“[O]ther courts have found that the mere allegation of a constitutional infringement in and of itself does not constitute irreparable harm.”
How later courts described this case
- “[O]ther courts have found that the mere allegation of a constitutional infringement in and of itself does not constitute irreparable harm.”
- “No one denies . . . that it extends to all matters affecting the public health or the public morals.”
- police power entitles the legislature to enact measures “for the protection of the public morals, the public health, or the public safety.”
- Massachusetts state civil rights act incorporates federal analysis
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------x
JANE DOE on behalf of herself and
h er minor child, SARAH DOE, MEMORANDUM AND ORDER
Plaintiff, Case No. 2:21-5012-FB-SIL
-against-
FRANKLIN SQUARE UNION FREE
SCHOOL DISTRICT, and MARY
BASSETT, in her official capacity as
Commissioner of the New York State
Department of Health
Defendants.
------------------------------------------------x
Appearances:
For the Plaintiff: For the Defendants:
SUJATA S. GIBSON ADAM I. KLEINBERG
Gibson Law Firm, PLLC Sokoloff Stern LLP
407 N. Cayuga Street, Suite 201 179 Westbury Avenue
Ithaca, New York 14850 Carle Place, New York 11514
ROBERT F. KENNEDY, JR. TODD ALAN SPIEGELMAN
MARY HOLLAND Office of the Attorney General
Children’s Health Defense State of New York
28 Liberty Street, 17th Floor
New York, New York 10005
BLOCK, Senior District Judge:
Plaintiff brings this action on behalf of herself and her minor daughter
against defendants Franklin Square Union Free School District (the “School
District”) and the Commissioner of the New York State Department of Public
Health in her official capacity (the “Commissioner”)1 alleging that the
Commissioner’s regulation requiring that New York State’s school students wear
masks (the “Mask Mandate”) violates their constitutional substantive due process
rights.
Plaintiff has moved for a preliminary injunction to prohibit defendants from
enforcing the Mask Mandate. That motion is denied as a matter of law based on the
parties’ submissions. But plaintiff also has two state law claims, and the Court has
ordered a factual hearing as to whether preliminary injunctive relief should be
fashioned based on those claims.
I. Background
The web that has entangled our nation in dealing with the myriad challenges
spawned by the COVID-19 pandemic has ensnared our children. Now that the new
school year has begun, the debate rages as to whether they should be required to be
masked while attending school. Our country is being challenged to rationally decide
how to best protect the health of our children in uncharted waters that make all of us
medical guinea pigs. Indeed, there is no conclusive study as to either the short-term
or long-term effects that mask wearing could have on children.
1 Pursuant to Federal Rule of Civil Procedure 25(d), Mary Bassett, the
Commissioner of Health, has been substituted for former Commissioner Howard
Zucker.
Nonetheless, for the following reasons, I am constrained to deny plaintiff’s
request for preliminary injunctive relief based on her alleged constitutional
violations. However, since the Court is sensitive to the concerns that parents have
for their children, it believes that a full exploration of the national mask mandate
dynamics at play and the reach of the Commissioner’s actions is warranted, as well
as the reasons why the Court, sua sponte, ordered a hearing on the state law claims
to determine whether they might separately merit preliminary injunctive relief.
The logical starting point is to comprehend the balance struck by our
founding fathers between the powers of the federal government and those of the
states, which informs us as to which level of government they decided should be
responsible for enacting laws affecting our country’s health and safety, and the
standards that judges must employ in assessing the constitutionality of those laws.
A. The Tenth Amendment and the Police Power
The Tenth Amendment reads:
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or
to the people.
U.S. Const. Am. X.
By contrast, unlike those of the federal government, the States’ powers do
not flow from the Constitution, and they do not need Constitutional authorization
to act. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535-36 (2012): “Our
cases refer to this general power of governing, possessed by the States but not by
the Federal Government, as the ‘police power.’” Id.
The police power has traditionally encompassed “the authority to provide for
the public health, safety, and morals . . . .” Barnes v. Glen Theatre, Inc., 501 U.S.
560, 569 (1991). The protection of public health is one of the historical
underpinnings of the police power. See, e.g., Stone v. State of Mississippi, 101
U.S. 814, 818 (1879) (“No one denies . . . that it extends to all matters affecting the
public health or the public morals.”); Mugler v. Kansas, 123 U.S. 623 (1887)
(police power entitles the legislature to enact measures “for the protection of the
public morals, the public health, or the public safety.”).
In the landmark Slaughter-House Cases, the Supreme Court noted that the
police power incorporates the principle “that every person ought so to use his
property as not to injure his neighbors; and that private interests must be made
subservient to the general interests of the community.” 83 U.S. 36, 62 (1872).
Thus, “[the police power] extend[s] to the protection of the lives, health, and
property of the citizens . . . and demand[s] the application of the maxim, salus
populi suprema lex.” Bos. Beer Co. v. State of Massachusetts, 97 U.S. 25, 33
(1877).2
2 “[S]alus populi suprema lex, derived from Cicero, is typically translated as ‘let
the good of the people be the supreme law.’” Stephen R. Miller, Community Rights
and the Municipal Police Power, 55 SANTA CLARA L. REV. 675, 687 (2015).
In 1905, the Supreme Court applied the police power to vaccine mandates in
Jacobson v. Commonwealth of Massachusetts. 197 U.S. 11 (1905). Explicitly
citing the police power, the Court upheld a broad construction of the States’
powers to regulate public health and reaffirmed that public health is the domain of
the states and their legislatures. Id. at 24-25. A matter of public health is “for the
legislative department to determine in the light of all the information it had or
could obtain.” Id. at 30. Consistent with the historical conception of the police
power, the Jacobson court noted that, at least where the police power is concerned,
liberty of the individual is tempered by the common good:
The possession and enjoyment of all rights are subject to such
reasonable conditions as may be deemed by the governing authority of
the country essential to the safety, health, peace, good order, and morals
of the community. Even liberty itself, the greatest of all rights, is not
unrestricted license to act according to one’s own will. It is only
freedom from restraint under conditions essential to the equal
enjoyment of the same right by others. It is, then, liberty regulated by
law.
Id. at 26-27.
Jacobson established a two-part test for judicial review of public health
regulations: Such a regulation should only be struck down if it (1) “has no real or
substantial relation” to public health, or (2) “is, beyond all question, a plain,
palpable invasion of rights secured by the fundamental law.” Id. at 31.
But Jacobson predates judicially established tripartite nuanced tiers of
review to assess a statute’s constitutionality. Under those tiers, if the right
infringed is fundamental or the law relies upon a suspect classification, strict
scrutiny is applied. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17
(1973). Under that standard, a law is upheld only if it is narrowly tailored to a
“compelling state interest.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. 432, 440 (1985). If the law does not infringe upon a fundamental right but
“incidentally” burdens a First Amendment right or implicates a quasi-suspect
classification such as one predicated on gender, intermediate scrutiny would apply.
See United States v. O’Brien, 391 U.S. 367, 376 (1968) (First Amendment); Craig
v. Boren, 420 U.S. 190 (1976) (gender discrimination). Under that standard the law
must also be narrowly tailored but must need be “no greater than is essential” to
the furtherance of an important or substantial governmental interest. O’Brien, 391
U.S. at 376-77. In all other cases, rational basis review is the standard. See San
Antonio, 411 U.S. at 17. Under that standard, the law would be constitutionally
flawed only if it was not “rationally related to a legitimate state interest.” Cleburne,
473 U.S. at 440.
Thus, courts are challenged today with the task of harmonizing Jacobson
and the test it iterates with the tripartite modern standards of review typically used
by courts evaluating constitutional challenges.
Further complicating the challenge is some inconsistency in the Supreme
Court’s substantive due process jurisprudence. In Rochin v. California, 342 U.S.
165 (1952), the defendant swallowed morphine capsules during a search,
whereupon sheriff deputies took him to a hospital to have his stomach pumped to
recover evidence. The Supreme Court held 8-0 that such conduct violated the Due
Process Clause because it “shocks the conscience.” Id. at 209. Three years later, it
articulated the modern formulation of rational basis review in Williamson v. Lee
Optical of Oklahoma, Inc., 348 U.S. 483 (1955). Nevertheless, courts have
continued to invoke the “shocks the conscience” standard in substantive due
process cases. For example, in Maniscalco v. New York City Department of
Education, 2021 WL 4344267 (Sept. 23, 2021) aff’d No. 21-2343 (2d Cir. Oct. 15,
2021),3 Judge Cogan held that a mandatory vaccination order for employees of the
city’s Department of Education was not “so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.” Id. at *3 (quoting Hurd v.
Fredenburgh, 984 F.3d 1075, 1087 (2d Cir. 2021)).
Although the interplay between the “shocks the conscience” standard and
rational basis review is not clear, it appears that the former is generally reserved for
evaluating individual governmental actions not embodied in a statute, regulation or
similarly binding statement of policy. Since the Mask Mandate is a regulation, the
3 The Second Circuit affirmed Judge Cogan’s denial of a temporary restraining
order “for substantially the reasons stated in [his] thoughtful memorandum
decision of September 23, 2021 . . . .” Maniscalco v. N.Y.C. Dep’t of Educ., No.
