2022). As of June 9, 2022, Maine CDC data showed that 67,379

Maine residents under the age of twenty had contracted the COVID-19 virus,

representing 25.4% of the total cases in the state. See id. (providing a share of cases

by age group). As of June 9, 2022, young people under the age of twenty represent

the highest share of COVID-19 cases in Maine, followed by people in their twenties

representing 15.9% of all cases. Id.

1. COVID-19 Prevention and Mitigation Strategies

Physical distancing, frequent hand washing, proper ventilation and voluntary

vaccination all indisputably mitigate the spread of COVID-19 and do not negatively

subdivision of the Town of Winslow,” Second Am. Compl. ¶ 11, however “local school committees are

agents of the state and are legally distinguished from municipalities.” Pickering v. Town of Sedgwick,

628 A.2d 149, 150 (Me. 1993).

impact the physical or mental wellbeing of children during school. Second Am.

Compl. ¶¶ 30, 33. Spacing children three feet apart while seated in a classroom under

a teacher’s supervision, according to the CDC, prevents transmission of airborne

virus particles. Id. ¶¶ 31-32.

Mr. Fortuna alleges that the airborne COVID-19 virus is too small to be

filtered, so “masks are ineffective to prevent aerosol transmission and thus ineffective

to prevent transmission of the COVID-19 virus.” Id. ¶¶ 24-26. He says studies on

face mask effectiveness published between 2008 and 2020 demonstrate that masks

are ineffective in combatting the spread of respiratory infections. Id. ¶¶ 34-35, 37.

Mr. Fortuna cites a 2015 study for the proposition that a “cloth facemask, when worn

by a child, may actually increase the risk of transmission of the virus.” Id. ¶ 42. He

says that the School Defendants should have focused on distancing, hand washing,

and other measures because these mitigation strategies are more effective and,

“unlike masking, do not negatively impact the physical or mental wellbeing of

children during school.” Id. at ¶ 30-33.

2. The Impact of Masking Children

Mr. Fortuna submits that “the imposition of facemasks on children inhibits the

child’s ability to learn, as well as imposes serious physical and psychological harm on

the child.” Id. ¶ 38. He cites a recent pre-print, not-yet-peer reviewed, study funded

by the National Institutes of Health and conducted by researchers from Rhode Island

Hospital and Brown University which found that “masks worn in public settings and

in school or daycare settings may impact a range of early developing skills, such as

attachment, facial processing, and socioemotional processing.” Id. ¶ 41 (citing Sean

Deoni et al., Impact of the COVID-19 Pandemic on Early Child Cognitive

Development: Initial Findings in a Longitudinal Observational Study of Child

Health, MEDRXIV [Preprint] (Aug. 10, 2021)). Mr. Fortuna also cites recent studies

suggesting that masking affects babies’ speech and language development and

children’s mental health, id. ¶¶ 43-44, and an article questioning the justification for

“the CDC’s no-end-in-sight mask guidance for the very-low-risk pediatric population,

particularly post-vaccination.” Id. ¶ 45 (quoting Smelkinson et al., The Case Against

Masks at School, THE ATLANTIC (Jan. 26, 2022),

https://www.theatlantic.com/ideas/archive/2022/01/kids-masks-schools-weak-

science/621133/).

3. The Risk of COVID-19 for Children

Because “common influenza is a greater health threat to children than

[COVID-19],” Mr. Fortuna says “that [COVID-19] presents little, if any, health risk

to children.” Id. ¶ 5. Mr. Fortuna suggests “the detrimental effects of forcing his

daughter to wear a mask,” which he says are distraction from learning, increased

blood carbon dioxide levels, susceptibility to pathogens, and the elimination of non-

verbal communication, “outweigh the comparatively slight risk of becoming seriously

ill from [COVID-19].” Id. ¶¶ 6-7.

Mr. Fortuna submits that “the risk of catching and dying from [COVID-19] for

someone under thirty years of age, even without the vaccine[,] is near .001%.” Id. ¶

40. Citing child hospitalization rates3 and data on improved outcomes for vaccinated

individuals, Mr. Fortuna says that “there is no evidence whatsoever that the [D]elta

variant,” cited by the School Defendants as a reason for imposing the masking policy,

“poses an increased risk to children, vaccinated or unvaccinated.” Id. ¶¶ 27-28.

Noting that the School Defendants have not required that all teachers be

vaccinated, Mr. Fortuna submits that the mask mandate was implemented “to

protect and prioritize teachers,” the teachers union, and the Winslow Schools’ receipt

of federal funding “at the expense of the health and education of the children.” Id. ¶¶

64-66.

4. Developments in the COVID-19 Pandemic

On or about May 13, 2021, the CDC determined that masks were not

recommended for those twelve years of age or older who were fully vaccinated. Id. ¶

17. After this statement, the National Education Association, one of the largest

unions in the United States, sent an email to the CDC indicating it was prepared to

criticize the CDC’s decision and calling for updated guidance that masks should be

worn specifically in schools. Id. ¶ 18. The following day, the CDC released updated

masking guidelines for schools indicating universal masking should be enforced. Id.

¶ 19.

3 The CDC reported that for the week of August 7, 2021, the rate of hospitalization for children

5 to 17 with COVID-19 was 0.9 per 100,000. Second Am. Compl. ¶ 28. The CDC acknowledged that

not all of these children were initially hospitalized because of COVID-19; viral testing at admission is

routine, even for patients who have no COVID-19 symptoms. Id.

On July 27, 2021, the CDC released updated guidance, urging increased

COVID-19 vaccination coverage and recommending that people in substantial or high

COVID-19 transmission areas wear a mask in public indoor places regardless of

vaccination status. Christie, A. et al., Guidance for Implementing COVID-19

Prevention Strategies in the Context of Varying Community Transmission Levels and

Vaccination Coverage, 70 MORBIDITY AND MORTALITY WKLY. REP. 1044, 1044 (2021)

(Guidance for Implementing COVID-19 Prevention Strategies); see also What You

Need to Know About Variants, CDC, https://www.cdc.gov/coronavirus/2019-

ncov/variants/delta-variant.html (last updated Apr. 26, 2022; last visited June 12,

2022).

