# Reale v. Haskell

> District Court, D. Connecticut · March 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10836062

## Case

- **Court:** District Court, D. Connecticut
- **Decided:** March 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

-------------------------------- x
DANIEL REALE and :
MIRIAM IRIZARRY, :
:
Plaintiffs, :
v. :
:
CHRISTI HASKELL; SCOTT SUGARMAN; :
PLAINFIELD BOARD OF EDUCATION; : Civil No. 3:21-cv-1349 (AWT)
KATHLEEN BARRY; ROXANNE BOISSEE; :
PEGGY BOUREY; MICHAEL BROUGHTON; :
ARRIANA LANDRY; HEATHER SMITH; :
AUDREY LEMIEUX; DIANE SUMMA; :
and PAUL BRENTON, :
:
Defendants. :
-------------------------------- x

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The defendants have moved for summary judgment on the
remaining claims in the Amended Complaint: Daniel Reale’s claim
under Title II of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. (“ADA”) against Christi Haskell, Scott Sugarman,
and the Plainfield Board of Education (the “Board”) (Count One);
Reale’s First Amendment claim against the same defendants (Count
Two); and Miriam Irizarry’s First Amendment claim against
Sugarman and the Board (Count Three). Haskell has been the Chair
of the Board since 2017, and Sugarman has been the Assistant
Superintendent since 2019. The defendants move for summary
judgment on all these counts. For the reasons set forth below,
the motion is being granted.
I. FACTUAL BACKGROUND
During the COVID-19 pandemic, the Board issued a facemask
policy that applied to in-person attendance at Board meetings.

Reale’s claims in Count One and Count Two arise out of
enforcement of that policy against him at a Board meeting on
September 8, 2021. Irizarry’s claim in Count Three arises out of
a September 1, 2021 protest, outside the Plainfield Central
Middle School (the “Middle School”), in which she participated.
A. Reale
1. The Governor’s Executive Orders
In 2021, the Governor of Connecticut, Ned Lamont, issued a
series of executive orders relating to the COVID-19 pandemic.
Executive Order 13A, issued on August 5, 2021, contained the
following language:
A person while indoors in a public place who does
not maintain a safe social distance of approximately
six feet from every other person and who is not fully
vaccinated for COVID-19 shall cover their mouth and
nose with a mask or cloth face covering. A person
shall be considered fully vaccinated 14 days after
receiving the final recommended dose of a vaccine
approved for use against COVID-19 by U.S. Food and
Drug Administration, or as otherwise defined by the
Centers for Disease Control.

a. Nothing in this order shall require the use of
a mask or cloth face covering by anyone for whom doing
so would be contrary to his or her health or safety
because of a medical condition, behavioral condition,
or disability, or anyone under the age of 2 years. Any
person who declines to wear a mask or face covering
because of a medical condition, behavioral condition,
or disability shall be exempt from this order and any
requirement to wear masks or face coverings
promulgated in or pursuant to any COVID-19 Order, but
only if such person provides written documentation
that the person is qualified for the exemption from a
licensed or certified medical provider, psychologist,
marriage and family therapist, professional counselor,
social worker, or behavior analyst, the Department of
Developmental Services or other state agency that
provides or supports services for people with
emotional, intellectual or physical disabilities, or a
person authorized by any such agency. Such
documentation shall not be required to name or
describe the condition that qualifies the person for
the exemption.

b. The Commissioner of Public Health shall issue
a rule setting forth a comprehensive list of
facilities, venues, and other locations where masks
and cloth face coverings are required, including for
people who are vaccinated, and will amend said rule as
the Commissioner determines is warranted by public
health conditions. . . .

. . . .

e. Any business, nonprofit organization, property
owner, or state, regional, or municipal government or
agency may, subject to the exceptions in subsection
(a) of this order . . . require the universal use of
masks or face coverings or require staff to wear masks
or face coverings in settings under their ownership or
control, including, but not limited to, offices,
places of public accommodation, public venues, or
public meetings.