21-2343 (2d Cir. Oct. 15, 2021).
Court applies the tripartite levels of scrutiny rather than the “shocks the
conscience” standard.
One circuit court has recently applied the more permissive Jacobson
standard. See In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020) (overturned on
unrelated grounds). As stated in Abbott:
[W]hen faced with a society-threatening epidemic, a state may
implement emergency measures that curtail constitutional rights so
long as the measures have at least some real or substantial relation to
the public health crisis and are not beyond all question, a plain,
palpable invasion of rights secured by the fundamental law.
In re Abbott, 954 F.3d at 784.
However, at least in the context of the free exercise clause, the Supreme
Court has rejected Abbott’s embrace of Jacobson. See Roman Catholic Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (applying strict scrutiny). And the
Second Circuit has followed suit. See Agudath Israel of Am. v. Cuomo, 983 F.3d
620, 635 (2d Cir. 2020) (noting that reliance on Jacobson is “misplaced” in the
context of a free exercise challenge to COVID-19 restrictions); see also Hopkins
Hawley LLC v. Cuomo, 518 F. Supp. 3d 705, 712 (S.D.N.Y. 2021) (Crotty, J.)
(“Have those decisions abrogated Jacobson’s relevance in all Constitutional cases
arising from the pandemic? . . . . Or can they be cabined to the free exercise
context in which their holdings arose?”).
Thus, the continued vitality of the Jacobson test is in flux. However, in the
present case, the Court concludes that rational basis review is the applicable
standard; that under that standard the plaintiff’s challenge to the Mask Mandate’s
constitutionality is not viable; and that it also fails under the more deferential
Jacobson test embraced by Abbott.
B. The Mask Mandate
New York’s Mask Mandate, applicable to P-12 school children, is a
convoluted mix of the Commissioner’s regulation; the Commissioner’s
implementing “determination” embracing “[f]indings of necessity,” which adopt as
“requirements” recommendations of the Centers for Disease Control and Prevention
(“CDC”); a Department of Health “interim” guidance document “for classroom
instruction;” and “guidelines” which the State’s Education Department has
promulgated.
1. The CDC
The Supreme Court has recognized that courts should generally defer to “the
reasonable medical judgments of public health officials,” Sch. Bd. of Nassau Cty.,
Fla. v. Arline, 480 U.S. 273, 288 (1987), and the CDC “is the federal agency
responsible for protecting the public health of the country by providing leadership
and direction in the prevention and control of diseases.” Smith v. Potter, 187 F.
Supp. 2d 93, 97 (S.D.N.Y. 2001).
Although recognizing that its guidelines are not dispositive, the Seventh
Circuit has cogently articulated the significance and importance of the CDC’s
COVID-19 pandemic determinations.
[E]ven if not dispositive, implementation (and proper execution) of
guidelines that express an expert agency's views on best practices are
certainly relevant to an objective reasonableness determination. . . .
This is particularly true here, where the CDC Guidelines provide the
authoritative source of guidance on prevention and safety mechanisms
for a novel coronavirus in a historic global pandemic where the public
health standards are emerging and changing.
Mays v. Dart, 974 F.3d 810 (7th Cir. 2020), cert. denied, No. 20-990, 2021 WL
4507625 (U.S. Oct. 4, 2021).
Thus, the CDC has consistently been cited as an acceptable rationale for
government officials during the pandemic. See, e.g., Denis v. Ige, No. CV 21-
00011 SOM-RT, 2021 WL 1911884, at *10 (D. Haw. May 12, 2021) (“In the
midst of a pandemic, it is clearly reasonable for state and local officials to follow
the CDC’s guidance.”); Henry v. DeSantis, 461 F. Supp. 3d 1244, 1255 (S.D. Fla.
2020) (“The Executive Orders explain the Governor used scientifically-based-
research policies from the U.S. Centers for Disease Control. There is nothing
arbitrary about the Governor’s actions. Using science, medicine, and data, the
Governor took reasonable steps clearly related to the legitimate interest in
protecting the public health.”); Beahn v. Gayles, No. GJH-20-2239, 2021 WL
3172272, at *10 (D. Md. July 26, 2021) (“Plaintiffs also do not allege facts
suggesting that the policy lacked a rational basis; indeed, as the Directives were
issued in response to rising COVID-19 infection rates and based on CDC guidance
regarding reopening schools”); Harris v. Univ. of Massachusetts, Lowell, No. 21-
CV-11244-DJC, 2021 WL 3848012, at *6 (D. Mass. Aug. 27, 2021) (“Defendants’
affidavits attest that the Vaccine Policy was supported by, among other things,
CDC guidance and research that the vaccines were safe and effective at reducing
the incidence and severity of COVID-19 . . . .”)
2. The Underlying Regulation
Title 10, Section 2.60 of the Commissioner’s regulations, effective August 27,
2021, provides:
(a) As determined by the Commissioner based on COVID-19 incidence
and prevalence, as well as any other public health and/or clinical risk
factors related COVID 19 disease spread, any person who is over
age two and able to medically tolerate a face-covering may be
required to cover their nose and mouth with a mask or face-covering
when
(1) in a public place and unable to maintain, or when not
maintaining, social distancing; or
(2) in certain settings as determined by the Commissioner, which
may include schools . . . and which may distinguish between
individuals who are vaccinated against COVID-19 and those that
are not vaccinated. The Commissioner shall issue findings
regarding the necessity of face-covering requirements at the time
such requirements are announced.
N.Y. Comp. Codes R. & Regs. tit. 10, § 2.60 (emphasis added). Subdivision (e) of
the regulation provides that “face-coverings shall include, but are not limited to,
cloth masks, surgical masks, and N-95 respirators that are worn to completely
cover a person’s nose and mouth.” Section 2.60 expires 90 days from its filing,
sunsetting on November 25, 2021. See N.Y. Comp. Codes R. & Regs. tit. 10,
§ 2.60, Regulatory Impact Statement.
3. The Findings of Necessity
On the same date that the regulation took effect, the Commissioner
promulgated “[f]indings of necessity” which “demonstrate[d] the necessity for the
implementation of layered prevention strategies, which include[d] face-
coverings/masks.” The Commissioner noted that “CDC research supports that
there are no significant health effects or changes in oxygen or carbon dioxide
levels from mask wear.” There was no separate finding prescinding between
children and the adult population.
Given these findings, the Commissioner issued a number of “masking
requirements” that same day including the following for “P-12 school settings:”
After careful review and consideration of CDC recommendations for
face coverings/masks in school settings, I hereby adopt such
recommendations, imposing them as requirements, where applicable,
until this determination is modified or rescinded. Accordingly,
universal masking of teachers, staff, students, and visitors to P-12
schools over the age of two and able to medically tolerate a face
covering/mask and regardless of vaccination status, is required until
this determination is modified or rescinded. Such requirement is subject
to applicable CDC-recommended exceptions.
New York State Dep’t of Health, Comm’n’s Determination on Indoor Masking
Pursuant to 10 NYCRR 2.60 (Aug. 27, 2021) (emphasis added).
These CDC masking recommendations were hyperlinked by the
Commissioner to the CDC’s document entitled Guidance for COVID-19
Prevention in K-12 Schools, Centers for Disease Control and Prevention (updated
Aug. 5, 2021) (“Prevention Strategies”) https://www.cdc.gov/coronavirus/2019-
ncov/community/schools-childcare/k-12-guidance.html. Thus, they constitute the
CDC’s recommendations that the Commissioner adopted as requirements.
The CDC recognized that “in general, people do not need to wear masks
when outdoors.” In that regard, it recommended “that people who are not fully
vaccinated wear a mask in crowded outdoor settings or during activities that involve
sustained close contact with other people.”
Other than differentiating between indoor and outdoor mask wearing, the
CDC recognized an exception for any masking for “[a] person who cannot wear a
mask, or cannot safely wear a mask, because of a disability as defined by the
Americans with Disabilities Act [“ADA”] (42 U.S.C. 12101 et seq.).”
The CDC recommended in Section 1 of its Prevention Strategies that “all
teachers, staff and eligible students be vaccinated as soon as possible.” However, it
recognized that because “schools have a mixed population of both people who are
fully vaccinated and people who are not fully vaccinated . . . these variations
require K-12 administrators to make decisions about the use of COVID-19
prevention strategies in their schools and are reasons why CDC recommends
universal indoor masking regardless of vaccination status at all levels of
community transmission.”
The CDC recognized, however, that “schools should consider multiple
factors when they make decisions about implementing layered prevention
strategies,” and “[s]ince schools typically serve their surrounding communities,
decisions should be based on the school population, families and students served,
as well as their communities.” Per the CDC’s Prevention Strategies:
The primary factors to consider include:
Level of community transmission of Covid-19.
Vaccination coverage in the community and among students,
teacher and staff.
Strain on health systems capacity for the community.