The CDC stated that it based this new guidance on several concerning

developments, including new data indicating that the COVID-19 Delta variant was

more infectious and transmissible compared to other variants, even among

vaccinated individuals. Guidance for Implementing COVID-19 Prevention Strategies

at 1044. On August 4, 2021, the CDC further updated its guidance for schools “to

recommend universal indoor masking by all students, staff, teachers, and visitors to

K-12 schools, regardless of vaccination status.” Operational Guidance for K-12

Schools and Early Care and Education Programs to Support Safe In-Person Learning,

CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-

guidance.html (last updated May 27, 2022; last visited June 12, 2022).

After the CDC updated its guidance and before the start of the 2021-2022

school year, the MDOE and Maine CDC recommended that school districts follow the

national CDC’s latest masking recommendations. See Priority Notice: Health and

Safety Guidance for PreK-12 Schools in Maine, ME. DOE,

https://mailchi.mp/maine/cu5lemq6y0-1323560?e=b687676d5b (last visited June 12,

2022) (“[O]ur state will continue to adhere to the US CDC’s ‘Guidance for COVID-19

Prevention in K-12 Schools’”); Frequently Asked Questions Regarding COVID-19 and

Return to School, ME. DOE, at 3,

https://www.maine.gov/doe/sites/maine.gov.doe/files/2021-

08/Q%26A%20webinar%207.29.21.pdf (published Aug. 2, 2021; last visited June 12,

2022) (“Maine CDC recommends that school district[s] follow the U.S. CDC

recommendation that all students, staff, teachers, and visitors wear a mask while

indoors in schools”). The Maine CDC and MDOE further instituted different COVID-

19 contract tracing quarantine requirements for schools without mandatory masking

policies in place. Standard Operating Procedures (SOP): Investigation of COVID-19

in Pre-K-12 Schools, ME. CDC, at 7

https://www.maine.gov/doe/sites/maine.gov.doe/files/inlinefiles/SOP%20Investigatin

g%20Outbreaks%20in%20K-12%20Schools%2010%2029%202021.docx.pdf (revised

Oct. 29, 2021) (“Close contacts must quarantine for 10 days from last COVID-19

exposure from school and school activities . . . [unless] the school has a mandatory

masking policy. If so, then an exposed classroom student does not need to quarantine

from regular school-day activities when the student close contact was at least 3 feet

from an infected student”).

In February 2022, the CDC released a new “COVID-19 Community Levels” tool

that classifies the COVID-19 risk as low, medium, or high in individual counties “to

help communities decide what prevention steps to take based on the latest data.”

COVID-19 by County, CDC, https://www.cdc.gov/coronavirus/2019-ncov/your-

health/covid-by-county.html (updated Mar. 24, 2022; last visited June 12, 2022) (CDC

Community Levels Tool). In its new recommendations, which it specifically extended

to the school setting, the CDC revised its guidance to recommend imposing mask

mandates when COVID cases and hospitalizations are high on a county-by-county

basis. COVID-19 Community Levels, CDC, https://www.cdc.gov/coronavirus/2019-

ncov/science/community-levels.html (updated Mar. 24, 2022; last visited June 12,

2022) (recommending indoor mask use “regardless of vaccination status . . . in K-12

schools and other indoor community settings” when local case levels are high).

At this stage in the pandemic, Maine health officials are revisiting the

necessity of mask mandates and some school districts are making mask-wearing

optional. Second Am. Compl. ¶¶ 48-49. In February 2022, the Governors of New

Jersey, Connecticut, Nevada, Rhode Island, and Pennsylvania announced that their

respective states would be ending statewide school mask mandates. Id. ¶¶ 50-51, 54,

56-57. In Delaware, the Governor recently allowed the statewide Indoor Mask

Mandate to expire. Id. ¶ 52. The Massachusetts Department of Elementary and

Secondary Education announced plans to lift its mask mandate on February 28, 2022.

Id. ¶ 53. The Oregon Health Authority also announced that indoor mask

requirements in Oregon would be lifted no later than March 31, 2022. Id. ¶ 55.

D. Winslow Public Schools’ Mask Mandate

On August 1, 2021, Superintendent Thiboutot posted a message on the

Winslow School Department website to notify parents that:

One of the biggest changes the CDC has strongly recommended calls for

universal indoor masking for all teachers, staff, students, and visitors to

K-12 schools, regardless of vaccination status. Children should return

to full-time in-person learning in the fall with layered prevention

strategies in place.

. . .

The administrative team along with the school nurses and feedback

from our Medical Provider met again this week to discuss the revised

CDC recommendations. A unanimous decision was made to recommend

to the board that we enact the CDC recommendations as a component

of our return to school plan.

Id. ¶ 20.

On August 16, 2021, the School Committee implemented the CDC

recommendations by enacting a mandatory mask policy requiring all students,

regardless of vaccination status, pre-existing medical condition, classroom size, or age

to wear masks while indoors at school. Id. ¶¶ 3, 21. For any medical procedure,

parental consent for a minor is obtained. Id. ¶ 47. In the context of the School

Committee’s mask mandate, no such consent was allowed by allowing the parents to

choose whether to require their child to wear a mask. Id. ¶ 47. According to

Superintendent Thiboutot’s August 1, 2021, message to the school community, the

sole basis for the August 16 mask mandate was the emergence of the Delta variant.

Id. ¶ 27.

On Monday, March 7, 2022, the Winslow School Committee voted to make

masks optional in the Winslow Public Schools based on updated guidance from the

MDOE and public health authorities. Resp. to Ct.’s Order at 1 (ECF No. 30). The

new optional mask policy took effect on March 9, 2022. Id. Before or around March

2022, other Maine towns and schools voted to make mask wearing optional for

children. Second Am. Compl. ¶¶ 48-49, 50-57.

Looking ahead, as the Winslow School Committee has indicated it follows CDC

guidance and as the CDC previously modified its recommendations on universal

masking, from allowing vaccinated students to remove masks to recommending

universal masking regardless of vaccination status, there is a demonstrated

probability that Winslow School Committee will reimpose the same or similar mask

mandate in the future in accordance with public health guidance. Id. ¶ 69.

III. THE PARTIES’ POSITIONS

A. The School Defendants’ Motion to Dismiss

The School Defendants urge the Court to dismiss Mr. Fortuna’s Second

Amended Complaint for failure to state a claim. Defs.’ Mot. at 1. They say Mr.

Fortuna seeks to have this Court overturn the decision of the Winslow School

Committee simply “because he does not agree with [the masking policy]” or with the

recommendations of the CDC, Maine CDC, and the MDOE. Id. at 2. They contend

that Mr. Fortuna’s complaint “relies on outdated studies” on mask effectiveness,

“ignores data establishing that although the majority of children do not develop the

worst of COVID-19’s symptoms, a certain percentage have died or been severely

impacted,” and makes inconsistent references to CDC guidance. Id. at 2 & n.2.

The School Defendants reason that “the evidence from scientific and medical

experts is overwhelming that mask use indoors – particularly in the school setting

where a large percentage of the population is too young to be vaccinated – is an

effective means of protecting against infection.” Id. at 2-3. Citing the Supreme

Court’s statement that “[i]t is not the role of the federal courts to set aside decisions

of school administrators” in their informed discretion and judgment, the School

Defendants note that “this Court need not rule on the efficacy of mask use in order to

resolve this case.” Id. at 3 (quoting Wood v. Strickland, 420 U.S. 308, 326 (1975)).

They insist that Mr. Fortuna “has pled no facts – nor could he – that could turn the

School Defendants’ decision to mandate masks for the protection of students, staff

and the community into a violation of his constitutional rights.” Id.

The School Defendants first urge the Court to apply Jacobson v.

Massachusetts, 197 U.S. 11 (1905), to Mr. Fortuna’s substantive due process

challenge to a public health restriction. Id. at 11 (citing recent federal court cases

applying Jacobson to COVID-19 vaccination requirements and mask mandates). The

School Defendants submit that, as in Jacobson, the Winslow mask mandate “cannot

be affirmed to be, beyond question, in palpable conflict with the Constitution” nor

“can anyone confidently assert that the means prescribed by the State to that end has

no real or substantial relation to the protection of the public health and the public

safety.” Id. at 12 (quoting Jacobson, 197 U.S. at 31). Alternatively, “even if Jacobson

does not apply,” the School Defendants argue this due process challenge “is still only

subject to rational basis review,” despite Mr. Fortuna’s insistence that the mask

mandate interferes with his fundamental right to raise his child and make medical

care decisions for her. Id.

The School Defendants acknowledge the line of Supreme Court cases

recognizing the fundamental rights of parents and the liberty to refuse medical

treatment but maintain that the Second Amended Complaint “fails to plausibly plead

that the mask policy directly infringes on either of those rights.” Id. at 12. Applying

rational basis review, the School Defendants contend that “[p]reventing the

transmission of COVID-19 is, at the very least, a legitimate government purpose.”

Id. at 13 (citing Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)

(“Stemming the spread of COVID-19 is unquestionably a compelling interest . . ..”)).

They reason that “CDC guidance and the studies and data upon which that guidance

is based show that universal masking is rationally related to this goal.” Id. The

School Defendants further insist that the mask mandate “easily passes muster under

rational basis review” because “decreasing the risk that entire classes will be required

to move to remote learning every time there is an exposure in a classroom is a

legitimate governmental purpose, and given the MDOE rules, a universal mask

mandate is rationally related to this goal.” Id.

The School Defendants go on to address the standard applicable to Mr.

Fortuna’s claims against Superintendent Thiboutot “as Superintendent” and “in his

individual capacity.” Id. “[T]o the extent Mr. Thiboutot is sued in his official

capacity,” they reassert their previous arguments to urge the Court to dismiss the

claims against him. Id. at 14. Otherwise, the School Defendants argue that the

Second Amended Complaint “fails to state a plausible substantive due process claim

against” Superintendent Thiboutot in his personal capacity. Id. They reason that

Superintendent Thiboutot’s public message to parents on the School Department

website “plainly does not rise to the level of conscience shocking because it does not

even come close to being truly outrageous, uncivilized, and intolerable . . . nor does it

infringe upon any fundamental right.” Id. (internal citations and quotations

omitted). The School Defendants note that the Second Amended Complaint “does not

allege any other facts specific to Mr. Thiboutot.” Id.

Next, the School Defendants urge the Court to take judicial notice pursuant to

Federal Rule of Evidence 201 of facts related to the COVID-19 pandemic and school

mask mandates from the websites of the CDC, the Maine CDC, and the MDOE. Id.

at 4 (citing decisions in which the First Circuit and other circuit courts took judicial

notice of information from government websites and other government sources).

The School Defendants go on to recite Maine’s COVID-19 infection,

hospitalization, and death rates, emphasizing that “[a]s of October 18, 2021, Maine

CDC data showed that 20,897 Mainers between the ages of 0-19 had contracted the

COVID-19 virus.” Id. at 5. Quoting the CDC’s warning that “[s]ignificant secondary

transmission of SARS-CoV-2 infection has occurred in school settings when

prevention strategies are not implemented or are not followed,” the School

Defendants state that young people can catch, become ill with, and spread COVID-

19. Id. In particular, they recount the CDC’s October 2021 guidance for minimizing

risk of transmission in the K-12 setting, noting that Mr. Fortuna “acknowledges the

efficacy of many of these measures.” Id. at 6. The School Defendants point to the

CDC’s mask efficacy studies and past recommendations promoting universal indoor

masking, regardless of vaccination status, to reduce COVID-19 transmission,

particularly in light of the highly virulent and transmissible Delta variant. Id. at 5-

6.

The School Defendants emphasize that the MDOE recommended school

compliance with CDC guidance, and established stricter quarantine requirements for

students exposed to a positive case in schools without mandatory masking than in

schools with such a policy. Id. at 7-8. They also explain that under the MDOE

protocol “schools without mask mandates will be required to move groups of students

or, in some circumstances, entire classrooms to remote learning for ten days any time

there has been an exposure, whereas those with mask mandates will not.” Id. at 8.

The School Defendants urge that, because they acted pursuant to national and

local public health guidance, Mr. Fortuna cannot meet the standard to sustain his

substantive due process claim against a state government actor. Id. at 10. According

to the School Defendants, the Second Amended Complaint merely alleges that

Winslow Public Schools followed CDC guidance to adopt a mask policy, “consistent

with the conduct of public and private entities throughout the State of Maine and

across the country,” which “does not even come close to meeting the conscience

shocking standard.” Id.

Addressing Mr. Fortuna’s suggestion that the CDC only updated its masking

guidelines in anticipation of criticism from the National Education Association, they

argue this “speculative allegation must give way to the judicially noticeable”

information from the CDC “which show[s] that the CDC changed its guidance based

on several ‘concerning developments’ resulting from the spread of the Delta variant.”