Use of frequent SARS-CO-V-2 screening testing for students,
teachers, and staff who are not fully vaccinated.
COVID-19 outbreaks or increasing trends in the school or
surrounding community.
Ages of children served by K-12 schools and the associated social
and behavioral factors that may affect risk of transmission and the
feasibility of different prevention strategies.
Therefore, a careful reading of the Commissioner’s regulatory
language and the CDC’s binding “recommendations” tell us that (1) school
children must always wear masks indoors unless they cannot be “medically
tolerate[d];” (2) each school district can adopt a broad swath of additional
“preventive strategies;” (3) outdoor mask wearing is also required “in
crowded outdoor settings or during activities that involve sustained close
contact with other people;” and (4) the school districts must always comply
with the ADA.
4. Guidance for Wearing Masks: Help Slow the Spread
of COVID-19
Defendants attach to their papers a second CDC masking document,
“Guidance for Wearing Masks: Help Slow the Spread of COVID-19” (April 19,
2021) (“April 2021 Guidance for Wearing Masks”).
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-
guidance.html. Possibly because this document applies to the general population,
and not specifically to schoolchildren, the Commissioner’s determination did not
link to it.
Nonetheless, in addition to recommending that masks should be worn by
people two years old or older while in public, it notes that “[m]ost people with
underlying medical conditions can and should wear masks,” and that “[i]f you have
asthma, you can wear a mask.” April 2021 Guidance for Wearing Masks.
However, it recommends that those with asthma “[d]iscuss with [their] healthcare
provider if [they] have any concerns about wearing a mask.” Id.
5. Interim NYSDOH Guidance for Classroom
Instruction in P-12 Schools During the 2021-2022
Academic Year (Sept. 2, 2021)
Defendants also attach to their papers a New York State Department of
Health document providing “guidance” for “the minimum expectations for
classroom instruction in P-12 schools.” New York State Dep’t of Health, Interim
NYSDOH Guidance for Classroom Instruction in P-12 Schools During the 2021-
2022 Academic Year (Sept. 2, 2021). It provides in relevant part:
4. Masks:
a) In accordance with the Commissioner’s determination
issued pursuant to 10 NYCRR 2.60, all students, personnel,
teachers, administrators, contractors, and visitors must wear
masks at all times indoors, regardless of vaccination status.
b) People with medical or developmental conditions that
prevent them from wearing a mask may be exempted from
mask requirements, as documented by a medical provider.
c) People do not need to wear masks when eating, drinking,
singing, or playing a wind instrument; when masks are
removed for these purposes, individuals must be spaced six
feet apart. This may mean that meals cannot be eaten in
classrooms that have been arranged to accommodate shorter
distances between students during instruction time. Students
should not be excluded from in-person learning in order to
meet a minimum distance requirement.
d) All mask requirements must be applied consistently with
any state and federal law (e.g., Americans with Disabilities
Act).
Id. at 2. It also recommends means by which “improved ventilation can make
classrooms more comfortable for students wearing masks.” Id. at 8.
This “guidance,” also embraces the “School Guidance developed by the
[CDC]” and gives the school districts “the authority to decide how to implement that
‘Guidance’ based on local conditions, needs, and input from their Local Health
Department (LHD).” However, “[u]ltimately, the decision to adopt certain
mitigation measures will reside with the local community based on local
circumstances, unless otherwise required in this document or other relevant
guidance, regulations, or orders.” Id.
6. Education Department Guidelines
As explained in its overview, the State Education Department’s Guide
focuses on the implementation of the additional “layered approach to mitigation
strategies.” New York State Dep’t of Health, Comm’n’s Determination on Indoor
Masking Pursuant to 10 NYCRR 2.60 (Aug. 27, 2021). In that regard, it states:
As transmission levels rise, schools should be prepared to take steps
such as increasing physical distancing to minimize transmission.
Schools should plan for all contingencies and be prepared to pivot to
remote instruction as necessary. These plans should be clearly
communicated to students, families, staff, and community stakeholders.
Id. The practical upshot of the Commissioner’s regulation, its cryptic adoption of the
CDC’s recommendations and its Prevention Strategies, the Health Department’s
guidance, and the Education Department’s guidelines is that the school districts and
their administrators do not know what precisely they can or cannot do to implement
the Mask Mandate. For instance, there is no guidance as to how a school district is
to determine if wearing a mask cannot be medically tolerated, either indoors or
outdoors, or how to implement the outdoor mask mandate. But one thing is perfectly
clear: neither the Commissioner’s regulation, nor Prevention Strategies, nor any
Health or Education Department’s guidance or guidelines, render nugatory
mandatory masking for schoolchildren.
As shown by this case, all this has left the School District adrift. At oral
argument, the Court pressed the parties to identify the precise policies at issue.
When asked whether there was a written mask policy, the School District’s counsel
replied “No. . . . [a]ll we have is a reopening plan.” 9.24.21 Tr. at 12.4 This is hardly
an articulation that gives comfort to the Court or the School District’s parents.
Nor has plaintiff managed to do much better. During oral argument, her
counsel described the applicable policy as follows:
Some of the policy is reflected—the school district policy is reflected
in that reopening plan and some of it has been admitted in emails from
superintendents and from the school district papers themselves in this
case. But the specific policy we are challenging as un-Constitutional is
the school district’s decision to substantively review and overrule
treating physicians, and the manner in which they are doing it.
9.24.21 Tr. at 13.
Notwithstanding the Court’s displeasure with the complexities and
uncertainties of New York State’s prolix school Mask Mandate materials, the
Court is tasked with deciding whether the Commissioner’s regulation can
nonetheless pass constitutional muster.
4 9.24.21 Tr. refers to the transcript of the in-court oral argument of September 24,
2021.
C. The Other States
State approaches to mask mandates fall into one of three buckets: (1) states,
such as New York and Massachusetts, that require masks at a statewide level; (2)
states, such as Georgia, that allow localities, municipalities, or school boards to
decide whether mask mandates are appropriate for their community; and (3) states,
such as Texas, that prohibit mask mandates.
1. Bucket 1: Statewide Mandates - Massachusetts
On September 27, 2021, the Massachusetts Department of Elementary and
Secondary Education issued detailed guidelines governing COVID-19 related
safety measures in public schools, including a mask mandate.
The Massachusetts school mask mandate provides, like New York’s, that
masks must be used indoors; however, they are optional outdoors. Similar to New
York, the Massachusetts mandate provides an exemption for medical reasons. And
it specifically provides exceptions for behavioral and pedagogical reasons, such as
a band class. It differs from New York’s mandate in one critical aspect: “if a
school demonstrates a vaccination rate of 80 percent or more of all students and
staff in the school . . . vaccinated individuals in that school would no longer be
subject to the mask requirement.” Massachusetts Dep’t of Elementary and
Secondary Educ., Extension of DESE Mask Requirement (Sept. 27, 2021). The
Massachusetts mask mandate is in place until November 1, 2021, and must be
reviewed by the Commissioner “as warranted by public health data.” Id.
Other than its 80% vaccination rate provision, Massachusetts and fifteen
other states, including New York, essentially fall into this bucket.
2. Bucket 2: The Hybrid Approach - Georgia
In Georgia, the decision whether to require children to wear masks is left to
individual school boards. “At least 56 of Georgia’s 180 traditional school districts
are now requiring masks in at least some schools, up from only a handful of
districts before class started in August. The rules cover nearly 950,000, or about
55%, of Georgia’s 1.7 million public school students.”5
An example of one such district is Baldwin County. Its mandate reads, in
relevant part:
Effective Wednesday, August 11th, masks will be required for students,
staff, and visitors when inside all Baldwin County School District
facilities and on school buses, regardless of vaccination status. Masks
will not be required during breakfast/lunch or outdoor activities. This
decision is based on updated information regarding the spread of the
Delta variant, the increase in the number of positive COVID-19 cases
in Baldwin County, and the change in the community transmission
level from moderate to substantial spread.
5 Jeff Amy, Mask mandates spread in Georgia schools as child cases soar, AP
(Aug. 25, 2021) https://apnews.com/article/health-education-georgia-coronavirus-
pandemic-c157ce983cf256641379d14ae71ff40a.
Some districts, such as Glynn County, attempt to split the difference by
encouraging, but not requiring, masks. Glynn’s operating procedures change
based on the severity of the pandemic in the area. When the virus afflicts less than
or equal to 1% of the school system or 2% of the school, the school is in “Normal
Operations” and “[a]s per CDC and DPH guidance, masks are recommended
inside school facilities.” (emphasis added). When rates exceed 1% in the system
or 2% in the school, masks become required. And when the rates are greater than
or equal to 3% in the system and 5% of the school, in-person instruction is
suspended, and distance learning is implemented.6
Twenty-six states fall into this bucket.
6 Like many school systems that do not require masking, Glynn County must
occasionally revert to remote learning.
But many other districts tried to open their doors as mask-optional.
Some switched positions within days, while others held out for weeks.