Id. at 10-11. Even crediting Mr. Fortuna’s allegation that the National Education

Association influenced the CDC’s assessment, the School Defendants submit “that

would not make it any less reasonable for the Winslow School Department to rely on

the CDC’s recommendations in formulating its mask policy.” Id. at 11.

The School Defendants call Mr. Fortuna’s “allegation that the COVID-19 virus

does not pose a significant health threat to children [] untrue and implausible,”

defending their mask policy as “plainly proportional to the risk posed to students by

the COVID-19 virus.” Id. They conclude by reiterating that Mr. Fortuna has failed

to state a claim against any of the named defendants upon which relief may be

granted. Id. at 14.

B. Scott Fortuna’s Opposition

Mr. Fortuna insists that his claim that the School Defendants’ mask mandate

infringed upon his fundamental right to parent must survive this motion to dismiss.

Pl.’s Opp’n at 5.

First, Mr. Fortuna urges the Court to apply the Supreme Court’s substantive

due process standard for legislative branch actions to the School Defendants rather

than the higher “shock the conscience” threshold applicable to executive actions. Id.

at 6. According to Mr. Fortuna, the Winslow School Committee and Winslow Public

Schools are “composed of a group of elected officials” and are thus “[l]egislative bodies

of local school administrative units.” Id. (citing 20 M.R.S. § 2(2)).

Mr. Fortuna goes on to argue that Jacobson is distinguishable because here

his “fundamental right to parent his child is being infringed,” and furthermore, the

Jacobson Court “applied what was in essence rational basis review to deem [a

Massachusetts vaccine law] constitutional.” Id. at 9-10 (citing Roman Cath. Diocese,

141 S. Ct. at 70-71 (Gorsuch, J., concurring)). He also reasons that, unlike the law in

Jacobson, the mask mandate at issue here lacks any alternatives or exceptions. Id.

at 10.

Mr. Fortuna submits that his burden is to show that the School Defendants’

conduct infringed upon his protected rights, asserting that “[a]s the mask mandate

implicates a fundamental right, it must be subjected to strict scrutiny.” Id. at 8. He

argues that cases applying rational basis review to equal protection classifications

are inapplicable because he “is not alleging the mask mandate treats him or his

daughter differently.” Id. at 10 n.1. Mr. Fortuna asserts that the mask mandate,

“without any substantive or temporal limitations, and without any alternatives,”

infringes on his “fundamental right to parent his child by making the medical decision

that Mr. Fortuna’s child needs to wear a mask for eight hours a day.” Id. at 7-8.

Mr. Fortuna argues that the School Defendants’ mask policy “cannot be

rationally related to a legitimate Government interest” to survive rational basis

review “because numerous, peer-reviewed studies overwhelmingly support the

conclusion that facemasks are ineffective at preventing transmission” of COVID-19.

Id. at 10-11. He alleges that “children are at low risk” of contracting COVID-19 and

“do not play a significant role in the spread of the virus,” and moreover, that masks

are ineffective at filtering out virus particles and “actually increase the risk of

children becoming sick.” Id. at 11. He also asserts that “forcing children to wear

masks 8 hours a day inhibits breathing and leads to the collection of dangerous

impurities,” has “negative health and societal ramifications,” and “adversely affects”

student performance and communication. Id.

Mr. Fortuna argues that “[g]iven the CDC’s conclusion that the common flu is

a greater threat to children than COVID-19, the [School Defendants’] policy at issue

does not serve a compelling government interest.” Id. at 8. “Moreover, even if the

government had a legitimate interest in preventing coughs, sneezes and runny noses,

the subject policy is not remotely narrowly tailored to achieve this end because it has

no end date, no exceptions or alternatives, and may be accomplished by other means”

such as social distancing. Id. at 8-9. Mr. Fortuna argues that Superintendent

Thiboutot and the School Defendants were motivated by the “substantial funding”

that they receive from the federal government to make the conscious-shocking choice

to “prioritiz[e] federal dollars at the expenses of children’s welfare.” Id. at 12-13.

Mr. Fortuna concludes by insisting Superintendent Thiboutot’s conduct

implicates his fundamental rights for the same reasons explained as to the other

School Defendants. Id. He asserts that Superintendent Thiboutot “played a crucial

role in drafting and implementing the mandatory mask policy,” despite a lack of

precedent for such measures, with conscious-shocking disregard for “data showing

the harmful effects of masking children.” Id. Because “the mandatory mask policy

is not based upon scientific data” but rather was “implemented to satisfy a powerful

[teachers] Union[,]” Mr. Fortuna says “Mr. Thiboutot’s action in blindly following the

CDC’s misguided policy amounts to more than mere negligence” to meet the

“conscience shocking” standard. Id. at 12.

In his February 24, 2022, request to amend, Mr. Fortuna noted that “[s]ince

the filing of the First Amended Complaint, there have been significant developments

across the Count[r]y in regards to mask mandates for school children” which he urges

the Court to consider in resolving the School Defendants’ motion to dismiss. Pl.’s Mot.

to Amend ¶¶ 4, 8 (collecting news articles regarding the lifting of mask mandates in

other states, cities, and school districts).

C. The School Defendants’ Reply

The School Defendants maintain that “[s]temming the spread of COVID-19 is

unquestionably a compelling interest,” Defs.’ Reply at 1 (quoting Roman Cath.

Diocese, 141 S. Ct. at 67), and that their “mask policy is both reasonable and

rationally related to this goal.” Id. They submit that Mr. Fortuna’s opposition to

their motion to dismiss “relies on facts not pled in the First Amended Complaint and

vague legal arguments unsupported by any relevant authority.” Id.

First, the School Defendants address Mr. Fortuna’s argument that they

represent a legislative body not subject to the “shocks the conscience” standard for

executive actions. Id. at 1-2. They note that he “challenges a school policy, not a

statute enacted by the Maine legislature,” and insist he “fails to plausibly plead any

conscious shocking conduct” in order to sustain his claims. Id. at 2.

Next, the School Defendants argue that the mask policy does not infringe upon

any of Mr. Fortuna’s fundamental rights, and again urge the Court to apply rational

basis review. Id. Citing Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020),

the School Defendants say that the Supreme Court’s recognition of parents’ rights to

“make decisions concerning the care, custody, and control of their children” does not

support Mr. Fortuna’s argument that the mask policy implicates a fundamental right.