During that time, infections leaped. More than 1% of school-age
children in Georgia have tested positive for COVID-19 in the past two
weeks. Children between the ages of 5 and 17 are now more likely than
adults as a whole to test positive for COVID-19. The state Department
of Public Health reported more than 30 infection clusters in schools
statewide, the highest since the epidemic began.
Jeff Amy, Mask mandates spread in Georgia schools as child cases soar,
AP (Aug. 25, 2021) https://apnews.com/article/health-education-georgia-
coronavirus-pandemic-c157ce983cf256641379d14ae71ff40a
3. Bucket 3: Prohibition on Mask Mandates - Texas
Some states not only do not require masks but prohibit school districts from
requiring masks. Texas is one such state. According to executive order GA-38,
enacted on July 29, 2021:
no governmental entity, including a . . . school district . . . may require
any person to wear a face covering or to mandate that another person
wear a face covering.
The order does not cite any scientific evidence in support of its position;
rather, it simply states that it is necessary “to ensure the ability of Texans to
preserve livelihoods while protecting lives.” See GA-38.
Several large school districts elected to defy the order. For example, the
Dallas Independent School District requires masks, and declared:
Governor Abbott’s order does not limit the district’s rights as an
employer and educational institution to establish reasonable and
necessary safety rules for its staff and students. Dallas ISD remains
committed to the safety of our students and staff.7
As of September 21, 2021, twenty-nine school districts have sued the
Governor in an attempt to strike down his anti-mask mandate order.8 And the
7 Brian Lopez, Gov. Greg Abbott’s order banning mask mandates in Texas schools
faces lawsuit, defiance by big-city districts, THE TEXAS TRIBUNE (Aug. 10, 2021)
https://www.texastribune.org/2021/08/09/texas-mask-order-schools/.
8 Joshua Fechter, Gov. Greg Abbott and local officials are fighting several legal
battles over mask mandates. Here’s what you need to know., THE TEXAS TRIBUNE
(Sept. 21, 2021) https://www.texastribune.org/2021/09/21/texas-school-mask-
mandates/.
Governor, in turn, has sued some 15 more. In addition, the U.S. Department of
Education has opened an investigation of the Texas Education Agency, having
determined that Texas’s anti-mask mandate order may be “preventing school
districts in the state from considering or meeting the needs of students with
disabilities.”9
The status of Texas’s order remains in flux, but eight states, including
Florida, have jettisoned mask mandates.
II. The Facts
The following facts are from the Complaint and plaintiff’s submissions. “In
deciding a motion for preliminary injunction, a court may consider the entire
record including affidavits and other hearsay evidence.” Park Irmat Drug Corp. v.
Optumrx, Inc., 152 F. Supp 3d 127, 132 (S.D.N.Y. 2016).
A. The Complaint
Sarah suffers from asthma and “cannot medically tolerate wearing a mask.”
Complaint at ¶ 1. Plaintiff unsuccessfully sought a medical exemption for her
daughter from the school district based principally on a physician’s letter. Id. at
¶¶ 36-37. She also unsuccessfully petitioned the school district to permit Sarah to
9 Brian Lopez, Texas’ ban on school mask mandates draws federal investigation
for possibly violating the rights of students with disabilities, THE TEXAS TRIBUNE
(Sept. 21, 2021) https://www.texastribune.org/2021/09/21/texas-schools-mask-
mandates-education-department/
attend school remotely. Id. at ¶ 55. Finally, she submitted written proposals for
accommodations to the School District to allow Sarah to attend school under
various conditions, including the use of a face shield instead of a face mask and a
guarantee that Sarah’s classrooms have air-conditioning. Id. at 56. The School
District also rejected that proposal.10 Id. at 58.
B. Plaintiff’s Submissions
Plaintiff relies upon several studies and government declarations to bolster
her argument. To support her contention that there is no scientific evidence that
masks are an effective measure against the transmission of COVID-19, she points
to product labeling requirements in FDA Emergency Use Authorizations for face
masks, surgical masks, and respirators. See Gibson Aff. Exs. 1-3. To further that
argument, she cites several scientific studies.
First, Plaintiff points to a study comparing cloth and medical mask usage in
adult healthcare workers, which concluded that rates of influenza infection were
higher in participants who used cloth masks compared to those who used surgical
masks. See C. R. MacIntyre et al., A cluster randomised trial of cloth masks
compared with medical masks in healthcare workers, BMJ OPEN (2015). But that
study had nothing to do with mask use by children or even the general public;
10 On October 15, 2021, the Court held a second hearing in this case. The School
District represented that it has provided Sarah with air-conditioning. See 10.15.21
Tr. at 8.
indeed, its authors recognized that “[f]urther research is needed to inform the
widespread use of cloth masks globally,” and limited its findings to a precaution
that cloth masks were not appropriate in the healthcare setting. Id. at 4.
Next, plaintiff relies on a study published by the CDC evaluating the
effectiveness of various personal protective measures against influenza, including
hand hygiene, respiratory etiquette (for example, the covering of one’s face with a
tissue when sneezing or coughing), and mask usage. Xiao J, Shiu E, Gao H, et al.
Nonpharmaceutical Measures for Pandemic Influenza in Nonhealthcare Settings—
Personal Protective and Environmental Measures, EMERGING INFECTIOUS
DISEASES (2020). The study reported no statistically significant decrease in
influenza transmission with the use of masks. Id. at 11-12. However, the authors of
the study do not represent that face masks in general are inadvisable: indeed, they
note that “[i]n theory, transmission should be reduced the most if both infected
members and other contacts wear masks, but compliance in uninfected close
contacts could be a problem.” Id. at 12. In addition, while the authors did not find a
statistically significant reduction in influenza transmission with use of a mask, they
nonetheless noted that “face masks might be able to reduce the transmission of
other infections and therefore have value in an influenza pandemic when
healthcare resources are stretched.” Id. at 15.
Plaintiff also submits a study published in the New England Journal of
Medicine, examining COVID-19 transmission in U.S. Marine Corps recruits. A.G.
Letizia, A. Ramos, et al SARS-CoV-2 Transmission among Marine Recruits during
Quarantine, 383 New Eng. Journal of Medicine 2407 (2020). That study found that
after two weeks, 2.8% of recruits strictly observing mitigation measures that
included masks tested positive for COVID-19, and 1.7% of those who did not
undertake mitigation measures did. Id. at 2412. But that study tested conditions
that are hardly typical for school students: The recruits were required to undertake
a two-week home quarantine prior to reporting for duty, and upon reporting,
undertook a second, strictly supervised, quarantine. Indeed, the authors noted that
“[o]ther settings in which young adults congregate are unlikely to reflect similar
adherence to measures intended to reduce transmission.” Id. at 2413.
In addition, plaintiff relies on Effectiveness of Adding a Mask
Recommendation to Other Public Health Measures to Prevent SARS-CoV-2
Infection in Danish Mask Wearers, a study in the Annals of Internal Medicine.
Henning Bundgaard et al., Effectiveness of Adding a Mask Recommendation to
Other Public Health Measures to Prevent SARS-CoV-2 Infection in Danish Mask
Wearers: A Randomized Controlled Trial, ANNALS OF INTERNAL MEDICINE (2020).
That study did not find a statistically significant relationship between mask
wearing and lower rates of COVID-19 transmission. However, it only examined
adults and was undertaken “in a setting where mask wearing was uncommon and
was not among other recommended public health measures . . . .” Id. at 5. The
study emphasizes that it did not measure the effect of masking as source control,
and notes that its findings “do not provide data on the effectiveness of widespread
mask wearing in the community in reducing SARS-CoV-2 infections.” Id. at 7.
Plaintiff cites Novel risk factors for Coronavirus disease-associated
mucormycosis (CAM): a case control study during the outbreak in India, for the
proposition that mask usage can cause coronavirus disease-associated
mucormycosis (“CAM”), a fungal disease. Arora, et al., Novel risk factors for
Coronavirus disease-associated mucormycosis (CAM): a case control study during
the outbreak in India, MEDRXIV (2021). However, that study, which was
undertaken in India, could not obtain information about the frequency of
laundering or discarding of masks, which affects fungal growth. It further noted
that CAM is strongly associated with diabetes, poor glycemic control, and systemic
steroid use.
The only scientific material plaintiff cites that deals with mask use in
children is a “mini review” published in Acta Pædiatrica, a peer-reviewed
international medical journal. Martin Eberhart, et al., The impact of face masks on
children – A mini review, 110 ACTA PÆDIATRICA 1778 (2021). This document
notes, however, that there was “a lack of information on the consequences of
children wearing face masks,” and that “[a]s using face masks could be a long-term
preventive measure in the COVID-19 era, further studies are needed, particularly
to explore the impact on pre-existing respiratory problems in children and adults.”
Id. at 1782. The review also acknowledges that “[f]ake news about the negative
effects of face masks has been rising. This has included false reports about face
masks causing an increasing number of illnesses and even deaths among children.”
Id. at 1779. The review cites to only two pediatric studies. The first was of 106
children in Singapore and concluded that masks did not affect a child’s heart rate,
respiratory rate, or oxygen saturation. The second study was of 24 children in the
United Kingdom. It did not collect physiological data—only subjective
information from the children—whose “main complaint was that their face was
hot.” Id. at 1779.