Id. at 2-3. The School Defendants reason that “[t]he fundamental right recognized in

Troxel v. Granville, 530 U.S. 57 (2000), is not absolute; rather, it is subject to

reasonable regulation to protect the public interest.” Id. at 3. They submit that “the

only other case that Plaintiff cites in his discussion of the applicable standard . . .

supports the School Defendants’ argument that the mask policy is subject only to

rational basis review.” Id. at 3-4.

In their February 25, 2022, filing in opposition to Mr. Fortuna’s motion to

amend, the School Defendants insist that the new factual allegations in the Second

Amended Complaint “make absolutely no difference to the conscience-shocking

analysis.” Defs.’ Opp’n to Mot. to Amend at 3. The School Defendants submit that

“[t]he fact that some commentators disagree with the CDC’s mask recommendation

and that some states and school districts have chosen to lift mask mandates does not

somehow transform the School Department’s reasonable decision to require students

to wear masks indoors into ‘a brutal and inhumane abuse of official power literally

shocking to the conscience.’” Id. (quoting Harron v. Town of Franklin, 660 F.3d 531,

536 (1st Cir. 2011)).

They contend that Mr. Fortuna’s new “allegations also do not change the level

of scrutiny that applies to [his] substantive due process claim,” which they maintain

is “subject only to either rational basis review or review under the standard set forth

in Jacobson.” Id. The School Defendants conclude that “because the School

Department has articulated a plausible justification for its decision” sufficient under

either standard, “[t]he fact that other school districts have made a different choice is

irrelevant.” Id. at 3-4.

IV. LEGAL STANDARD

Rule 8(a) of the Federal Rules of Civil Procedure requires that a plaintiff’s

complaint contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” FED. R. CIV. P. 8(a)(2). According to the United States Supreme

Court, “the pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6)

provides that a court may dismiss a complaint for “failure to state a claim upon which

relief can be granted.” FED. R. CIV. P. 12(b)(6).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“sufficient facts to show that he has a plausible entitlement to relief.” Sanchez v.

Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009) (citing Iqbal, 556 U.S. at 678).

Deciding a motion to dismiss under Rule 12(b)(6) is a two-step analysis. Schatz v.

Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). First, a court

“isolate[s] and ignore[s] statements in the complaint that simply offer legal labels and

conclusions or merely rehash cause-of-action elements.” Id. Second, a court “take[s]

the complaint’s well-pled . . . facts as true, drawing all reasonable inferences in the

pleader’s favor, and see[s] if they plausibly narrate a claim for relief.” Id. “‘If the

factual allegations in the complaint are too meager, vague, or conclusory to remove

the possibility of relief from the realm of mere conjecture,’ dismissal is proper.” Alston

v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021) (quoting SEC v. Tambone, 597 F.3d 436,

442 (1st Cir. 2010)).

V. DISCUSSION

Mr. Fortuna’s Second Amended Complaint asserts a single claim under 43

U.S.C. § 1983 for violation of his substantive due process rights. The School

Defendants’ motion to dismiss thus turns on whether Mr. Fortuna sufficiently alleged

a violation of a fundamental right warranting strict scrutiny or, alternatively, if strict

scrutiny does not apply, whether the School Defendants have demonstrated that the

mask policy was rationally related to a legitimate government interest to withstand

rational basis review or review under Jacobson.

A. The Applicable Level of Scrutiny

1. The School Defendants’ Mask Mandate Does Not Implicate

A Fundamental Right

Other school mask mandate challenges have attempted to invoke fundamental

rights to privacy, personal autonomy, and bodily integrity, as well as constitutional

protections under the First, Fourth, and Eighth Amendments and under state law.

See, e.g., Donohue v. Hochul, No. 21-CV-8463 (JPO), 2022 U.S. Dist. LEXIS 32011, at

*9 (S.D.N.Y. Feb. 23, 2022). In this case, however, Mr. Fortuna narrowly asserts that

the Due Process Clause of the Fourteenth Amendment extends to his “fundamental

right to make decisions concerning the medical care of his child.” Second Am. Compl.

¶ 59. Pursuant to this argument, he relies on Troxel v. Granville, 530 U.S. 57, to

assert that the School Defendants’ mask policy infringes upon his “fundamental

liberty interest” in directing his child’s upbringing and education. Id. ¶ 2. As the

Ninth Circuit recognized in Parents for Privacy, the Troxel Court “did not address the

extent of parents’ rights to direct the policies of the public schools that their children

attend.” 949 F.3d at 1230-31. Although “the custody, care and nurture of the child

reside first in the parents,” when “[a]cting to guard the general interest in youth’s

well being, the state as parens patriae may restrict the parent’s control,” including

by setting conditions on school attendance. Prince v. Massachusetts, 321 U.S. 158,

166 (1944); see also Parents for Priv., 949 F.3d at 1231. Courts have long recognized

that “the state has a wide range of power for limiting parental freedom and authority

in things affecting the child’s welfare.” Prince, 321 U.S. at 167.

Applying these principles, Mr. Fortuna’s right to parent, as recognized in

Troxel, is not absolute. Whatever rights Mr. Fortuna as a father has over his child,

the plain fact is that his child does not attend school alone. Once his child is in school,

Mr. Fortuna’s parental rights must be measured against the equal rights of other

parents to control their children and the duty of the school to provide a safe

environment for all children, not just Mr. Fortuna’s child, and for others who work or

volunteer in the school. This point is particularly salient during a pandemic, where

his child could contract COVID-19 from others in the school community, and they

could contract it from her. Thus, Mr. Fortuna’s parental rights must be the

beginning, not the end, of the conversation. Faced with potentially conflicting

parental positions, the school district must be the arbiter. Here, Winslow Public

Schools adopted the mask policy and Mr. Fortuna has not shown that the mask policy,

enacted to protect student welfare and the public interest, infringes on a balanced

assessment of his individual parental rights.

Moreover, other courts resolving legal challenges to mandatory school masking

policies have consistently rejected the argument that such policies infringe on a

fundamental parental right. See, e.g., Case v. Ivey, 542 F. Supp. 3d 1245, 1281 (M.D.

Ala. 2021) (“While it is true that the Supreme Court has long recognized that a

fundamental right exists ‘to direct the education and upbringing of one’s children,’ . .