The review also contained eight adult studies, one of which concluded that
“face masks did not cause any clinically relevant changes in oxygen or carbon
dioxide concentration.” Id. at 1781.
Plaintiff’s scientific materials are ill-fitted to her arguments. Most of the
studies deal with mask usage by adults in environments very different from that of
a school—for example, a high-risk hospital ward, MacIntyre, supra, or a locked
down and quarantined Marine training camp, Letizia, supra. The only evidence she
musters with respect to mask wearing by children is a “mini review,” which
acknowledges that there is “a lack of information on the consequences of children
wearing face masks.” Eberhart, supra.
Some of plaintiff’s arguments mirror spurious claims publicly aired by one
of her attorneys, Robert F. Kennedy Jr., and the organization he founded,
Children’s Health Defense (“CHD”), which have been criticized for spreading
false information about vaccines and the pandemic.11 For example, in an article
misleadingly titled “California is Still Masking Children Despite Proven Physical
and Psychological Danger,” CHD represents that “thousands” of scientists decry
mask use in children, which CHD claims causes “cognitive fog,” “depression,”
“despair,” “detrimental psychological harms,” and “dehydration,” while
“lower[ing] children’s oxygen levels in the blood,” “suppress[ing] the immune
system,” and “collect[ing] and coloniz[ing] viruses, bacteria, microbes, and
mold.”12 Reputable sources have debunked these unfounded claims.13
11 See, e.g., Jonathan Jarry, The Anti-Vaccine Propaganda of Robert F. Kennedy,
Jr., McGill Office for Science and Society (Apr. 16, 2021),
https://www.mcgill.ca/oss/article/covid-19-health-pseudoscience/anti-vaccine-
propaganda-robert-f-kennedy-jr.
12 Beth Giuffre, California is Still Masking Children Despite Proven Physical and
Psychological Danger, Children’s Health Defense (Jul. 9, 2021)
https://ca.childrenshealthdefense.org/school/ca-still-masking-children-despite-
proven-physical-psychological-danger/.
13 See, e.g., Dr. Kimberly Frodl, Debunked myths about face masks, Speaking of
Health, Mayo Clinic Health System (Jul. 10, 2020)
https://www.mayoclinichealthsystem.org/hometown-health/speaking-of-
health/debunked-myths-about-face-masks; Keeley LaForme, Myths about Masks
and Other Coronavirus Facial Coverings, Newsroom: Johns Hopkins All
For his part, Kennedy has tirelessly spread a wide variety of pseudoscience,
including anti-vaccine propaganda (both during the COVID-19 pandemic and
before it) and the myth that 5G cellular phone service causes “almost unimaginably
devastating impacts on our health + environment.”14 Although plaintiff parrots
some of the claims raised by CHD, she wisely does not submit them or any of their
references to the risks of masking as one of her exhibits.
C. Defendants’ Submissions
In contrast to the materials submitted by plaintiff, defendants embrace the
findings and recommendations of the CDC. Their submissions all focus on the
reduced spread of COVID-19 in schools with mask mandates.
First, defendants submit the abstract of an article examining COVID-19
transmission in North Carolina public schools based on research conducted by the
ABC Science Collaborative, a public health organization associated with Duke
Children’s Hospital (Jul. 22, 2020) https://www.hopkinsallchildrens.org/ACH-
News/General-News/Myths-about-Masks-and-Other-Coronavirus-Facial-Cov.
14 See Keziah Weir, How Robert F. Kennedy Jr. Became the Anti-vaxxer Icon of
America’s Nightmares, VANITY FAIR (May 13, 2021); Robert F. Kennedy Jr.
(@RobertKennedyJr), TWITTER (Jan. 7, 2020, 7:50PM),
https://twitter.com/robertkennedyjr/status/1214710810921955328?s=21. Indeed, he
has been listed amongst the so-called “Disinformation Dozen,” the top twelve
spreaders of pandemic-related false information on social media. See, e.g.,
Jonathan Jarry, A Dozen Misguided Influencers Spread Most of the Anti-
Vaccination Content on Social Media, McGill Office for Science and Society
(Mar. 31, 2021) https://www.mcgill.ca/oss/article/covid-19-health/dozen-
misguided-influencers-spread-most-anti-vaccination-content-social-media.
University. Kanecia Zimmerman, et al., Incidence and Secondary Transmission of
SARS-CoV-2 Infections in Schools, 147 Pediatrics (2021). That research concludes
that mitigation measures that included masks had lower COVID-19 transmission
rates in schools than those school rates in surrounding communities. Id. at 6. In
addition, the Science Collaborative notes that “[m]ost of the cases of secondary
transmission . . . were related to absent face coverings.” Id. It concluded that
“[p]roper masking is the most effective mitigation strategy to prevent secondary
transmission in schools when COVID-19 is circulating and when vaccination is
unavailable, or there is insufficient uptake.” Id. at 3.
Defendants also attach a series of CDC-published Morbidity and Mortality
reports, each authored by groups of physicians, professors, and members of the
CDC COVID-19 Response Team. Those reports examined COVID-19
transmission in schools in Utah,15 Missouri,16 Georgia,17 and Wisconsin.18 Each
15 Rebecca Hershow et al., Low SARS-CoV-2 Transmission in Elementary
Schools—Salt Lake County, Utah, December 3, 2020–January 31, 2021, 70
MORBIDITY AND MORTALITY WEEKLY REPORT 442 (2021).
16 Patrick Dawson, et al., Pilot Investigation of SARS-CoV-2 Secondary
Transmission in Kindergarten Through Grade 12 Schools Implementing Mitigation
Strategies — St. Louis County and City of Springfield, Missouri, December 2020,
70 MORBIDITY AND MORTALITY WEEKLY REPORT 449 (2021).
17 Jenna Gettings, et al., Mask Use and Ventilation Improvements to Reduce
COVID-19 Incidence in Elementary Schools — Georgia, November 16–December
11, 2020, 70 MORBIDITY AND MORTALITY WEEKLY REPORT 779 (2021).
18 Amy Falk, et al., COVID-19 Cases and Transmission in 17 K–12 Schools —
Wood County, Wisconsin, August 31–November 29, 2020, 70 MORBIDITY AND
MORTALITY WEEKLY REPORT 136 (2021).
report concluded that in schools with mitigation measures including masks, the
COVID-19 transmission rate was lower than in the surrounding community.
Each study recommended that mask usage guidelines be adopted as part of
school reopening. For example, the CDC’s study of Utah’s school reopening
concluded that “in-person elementary schools can be opened safely with minimal
in-school transmission when critical prevention strategies including mask use are
implemented.” Hershow, supra at 447 (emphasis added). In the study examining
Missouri schools, the authors recommended that “K–12 schools should continue
implementing SARS-CoV-2 mitigation strategies that include mask use
policies . . . .” Dawson, supra at 453.
The CDC’s Georgia study focused on kindergarten through fifth grade and
found that “[a]djusting for county-level incidence, COVID-19 incidence was 37%
lower in schools that required teachers and staff members to use masks,” but it did
not produce a statistically significant result with respect to schools that required
mask use among students. Gettings, supra at 779. The authors concluded that
“[b]ecause universal and correct use of masks can reduce SARS-CoV-2
transmission . . . and is a relatively low-cost and easily implemented strategy,
findings in this report suggest universal and correct mask use is an important
COVID-19 prevention strategy in schools as part of a multicomponent approach.”
Id.
Defendants’ studies are better tailored to the issue before the Court than
plaintiff’s. Unlike plaintiff’s submissions, they examined the transmission of the
virus in school-aged children and in the school environment.
Thus, defendants have provided ample support for their position. Notably,
since their submissions, a recent decision by Judge Kahn of the Northern District of
New York cited two subsequent studies supporting school mask mandates. L.T. v.
Zucker, No. 121CV1034LEKDJS, 2021 WL 4775215, at *10 n.15 (N.D.N.Y. Oct.
13, 2021).19
The first study found that “the odds of a school-associated COVID-19
outbreak in schools without a mask requirement were 3.5 times higher than those in
schools with an early mask requirement,” and the second found that “[c]ounties
without school mask requirements experienced larger increases in pediatric COVID-
19 case rates after the start of school compared with counties that had school mask
19 Megan Jehn, et al., Association Between K–12 School Mask Policies and School-
Associated COVID-19 Outbreaks — Maricopa and Pima Counties, Arizona, July–
August 2021, CENTERS FOR DISEASE CONTROL AND PREVENTION MORBIDITY AND
MORTALITY WEEKLY REPORT, Vol. 70, September 24, 2021, and Samantha E.
Budzyn, et al., Pediatric COVID-19 Cases in Counties With and Without School
Mask Requirements — United States, July 1–September 4, 2021, CENTERS FOR
DISEASE CONTROL AND PREVENTION MORBIDITY AND MORTALITY WEEKLY
REPORT, Vol. 70, September 24, 2021
requirements.” Id.20 The Court’s research has not disclosed any subsequent studies to
add to plaintiff’s submissions.
III. The Constitutional Issues
Because plaintiff’s submissions lacked clarity as to the precise basis for her
constitutional contention that she was entitled to preliminary injunctive relief, the
Court held a hearing to attempt to understand it. During the hearing, plaintiff’s
counsel clarified that “the specific policy we are challenging as unconstitutional is
the school district’s decision to substantively review and overrule treating
physicians, and the manner in which they are doing it.” 9.24.21 Tr. at 19; see also
9.24.21 Tr. at 34 (“Can [the School District] deny a medical exemption by a
treating physician?”; 9.24.21 Tr. at 9 (“[W]hat’s unconstitutional, in my
opinion . . . is that the school district has taken it upon themselves, without any
kind of regulatory authority,21 to intervene in [the plaintiff-doctor] relationship, to
20 As recounted in a recent article in Newsday, Long Island’s leading newspaper:
At the end of this past September—one month after the reopening of its schools—
“Long Island reported the second-highest number of COVID-19 cases among
students for any region in the state . . . .” John Hildebrand, Report Card: LI has
second-highest number of COVID-19 cases for kids, school staff in state,
NEWSDAY (Sept. 29, 2021) https://www.newsday.com/long-island/education/long-
island-school-covid-ranking-1.50373619. The defendant school district is located
in Long Island.
21 The Court has also considered and rejects plaintiff’s allegation questioning the
Commissioner’s power to act. The Mask Mandate is within the Commissioner’s
delegated authority. See Boreali v. Axelrod, 71 N.Y.2d 1 (1987); Citizens for an
Orderly Energy Policy v. Cuomo, 78 N.Y.2d 398, 410 (1991). In any event,
second guess the treating physician, to overrule them . . . .”).
In her extensive brief, plaintiff bloused out her principal contention by
identifying the fundamental rights which she contends are violated by the Mask
Mandate:
the right to be free from nonconsensual medical interventions and other
rights derived from the fundamental right to choose what happens to
one’s own body; the right to a medical exemption; the right of parents
to make medical determinations for their child in accordance with their
physician’s independent medical judgment; and the right to breathe
unencumbered by an experimental medical product.
Pl. Brief. at 18.
A. The Standard
Where “a preliminary injunction will affect government action taken in the
public interest pursuant to a statute or regulatory scheme, the moving party must
demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success
on the merits, and (3) public interest weighing in favor of granting the injunction.”
Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 631 (2d Cir. 2020).
Because the Court finds that plaintiff has not demonstrated a likelihood of
success on the merits, it need not consider the other two preliminary injunction
requisites.22
plaintiff did not rely upon this argument in her motion papers or at either oral
argument.
22 The Court notes, however, that as Judge Cogan wrote: “In the Second Circuit, it
is well-settled that an alleged constitutional violation constitutes irreparable
B. Existing Law on School Mask Mandates
To date, only a few federal court cases have directly examined school mask
mandates.
In Resurrection School v. Hertel, a religious school challenged Michigan’s
school mask mandate “because it interferes with the school’s religiously oriented
disciplinary policies and prevents younger students from partaking fully in a
Catholic education.” 11 F.4th 437, 447 (6th Cir. 2021). The case arose in the
religious liberty context, and much of the Sixth Circuit’s analysis focused on that
issue. Once the court determined that rational basis review applied, it upheld the
mandate: “Defendants cite more than ample evidence that requiring masks in the
school setting minimizes the spread of COVID-19.” Id. at 460.
harm. . . . Because plaintiffs allege that their substantive due process rights have
been violated, no further showing of irreparable injury is necessary.” Maniscalco v.
New York City Department of Education, 2021 WL 4344267, at *2 (Sept. 23,
2021) (internal quotation and citation omitted); but see KM Enterprises, Inc. v.
McDonald, No. 11-CV-5098, ADS ETB, 2012 WL 540955, at *3 (E.D.N.Y. Feb.
16, 2012) (“[E]ven if a constitutional claim was asserted, “merely asserting a
constitutional injury is insufficient to automatically trigger a finding of irreparable
harm.”); Pinckney v. Bd. of Educ. of Westbury Union Free Sch. Dist., 920 F. Supp.
393, 400 (E.D.N.Y. 1996) (“[O]ther courts have found that the mere allegation of a
constitutional infringement in and of itself does not constitute irreparable harm.”).
Moreover, for reasons stated, supra, an injunction would clearly not be in the
public’s best interest.
In W.S. by Sonderman v. Ragsdale, a group of Georgia public school
students challenged the Cobb County School District’s mask mandate. No. 1:21-
CV-01560-TWT, 2021 WL 2024687, at *1 (N.D. Ga. May 12, 2021). Because
“[t]he mandate neither discriminates against a protected class nor infringes a
fundamental right,” the court applied rational basis review. Id. at *2. Expressly
noting that Cobb County relied on guidance from the CDC and Georgia state
public health authorities, the court upheld the mandate. Id. at *2.
In Oberheim v. Bason, a group of parents brought suit on behalf of their
children to challenge a mask mandate promulgated by the Montoursville Area
School District. No. 4:21-CV-01566, 2021 WL 4478333, at *1 (M.D. Pa. Sept. 30,
2021). The court rejected arguments that students had a fundamental right to
attend class without a mask, or that the mask mandate infringed a parent’s
fundamental right to raise their children without undue interference. Id. at 7. Like
plaintiff here, the parents in Oberheim argued that masks are not effective in
preventing the spread of COVID-19. The court rejected that argument, too, noting
that “such a dispute is left to the resolution of the policymakers[.]” Id. at 8.
Ultimately, the court applied rational basis review. Because the school district
relied upon the decree of state public health authorities in crafting it, the court
upheld the mandate. Id.
In addition, defendants have submitted a copy of M.F. v. Cuomo, a decision
from the state Supreme Court of Nassau County. M.F. v. Cuomo, No. 607277/21
(N.Y. Sup. Ct. Jun. 21, 2021). Plaintiff was the mother of four school-aged
children. She raised many of the same arguments made by plaintiff here, including
that the Mask Mandate violates the Nuremberg Code, that face masks are
experimental devices, and that they are ineffective. Id. at 5. The court rejected
them, holding the analogy “too strained for . . . credence.” Id. at 6. Applying
rational basis review, the court upheld the mandate. Id. at 7.
In addition to these cases, some federal courts have considered mask
mandates in broader circumstances. They have uniformly found that public mask
mandates do not implicate fundamental rights, and that such mandates easily clear
rational basis review. See e.g. Forbes v. County of San Diego, No. 20-CV-00998-
BAS-JLB, 2021 WL 843175 (S.D. Cal. Mar. 4, 2021) (mask mandates do not
implicate fundamental rights); Oakes v. Collier County, 515 F. Supp. 3d 1202,
1206-07 (M.D. Fla. 2021) (“Some may disagree with the public health efficacy of
mask orders. But federal courts do not sit in a policy-checking capacity to second
guess the wisdom of state legislative acts.”); Whitfield v. Cuyahoga County Public
Library Foundation, No. 1:21 CV 0031, 2021 WL 1964360, at *2 (N.D. Ohio May
17, 2021) (“[T]here is no general constitutional right to wear, or to refuse to wear a
face mask in public places.”).
C. Substantive Due Process and Fundamental Rights
“[T]he Due Process Clause of the Fourteenth Amendment embodies a
substantive component that protects against ‘certain government actions regardless
of the fairness of the procedures used to implement them.’” Immediato v. Rye Neck
Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996) (quoting Daniels v. Williams, 474 U.S.
327, 331 (1986)). In general, a regulation “need only be reasonably related to a
legitimate state objective.” Id. at 461 (citing Reno v. Flores, 507 U.S. 292, 303-06
(1993)). However, when the regulation infringes a fundamental right, it must, as
noted, be “narrowly tailored to serve a compelling state interest.” Flores, 507 U.S.
at 302. A right is fundamental if it is “implicit in the concept of ordered liberty,”
Palko v. Connecticut, 302 U.S. 319, 325-26 (1937), or “deeply rooted in this
Nation’s history and tradition,” Moore v. E. Cleveland, 431 U.S. 494, 503 (1977).
In some cases, identifying the right at issue as fundamental is straightforward.
For example, because the right to assemble for religious worship is clearly protected
by the Free Exercise Clause of the First Amendment, the Supreme Court had
concluded that COVID-related limits on attendance at churches and synagogues
were subject to strict scrutiny, rather than Jacobson’s lesser standard. See Roman
Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (per curiam); see also
Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 632 (2d Cir. 2020) (“[A] policy that
expressly singles out religion for less favored treatment, as here, is subject to strict
scrutiny.”).
Here, plaintiff asserts several rights that she claims trigger strict scrutiny.
For the following reasons, the Court does not agree that fundamental rights are
implicated.
1. Right to a Medical Exemption
Plaintiff principally argues that the Constitution entitles her to a medical
exemption from the Mask Mandate (and, indeed, any “public health law,” Pls.’