. the court is skeptical that such a right is broad enough in scope to encompass an

interest in keeping one’s children from wearing a mask during a global pandemic”

(quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997))).

Consistent with these courts, the Court therefore rejects Mr. Fortuna’s

argument that the School Defendants’ mask policy violates a fundamental right

warranting the application of strict scrutiny to his due process claim.

B. The Merits of Scott Fortuna’s Due Process Challenge

The Court next considers the merits of Mr. Fortuna’s due process claim under

the otherwise applicable legal standards.

1. Scott Fortuna’s Mask Mandate Challenge Fails Under

Jacobson

a. Due Process and Public Health Measures

This District previously looked to Jacobson v. Massachusetts, 197 U.S. 11

(1905), in determining the standard of review for state public health measures

implemented to quell the spread of COVID-19.4 See, e.g., Doe, 2021 U.S. Dist. LEXIS

197251, at *16-17 & n.12 (applying Jacobson in concluding that a healthcare worker

vaccine mandate promotes the public interest). In Jacobson, the Supreme Court

“applied a deferential standard of review and rejected a Fourteenth Amendment

substantive due process challenge to the law, concluding that the mandatory

vaccination law was constitutional because it had a ‘real [and] substantial relation to

the protection of the public health and the public safety.’” Id. at *16 (alteration in

Doe) (quoting Jacobson, 197 U.S. at 31) (noting that the Jacobson Court did not

specifically address the “scope of an individual’s constitutional rights under the First

Amendment’s Free Exercise Clause in relation to mandatory vaccines”).

The Court follows the lead of the courts of this District and other federal courts

that have applied Jacobson’s deferential standard of review to substantive due

process challenges to vaccination requirements, mask mandates, and other COVID-

19 restrictions. See, e.g., Klaassen v. Trs. of Ind. Univ., 7 F.4th 592, 593 (7th Cir.

2021); Forbes v. Cty. of San Diego, No. 20-cv-00998-BAS-JLB, 2021 U.S. Dist. LEXIS

41687, at *8-9 (S.D. Cal. Mar. 4, 2021); Hopkins Hawley LLC v. Cuomo, 518 F. Supp.

4 The Court acknowledges that the Supreme Court decided Jacobson before the Supreme Court

applied selective rights under the Bill of Rights to the states and before the Supreme Court adopted

tiers of scrutiny for constitutional questions. However, the District Court in Doe effectively addressed

this issue. Doe, 2021 U.S. Dist. LEXIS 197251, at *16 n.12.

3d 705, 710-13 (S.D.N.Y. Feb. 9, 2021) (“[B]ecause Jacobson provides a workable

framework that balances the delicate considerations at play—responding to the

COVID-19 crisis versus maintaining Constitutional liberties—it must govern this

case”); Young v. James, No. 20 Civ. 8252 (PAE), 2020 U.S. Dist. LEXIS 198392, at *7

(S.D.N.Y. Oct. 26, 2020). Although the Supreme Court questioned Jacobson in

Roman Catholic Diocese, 141 S. Ct. at 67, here “no free exercise claim is at issue,” as

Mr. Fortuna challenges a mask mandate under substantive due process, not a vaccine

requirement under the Free Exercise Clause. Hopkins Hawley, 518 F. Supp. 3d at

712-13 (concluding that “because the[] facts [concerning pandemic indoor dining

restrictions] more directly align with those found in Jacobson, the Court . . . must

apply Jacobson’s deferential legal standard”).

Mr. Fortuna’s challenge is not based on religious freedom, and Jacobson

“commands a deferential standard for analyzing Fourteenth Amendment challenges

to generally applicable public health measures like the [substantive due process] one

here.” Harris v. Univ. of Mass., No. 21-cv-11244-DJC, 2021 U.S. Dist. LEXIS 162444,

at *17 (D. Mass. Aug. 27, 2021) (citing Roman Cath. Diocese, 141 S. Ct. at 70

(Gorsuch, J., concurring)) (explaining that Jacobson is “essentially . . . rational basis

review”). Given Jacobson’s applicability to the mask mandate at issue here, the Court

assesses Mr. Fortuna’s challenge under its deferential legal standard for public

health laws.

b. Applying Jacobson to the Winslow Public Schools’

Mask Mandate

Under Jacobson, the Court considers whether the School Defendants’ mask

mandate lacks a “real or substantial relation” to public health and safety, whether

the mask mandate is “beyond all question, a plain palpable invasion of rights secured

by fundamental law,” and whether it is so arbitrary and oppressive as to warrant

judicial interference. See Jacobson, 197 U.S. at 31-38.

The Court first considers whether Mr. Fortuna has plausibly stated a claim

that there is no real or substantial relation between the School Defendants’ mask

mandate and the COVID-19 pandemic. The Court concludes that he has not. Mr.

Fortuna’s pleading does not plausibly state that the mask policy lacks a legitimate

public health purpose or that it is a serious and oppressive invasion of rights under

Jacobson.

First, in 2020, the Supreme Court wrote that “[s]temming the spread of

COVID-19 is unquestionably a compelling interest.” Roman Cath. Diocese, 141 S. Ct.

at 67. Thus, the School Defendants have a “compelling” interest in controlling the

spread of COVID-19 in Winslow Public Schools. See id. The School Defendants

explained at the time, and maintain today, that they crafted a policy to achieve that

interest and give students the benefits of in-person school while minimizing health

risks to the entire school community as the pandemic stretched into the 2021-2022

school year. See Second Am. Compl. ¶¶ 20, 27.

Second, as stated in Mr. Fortuna’s Second Amended Complaint, the School

Defendants’ decision to require masks for all, regardless of vaccination status, was

made in accordance with CDC, Maine CDC, and MDOE guidance as of August 2021,

following consultation with Winslow Public Schools’ nurses and medical provider. Id.

¶ 20. The School Defendants designed their COVID-19 mitigation strategy to be

consistent with CDC guidance “strongly recommend[ing] . . . universal indoor

masking for all teachers, staff, students, and visitors to K-12 schools, regardless of

vaccination status” in order to allow Winslow students “to return to full-time in-

person learning in the fall with layered prevention strategies in place.” Id. ¶¶ 19-20.

Accepting Mr. Fortuna’s critique of masking, regardless of whether the CDC’s

analysis is actually correct, it was not unreasonable for the School Defendants to rely

on guidance published by public health experts and adapt their policies as the state

of the pandemic changed.

Third, the availability and efficacy of vaccines does not undermine the School

Defendants’ decision to require masks regardless of vaccination status. As of June 9,

2022, pursuant to its latest “Community Levels” guidance, the CDC continues to

promote mask use as part of its recommended prevention strategy for counties at

medium or high risk of COVID-19 transmission and in indoor public transportation

settings, and otherwise for immunocompromised individuals, those at high risk for

severe disease, those who cannot be vaccinated, and for those who have been exposed

to COVID-19. See CDC Community Levels Tool.

Although public health experts have, and will continue to, disagree on the best

way to navigate the COVID-19 crisis, that does not undermine the School Defendants’

legitimate purpose, amid the rising case counts in Kennebec County at the start of

the 2021-2022 school year, to enact a measure shown to help prevent disruptive

school closures, particularly given their informed assessment at that time that the

new Delta “wave” posed an increased level of risk to the entire school community,

including to vaccinated individuals. See Jacobson, 197 U.S. at 30 (“It is no part of the

function of a court or a jury to determine which one of two modes was likely to be the

most effective for the protection of the public against disease”). Nor does it eliminate

the legitimate basis for the School Defendants’ decision to rely on the guidance from

public health experts or render their conduct pursuant to that guidance arbitrary and

outrageous.

In light of the School Defendants’ duty to protect their students during this

unprecedented multi-year pandemic, which has involved cycles of increased and

decreased risk from seasonal trends and the rise of new variants, the Court will not

second guess the School Defendants’ assessment that a mask requirement would help

keep their school community safe, especially as the CDC has explicitly stated that it

believes masking to be an effective means of preventing the spread of COVID-19.

Ultimately, the masking requirement is neither arbitrary nor oppressive and is

rationally related to public health efforts to curb the spread of COVID-19 in schools.

c. Scott Fortuna’s Critique of the Mask Mandate

In his Second Amended Complaint, Mr. Fortuna says the legitimacy of any

interest that the School Defendants may have is undermined because “the efficacy of

masks is a current subject of debate amongst experts.” Second Am. Compl. ¶ 63.

Even accepting Mr. Fortuna’s contention that scientists dispute the efficacy and

prudence of masks in the school setting, the Second Amended Complaint does not

dispute the benefits of masking referenced in the School Defendants’ August 2021

announcement explaining their justification for the mandate. Nor does it provide the

full context for many of the studies it cites as undermining the mandate’s legitimacy.

For example, Mr. Fortuna cites a study that found that “masks worn in public

settings and in school or daycare settings may impact a range of early developing

skills, such as attachment, facial processing, and socioemotional processing.” Id. ¶

41 (quoting Sean Deoni et al., Impact of the COVID-19 Pandemic on Early Child

Cognitive Development: Initial Findings in a Longitudinal Observational Study of

Child Health (2021) (COVID-19 and Cognitive Dev.)).

Mr. Fortuna accurately quotes a selected portion of the Deoni study. But the

Deoni study5 examined more than just mask wearing in assessing the combined

adverse effects of the pandemic on children. It concluded that “[w]hat is unclear from

our data . . . is if observed declines or impairments are temporary and will normalize

as employment and school closures are lifted and children return to pre-pandemic

levels of play and interaction, and family financial insecurity and mental health

challenges subside.” COVID-19 and Cognitive Dev. The study emphasized that

school closures, which the mask mandate was designed to help prevent, “may have

dramatically changed the quantity and quality of parent, caregiver, and teacher-child

5 As discussed earlier, on a motion to dismiss, the Court may consider “documents . . .

incorporated by reference” in the Second Amended Complaint. Young, 717 F.3d at 231. As Mr.

Fortuna cited the Deoni article on COVID-19 and child cognitive development, the Court incorporates

the entire article to obtain a complete record of the study findings.

If the Court were to consider the Deoni article just as presented by Mr. Fortuna, without

placing his quote in the context of the full article, Mr. Fortuna’s reference to a selected portion of the

article as support for his claim is incomplete and therefore too conclusory to remove the possibility of

relief from mere conjecture. See Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021).

interaction and stimulation.” Id. It also linked school closures with “reduced social

interaction, increased media consumption, and reduced physical activity” in older

children and the potential for “impaired motor development, motor coordination and

visual processing, language development, and socioemotional processing” in younger

children. Id.

As the Court’s analysis of the Deoni article suggests, overall Mr. Fortuna

presents contradictory studies and news articles, choosing to trust some public health

recommendations while discounting others. See Forbes, 2021 U.S. Dist. LEXIS

41687, at *13 (plaintiff’s conclusory “contentions disputing the scientific basis for the

Mask Rules are simply not enough to state a plausible cla[i]m that the rules are not

rationally related to a legitimate government interest”); Hopkins Hawley LLC, 2021

U.S. Dist. LEXIS 24580, at *7 (plaintiffs’ assertions that a COVID-19 policy “went

against the grain of scientific proof” did not satisfy the high bar for the “shock the

conscience” standard). The Court concludes that Mr. Fortuna’s allegations related to

the science and public health policy behind masking do not refute the legitimacy of

the School Defendants’ actions under Jacobson and are insufficient to sustain his due

process claim.

d. Other Communities’ Handling of the Pandemic After

the Delta and Omicron Variant Waves

The Second Amended Complaint highlights the fact that other states and

school districts have rolled back mask mandates, both before and contemporaneously

with the School Defendants’ decision to lift theirs. This reality, however, does not

render the School Defendants’ conduct arbitrary and unreasonable, nor “conscious-

shocking.”

The Court notes that many of the announcements lifting statewide mask

mandates that Mr. Fortuna cites took the position that, at this stage in the pandemic,

masking policy is ideally left to the discretion of local decision makers—like the

School Defendants. Moreover, this does not invalidate the School Defendants’

legitimate decision to follow public health guidance earlier in the pandemic and at

the start of the school year. For example, as Mr. Fortuna points out, Connecticut,

Massachusetts, and New Jersey lifted statewide school mask mandates, while

continuing to recommend masking in certain circumstances, in order to leave the

decision up to superintendents and school boards who can be responsive to

community conditions in real time. See Second Am. Compl. ¶¶ 50-57; Press Release:

Statewide School Mask Requirement Will Be Lifted February 28, MASS. DOE, (Feb. 9,

2022), https://mailchi.mp/doe.mass.edu/press-releasestatewide-school-mask-

requirement-will-be-lifted-february-28. The Governor of Rhode Island explained that

lifting the statewide mandate would “empower[] schools . . . to implement the health

and safety measures best suited to the needs of their communities.” Second Am.