Mem. of Law at 14). She cites Jacobson v. Massachusetts, for the proposition that
it would be “cruel and inhuman in the last degree” to require someone to be
vaccinated “if it be apparent or can be shown with reasonable certainty that he is
not at the time a fit subject of vaccination, or that vaccination, by reason of his then
condition, would seriously impair his health, or probably cause his death.” 197
U.S. 11, 39 (1905). But Jacobson reached that conclusion as a matter of statutory
interpretation, not constitutional law. Indeed, the opinion flatly rejects the notion
that the Constitution requires what plaintiff calls “strict harm avoidance.” See id. at
29 (noting that quarantines and military conscription restrict freedom of choice).
In any event, the Mask Mandate includes a medical exemption, requiring
compliance by only those “over age two and able to medically tolerate a face-
covering.” N.Y. Comp. Codes R. & Regs. tit. 10, § 2.60 (emphasis added).
Plaintiff’s real complaint concerns who should decide whether the exemption
applies.
In that regard, she argues that she has a fundamental right to act on the good-
faith medical judgment of her own physician. She cites several cases in which the
Supreme Court has held that the lack of an adequate medical exemption to an
abortion restriction places an undue burden on a woman’s fundamental right to the
procedure. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320
(2006); Stenberg v. Carhart, 530 U.S. 914, 937 (2000). Those cases assume that
the woman’s physician will decide medical necessity. An earlier case, Doe v.
Bolton, 410 U.S. 179 (1973), was more explicit:
[M]edical judgment may be exercised in the light of all factors—
physical, emotional, psychological, familial, and the woman’s age—
relevant to the well-being of the patient. All these factors may relate to
health. This allows the attending physician the room he needs to make
his best medical judgment.
Id. at 192. Based on that reasoning, the Supreme Court struck down regulations
requiring hospital committee approval and the concurrence of two consulting
physicians before an abortion. See id. at 196-200.
The context in which those cases arose makes them inapposite for two
reasons. First, it has long been understood that the right to independent medical
judgment is part and parcel of the fundamental right to terminate a pregnancy. See
Singleton v. Wulff, 428 U.S. 106, 117 (1976) (allowing physicians to challenge
abortion restrictions because “the constitutionally protected abortion decision is
one in which the physician is intimately involved.”). It does not follow that there
is a standalone fundamental right to have one’s own physician determine the need
for compliance with every public health measure.23
Second, a treating physician is obliged to consider the health of his or her
patient above all else. That is entirely appropriate for a decision as intimate and
personal as terminating a pregnancy. But the Mask Mandate is directed at a matter
of public health. That is, the state must weigh the health concerns of an individual
against the threat to the health of everyone else present in the classroom or other
public place. A personal physician is ill-equipped to balance those competing
concerns.
2. Right to Refuse Medical Treatment
Plaintiff next invokes the right to refuse unwanted medical treatment. There
is no question that the right is fundamental. See Washington v. Glucksberg, 521
23Plaintiff argues that the Supreme Court expanded the right to non-abortion cases
in Whalen v. Roe, 429 U.S. 589 (1977), in which it noted that a New York law
requiring notification to the state of all prescriptions of Schedule II drugs did not
deprive anyone “of the right to decide independently, with the advice of his
physician, to acquire and to use needed medication.” Id. at 603. At the same time,
however, it acknowledged that a state could validly limit dosages and refills and
could even ban certain drugs outright. And in another case, it held that physicians
could be prosecuted under the federal Controlled Substances Act for prescribing
drugs outside “the usual course of professional practice.” United States v. Moore,
423 U.S. 122, 138 (1975).
U.S. 702, 722 n.17 (1997) (“[In Cruzan v. Director, Missouri Department of
Health, 497 U.S. 261 (1990)], we concluded that the right to refuse unwanted
medical treatment was so rooted in our history, tradition, and practice as to require
special protection under the Fourteenth Amendment.”).
Once again, however, context matters. Glucksberg involved an individual’s
right to physician-assisted suicide; Cruzan, the right to refuse life-prolonging
hydration and nutrition. While the Mask Mandate was obviously intended as a
health measure, it no more requires a “medical treatment” than laws requiring
shoes in public places, see Neinast v. Bd. of Trustees of Columbus Metro. Library,
346 F.3d 585, 593-94 (6th Cir. 2003), or helmets while riding a motorcycle, see
Picou v. Gillum, 874 F.2d 1519, 1522 (11th Cir. 1989).
In a true “right to refuse treatment” case, the state’s interest in preserving
life and the individual’s right to bodily integrity implicate a single person. Like the
abortion context, it is completely distinguishable from the Mask Mandate’s attempt
to balance the competing interests of the individual and public health.
3. Parents’ Right to Make Educational Decisions
Plaintiff next argues that “the state has no valid reason to intervene” in her
wish to follow the medical advice of her daughter’s physician. Pls.’ Mem. of Law
at 28. It is true that the presumption that parents will act in their children’s best
interests gives them a fundamental right to make many decisions on their behalf.
See Troxel v. Granville, 530 U.S. 57, 65 (2000). Thus, a state cannot require a
parent to send their child to public school, see Runyon v. McCrary, 427 U.S. 160,
176-77 (1976) (citing Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)), or forbid
private schools from teaching certain subjects, see id. (citing Meyer v. Nebraska,
262 U.S. 390 (1923)).
It should, however, be obvious by now that even fundamental rights are not
absolute. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Supreme Court stressed
that Pierce and Meyer lend “no support to the contention that parents may replace
state educational requirements with their own idiosyncratic views of what
knowledge a child needs to be a productive and happy member of society.”
Runyon, 427 U.S. at 177.
More recently, the Second Circuit held that “Meyer, Pierce, and their
progeny do not begin to suggest the existence of a fundamental right of every
parent to tell a public school what his or her child will and will not be taught.”
Leebaert v. Harrington, 332 F.3d 134, 141 (2d Cir. 2003). “[R]ecognition of such a
fundamental right,” it explained, “requiring a public school to establish that a
course of instruction objected to by a parent was narrowly tailored to meet a
compelling state interest before the school could employ it with respect to the
parent’s child—would make it difficult or impossible for any school authority to
administer school curricula responsive to the overall educational needs of the
community and its children.” Id.
What is true for curricular requirements is just as true for other educational
regulations like the Mask Mandate. No one is forcing plaintiff to send her child to
public school or to live in New York State, but once she made those decisions, she
must comply with their rules. Her authority stops, so to speak, at the schoolhouse
door. And for good reason. Like a physician with a patient, a parent may justifiably
be expected to act in the child’s best interest. But it is that very motivation—
laudable in itself—that might lead the parent to misjudge what is best for the health
of the community as a whole. That is precisely why we, as a society, have
entrusted public institutions to make such decisions.
In sum, the Court concludes that the Mask Mandate does not impinge upon
any fundamental right. Therefore, strict scrutiny is not the standard by which
plaintiffs’ constitutional claims must be evaluated. Nor do plaintiff’s claims call
for intermediate scrutiny. As with the handful of all the other cases that have
passed upon the constitutionality of mask mandates, it will evaluate the mandate
under rational basis review, noting in passing that it easily passes the more
deferential Jacobson test that it has “a real or substantial relation” to public health.
197 U.S. at 31.
D. Substantive Due Process and Rational Basis Review
The Supreme Court has emphasized that application of rational basis review
“is not a license for courts to judge the wisdom, fairness, or logic of legislative
choices.” Heller v. Doe by Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach
Communications, Inc., 508 U.S. 307, 313 (1993)). Laws subject to rational basis
review are “accorded a strong presumption of validity.” Id. at 319. Indeed, the
government need not actually articulate its rationale; rather, government action
passes muster “if there is any reasonably conceivable state of facts that could
provide a rational basis.” Id. at 320 (quoting Beach Comm’ns, 508 U.S. at 313). It is
the burden of the party challenging a law to “negat[e] every conceivable basis
which might support it.” Id. (citing Lehnhausen v. Lake Shore Auto Parts Co., 410
U.S. 356, 364 (1973)).
Notably, even before Maniscalco there was a significant body of post-
pandemic caselaw upholding vaccination mandates based upon rational basis
review analysis. See, e.g., Klaassen v. Trustees of Indiana Univ., No. 1:21-CV-238
DRL, 2021 WL 3073926 (N.D. Ind. July 18, 2021), aff’d, 7 F.4th 592 (7th Cir.
2021); Norris v. Stanley, No. 1:21-CV-756, 2021 WL 3891615 (W.D. Mich. Aug.
31, 2021); Children’s Health Def., Inc. v. Rutgers State Univ. of New Jersey, No.
CV2115333ZNQTJB, 2021 WL 4398743 (D.N.J. Sept. 27, 2021) (collecting cases);
see also Phillips v. City of New York, 775 F.3d 538, 540 (2d Cir. 2015) (upholding
school vaccine mandate for “various vaccine-preventable illnesses” prior to
pandemic). None has held otherwise.
Plaintiff has submitted documents to support her argument that masks are
inimical to a child’s health. But this evidence is thin compared to the contrary
documents that defendants have submitted, which clearly satisfy the rational basis
review standard.