Compl. ¶ 56; Governor McKee, RIDOH Announce Plan to Lift Statewide School Mask

Mandate and Allow Masking Decisions to be Determined at the Local Level, State of

R.I. Governor Dan McKee, (Feb. 9, 2022), https://governor.ri.gov/press-

releases/governor-mckee-ridoh-announce-plan-lift-statewide-school-mask-mandate-

and-allow.

2. The School Defendants’ Mask Mandate Is Not “Conscious-

Shocking” and Withstands Rational Basis Review

Even if Jacobson did not apply, the Court would apply traditional rational

basis review to Mr. Fortuna’s claim. Under this standard, Mr. Fortuna would have

the burden to demonstrate that the alleged “governmental infringement is not

rationally related to a legitimate government purpose.” Mulero-Carrillo v. Román-

Hernández, 790 F.3d 99, 107 (1st Cir. 2015). Mr. Fortuna maintains that “[g]iven the

CDC’s conclusion that the common flu is a greater threat to children than [COVID]-

19,” the School Defendants have no “interest in preventing coughs, sneezes and runny

noses.” Second Am. Compl. ¶ 61. Even if they did, he submits that that mask

mandate is not narrowly tailored because “it has no end date, no exceptions, and may

be accomplished by other means” such as social distancing. Id. ¶ 62. He says that

“[w]ith the benefits of masking largely only providing a psychological benefit or a

feeling of being protected” and “the harm done to [his] fundamental rights in addition

to the actual risks of causing psychological harm to the child and impairing the child’s

ability to learn,” the mask mandate cannot withstand “even rational basis review.”

Id. ¶ 68.

Accepting the allegations in his Second Amended Complaint, Mr. Fortuna still

fails to plead a viable substantive due process claim. See Hopkins Hawley, 518 F.

Supp. 3d at 712. “[A]n abuse of power practiced by the executive branch of state

government,” which includes Maine school boards and school officials, “sinks to a level

cognizable under the Due Process Clause only when it is so extreme and egregious as

to shock the contemporary conscience.” DePoutot v. Raffaelly, 424 F.3d 112, 118 (1st

Cir. 2005). Despite Mr. Fortuna’s insistence otherwise, the School Defendants’

actions are subject to this heightened “shock the conscience” threshold. See

Wadsworth v. Me. Sch. Admin. Dist. 40, No. 2:19-cv-00577-JAW, 2020 U.S. Dist.

LEXIS 183589, at *17-18 (D. Me. Oct. 2, 2020) (applying the “shocks the conscience”

standard to the conduct of a Maine school district and school officials); Abdisamad v.

City of Lewiston, No. 2:19-CV-00175-LEW, 2019 U.S. Dist. LEXIS 122222, at *4-5 (D.

Me. July 23, 2019), aff’d, 960 F.3d 56 (1st Cir. 2020) (same). In addition to Mr.

Fortuna’s failure to demonstrate that the mask mandate implicates a fundamental

right, the allegations in the Second Amended Complaint do not plausibly demonstrate

that the School Defendants’ conduct in enacting the mask requirement rose to the

“conscience-shocking” level. See Lloyd v. Sch. Bd. of Palm Beach Cnty., No. 9:21-cv-

81715-KMM, 2021 U.S. Dist. LEXIS 210628, at *29 (S.D. Fla. Oct. 29, 2021)

(collecting cases in which federal courts “have found that mask mandates are not

‘conscience-shocking in a constitutional sense’”); Forbes, 2021 U.S. Dist. LEXIS

41687, at *12 (“Plaintiff does not plausibly state the Mask Rules shock the

conscience”). Simply put, there is nothing “conscience-shocking” about a school

district following the public health recommendations of the federal CDC, state CDC,

and state DOE during an unprecedented pandemic.

3. Summary

The School Defendants acted pursuant to broadly accepted public health

guidance encouraging masks in the school setting to minimize the spread of COVID-

19. “Given the many reliable sources that establish masks as an effective means to

stop the spread of COVID-19,” Mr. Fortuna’s studies and news stories “at most

establish[] scientific uncertainty and a debate between experts in the face of an

ongoing public health crisis.” L.T. v. Zucker, No. 1:21-CV-1034 (LEK/DJS), 2021 U.S.

Dist. LEXIS 196906, at *27-28 (N.D.N.Y. Oct. 13, 2021).

As communities navigate and adapt to the unprecedented pandemic, courts

“must afford substantial deference to state and local authorities about how best to

balance competing policy considerations.” Roman Cath. Diocese, 141 S. Ct. at 74

(Kavanaugh, J., concurring). Local decision makers must be allowed to rely on

recommendations given by reputable authorities such as state and federal public

health experts.

Mr. Fortuna expresses his concern about the pandemic’s impact on his child’s

social development and emotional health, and the Court appreciates his sense of

parental duty to his view of the best interests of his child. Even so, the School

Defendants’ policy was designed to ensure, as much as possible, that students,

including but not limited to Mr. Fortuna’s child, will be able to learn in school, with

access to their peers, activities, routines, and support systems, five days a week. The

School Defendants reasoned that a mask policy, as recommended by the CDC, Maine

CDC, and MDOE, would be an effective tool to prevent disruptive school closures,

which place an enormous strain on families in this already challenging school year.

“Stemming the spread of COVID-19 is unquestionably a compelling interest,”

Roman Cath. Diocese, 141 S. Ct. at 67, and Court concludes that the School

Defendants’ mask policy is both reasonable and rationally related to that goal and

does not “shock the conscience.” Mr. Fortuna failed to meet the Jacobson or rational

basis standard applicable to his substantive due process claim.

VI. CONCLUSION

Accordingly, the Court GRANTS the School Defendants’ Motion to Dismiss and

Renewed Motion to Dismiss Scott Fortuna’s Second Amended Complaint for Failure

to State a Claim (ECF Nos. 21, 38) and DISMISSES without prejudice Scott Fortuna’s

Second Amended Complaint (ECF No. 36).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 13th day of June, 2022.