This is not to say that the Mask Mandate is not without flaws. The degree of
difficulty the Court had to endure to understand its reach and application has also
made it difficult for the defendant school district (and presumably others throughout
the state) to grapple with the application of the current prolix array of the
regulation, recommendations and requirements, guidelines and guidance.
Nonetheless, as recently articulated by Judge Cogan in Maniscalco:
[W]here good faith arguments can be made on both sides of the many
issues raised by the pandemic, it is up to local government, not the
courts, to balance the competing public health and business interests.
2021 WL 4344267 at *4; (internal quotations and citation omitted). The
same principle applies here.
E. Other Laws
Plaintiff also contends that the Mask Mandate is preempted by various
federal laws, including Section 564 of the Food, Drug, and Cosmetic Act (the
“FCDA”), and the Nuremberg Code. Pls.’ Mem. of Law at 15. These arguments
are without merit.
First, Section 564 does not include a private right of action. It “confers
powers and responsibilities to the Secretary of Health and Human Services in an
emergency,” not “an opportunity to sue the government.” See Bridges v. Houston
Methodist Hosp., No. CV H-21-1774, 2021 WL 2399994, at *2 (S.D. Tex. June 12,
2021). Nor is a private right of action separately supplied by the Supremacy
Clause: It is “not the source of any federal rights and certainly does not create a
cause of action.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 325
(2015).
Citing the Nuremberg Code, plaintiff argues that the Mask Mandate violates
the international norm that one cannot be coerced into medical experimentation
without consent. The Mask Mandate is not an experiment or clinical trial; it is a
school safety measure.24 See Bridges, 2021 WL 2399994, at *2. Recasting it as an
unlawful human experiment is an irrational leap of logic.
IV. The State Claims
Although plaintiff is not entitled to preliminary injunctive relief based on her
constitutional claims, the Court nonetheless had concerns for her daughter’s health.
Accordingly, based on some passing allegations in the Complaint, representations
24 The Complaint regrettably equates the Mask Mandate to the Nazi experiments.
Plaintiff’s counsel is admonished to avoid such irrational and incendiary language.
See Fed. R. Civ. P. 11.
made at oral argument by plaintiff’s counsel, and a subsequently submitted
affidavit from Sarah’s mother, the Court deemed the Complaint amended to assert
two state claims: (1) for failure of the school district to afford her a “medical
tolerance” exemption; (2) for failure of the school district to comply with the
ADA.25
Plaintiff’s affidavit details her failed efforts “to work with my daughter’s
school district to accommodate her medical need for an exemption from the mask
requirement.” Doe Aff. at ¶ 2. It lays out a litany of problems Sarah has had to
endure while she tried to comply with the School District’s mask mandate last
year. Principally, she could not “breathe with the mask on for prolonged periods,”
and had to use her asthma pump “many times” as “she struggle[d] to breathe.” Id.
at ¶ 9. After school began, and the State’s Mask Mandate became the law, Sarah’s
condition “got worse.” She had become “dangerously underweight by the end of
last year,” her “anxiety and fear about not being able to breathe again returned and
she was unable to keep any weight on.” Id. at ¶ 16.
25 The Court views the requirement that the School District must comply with the
ADA as adopting the federal statute as state law, thereby raising a state claim. See,
e.g., Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145 (1st Cir. 2009)
(Massachusetts state civil rights act incorporates federal analysis). But since the
ADA is a standalone federal statute, the Court also granted the plaintiff leave to
amend her Complaint to directly invoke the Court’s federal jurisdiction. This has
yet to be done.
After school began, and the school district denied her requests for relief, she
got worse: “Her hair has started to fall out, and her attacks and migraines”
returned. Id. at ¶ 17. On September 27, 2021 “Sarah started having a lot of
difficulty breathing” but “[t]he teachers and administrators were rude to her and
dismissive, acting annoyed and saying things like ‘I don’t want to deal with this
today.’” Id. ¶ 18-19. When she got home her mother “was afraid she would wind
up in the hospital again.” Id. at ¶ 20.
Her doctor had recommended a medical exemption, which the school district
had not honored. Her mother stated in the affidavit that “[e]ven if we could just do
a shield or mesh mask, I think her situation would improve.” Id. at ¶ 23.
The affidavit concludes by “pray[ing] for some relief from this Court”
because “[m]y daughter’s physical, emotional, and psychological health are
suffering harm every day and I do not know what to do.” Id. at ¶ 24.
Primarily on the strength of this affidavit, the Court ordered a factual hearing
to determine whether preliminary injunctive relief might be warranted on the state
law claims. It believed it had the power to do this since it had ongoing federal
jurisdiction over the litigation. See 28 U.S.C. § 1331. It did express concern,
however, whether it should exercise supplemental jurisdiction over purely state law
claims, which would seem to be the province of Article 78 review. See Maniscalco
2021 WL 4344267, at *5-6. The Second Circuit has opined that, conceptually,
district courts may have supplemental jurisdiction over an Article 78 claim, but
that there are usually good reasons to decline exercising that jurisdiction. See
Carver v. Nassau Cty. Interim Fin. Auth., 730 F.3d 150, 155 (2d Cir. 2013) (citing
City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 164-68 (1997)).
The Court nonetheless ordered the factual hearing but recognized that it
might have to grapple with the question of jurisdiction if it concluded that
plaintiff’s medical condition warranted preliminary injunctive relief. However, the
parties have advised the Court that they are engaging in settlement negotiations
and have requested an adjournment of the hearing pending the conclusion of their
negotiations. See Oct. 18, 2021 Mot. To Adj. Conf. Accordingly, the Court has
adjourned the hearing to November 3, 2021. Presumably, the school district will
consider the current health of Sarah and revisit the issue of whether she should be
given either a medical exemption or some relief under the ADA.26
V. Coda
These are difficult times for school districts to comprehend and apply the
morass of the Commissioner’s regulation, the Commissioner’s “determination,”
the CDC’s recommendations and requirements, and all the guidelines and guidance
26 To the extent that the School District asserted at oral argument that it relied on
the CDC Guidance that children with asthma can wear masks, it should also be
mindful that the CDC recommended that those with asthma “[d]iscuss with [their]
healthcare provider if [they] have any concerns about wearing a mask.” Guidance
for Wearing Masks: Help Slow the Spread of COVID-19.
affecting the application of the Mask Mandate. The School District is to be
complimented for its willingness to give it another go in Sarah’s case. It obviously
understands that medical conditions are not static and that an open-minded
approach is in everyone’s best interest. It also obviously realizes that serious
concerns over the health and welfare of its student population in the face of the
pandemic should be sensitively handled by the School District’s administrators to
obviate the need for its students’ parents to initiate costly and protracted litigation.
Finally, the Court notes that the Mask Mandate is set to expire on November
25, 2021. The State will have the opportunity to assess the wisdom of transforming
its current complex mix of its regulation, recommendations, guidance and
guidelines into a simpler, more manageable format. Now that all school district
personnel will likely be required to be vaccinated after the final decision in
Maniscalco is rendered, it may also consider whether the current rigidity of its
immutable “one size fits all” regulation is still warranted, or whether a more
malleable approach, such as that adopted by Massachusetts or the other states in
the second bucket, which recognize the statistical variations of diverse
communities, might be more appropriate.27
27 Currently, anyone over the age of 12 can get the vaccine. Approval for 5-to-11-
year-olds to be vaccinated could come as early as November. See Sharon
LaFraniere & Noah Weiland, Pfizer Requests Nod to Vaccinate Children 5 to
11, N.Y. TIMES, Oct. 8, 2021, at A1. Indeed, Dr. Anthony Fauci, Chief Medical
Advisor to the President, noted that “it’s entirely possible if not very likely that
The Court, of course, recognizes that it is not its province to usurp the
function of the legislature, nor to base its decision on its own personal views. Its
function is simply to apply the law of the land, which it has endeavored to do. But
given the imponderables and the country’s divisiveness over the issue of mask
mandates for children it has decided to veer from the conventional format of the
traditional legal opinion—to which it generally subscribes—in order to educate the
public about the current state of reputable scientific studies and the various ways
our states have addressed the problem. See Richard Posner, Reflections on Judging
11 (2013); see also Frederic Block, Disrobed: An Inside Look at the Life and Work
of a Federal Trial Judge 1-4 (2012).
vaccines will be available for children from 5 to 11 within the first week or two of
November.” Humeyra Pamuk, Fauci says vaccines for kids between 5-11 likely
available in November, REUTERS (Oct. 24, 2021)
https://www.reuters.com/business/healthcare-pharmaceuticals/fauci-says-vaccines-
kids-between-5-11-likely-available-november-2021-10-24/.
VI. Conclusion
For the all the foregoing reasons, plaintiff’s motion for a preliminary
injunction on her constitutional claims is denied, but the issuance of preliminary
injunctive relief on her state law claims will be held in abeyance pending the
resolution of the parties’ settlement negotiations.
SO ORDERED.
_/S/ Frederic Block_______________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
October 26, 2021