Defs.’ Local Rule 56(a)(1) Statement of Facts in Supp. of Summ.
J. (ECF No. 167-2) (“DSF”) Ex. 8 (ECF No. 167-10), at 4–6.1
Pursuant to paragraph b, on August 7, 2021, the State of
Connecticut Department of Public Health issued a rule stating

1 The page numbers cited to in this ruling for documents that have been
electronically filed refer to the page numbers in the header of the documents
and not to the page numbers in the original documents, if any.
that “all individuals, regardless of vaccination status, shall
wear a face-covering mask at all times when . . . [i]nside PreK-
12 public or non-public . . . school buildings, excluding

residential dormitories, when students are present,” but there
is “no need to wear a mask when in a school building on a
weekend or after hours when students are not present inside the
building . . . .” Defs.’ Supp. Local Rule 56(a)(1) Statement of
Undisputed Material Facts (ECF No. 183-1) (“Defs.’ Supp.”) Ex.
18 (ECF No. 183-2), at 1.
2. The Board’s Facemask Policy
At the time of the events at issue, the Board held in-
person public meetings in a public venue, the Plainfield High
School auditorium. The Board adopted a policy that required in-
person attendees to wear a facemask. The policy was published on
the Board’s website and was attached to each meeting agenda. The

policy stated that there was a facemask requirement
as outlined in Executive Order 13a [i]nside PreK-12
public or non-public (e.g., “private”, “independent”,
“boarding”, etc.) school buildings, excluding
residential dormitories, when students are present. As
students are present during all BOE meetings, masks
are required for all visitors. Individuals who are
unable to wear a mask in the building as outlined by
the executive order, shall be provided the ability to
view the meeting remotely and shall be accommodated in
accordance with Order 7b.

DSF Ex. 1 (ECF No. 167-3), at 7 (Ex. A). This requirement was in
effect until March 2022, after the events at issue here.
In accordance with its facemask policy, the Board’s
meetings were streamed online and there was an option for remote
participation. Instructions for remote participation were

published on the Board’s website. Those instructions provided:
Plainfield Public Schools provides access to
public Board of Education meetings virtually through
Zoom teleconference.

At designated meetings members of the public can
address the Board in real time by submitting a Public
Speaker request to tammy@plainfieldschools.org by
12:00 noon the day of the meeting. Comments will be
both live and virtual, but all speakers must sign up
via the form. . . .

. . . .

Members of the public may also submit public
comments via the following email address:
questions@plainfieldschools.org . . . . Members of the
public are encouraged to send their thoughts and
opinions to the Board at any time, but only those
received during the public comment submission window
will be included in the public record of a Board of
Education meeting.

Please note that [p]er BOE policy 9323.1, there
will be no dialogue between Board members and the
Public at Board meetings except to clarify the nature
of questions or comments.

Under the direction of the Board Chair, members
of the Board and the administration may respond to
comments. However, in consideration of those in
attendance and in an effort to proceed in a timely
manner, follow-up discussion may need to take place
outside of the meeting setting.

DSF Ex. 1, at 7 (Ex. A). Online participants were not required
to give any justification for their remote attendance and were
not required to wear a facemask. Reale knew that he could attend
remotely in this manner; he simply thought that “based on the
illegal executive orders, they had no right to preclude me from
being there in person.” DSF Ex. 11 (Reale Depo.) (ECF No. 168-

1), at 53:24–54:1.
3. The September 8, 2021 Board Meeting
On September 8, 2021, both Executive Order 13A and the
Board’s facemask policy were in effect. Students were present in
the auditorium for the entire duration of the September 8, 2021
Board meeting. Two student representatives sat on the stage with
the Board. See Defs.’ Supp. Ex. 19 (Supp. Haskell Aff.) (ECF No.
183-3) ¶ 10 (“Board of Education Student Representatives were
present for the entire duration of the September 8, 2021 Board
of Education meeting.”); Defs.’ Supp. ¶ 66 (authenticated video)2
(“BOE Video”), at 21:27–23:43 (showing two of the three student
representatives introducing themselves while in their Board

seats onstage).
That evening, Reale attended a Board meeting “in-person and
without a mask.” DSF ¶ 36; see BOE Video, at 44:00–45:12. “Prior
to the start of the meeting, [Sugarman] encountered two
individuals who were not wearing masks while inside of the
school building. One of those individuals was Daniel Reale.” DSF

2 Reale asserts “the audio and video did not adequately and completely capture
the entirety of the interactions among the Parties. In fact, I was unable to
hear all the interactions in this video. . . . This requires a trial.” Reale
Supp. Aff. (ECF No. 194-2) ¶ 3. Although Reale was not on camera, the audio
is clear, and there is no genuine issue as to what was said.
Ex. 2 (Sugarman Aff.) (ECF No. 167-4) ¶ 36. “[Sugarman] asked
both individuals to wear a mask and, after some discussion, one
of the two individuals put on a mask, but Mr. Reale continued to

refuse to wear a mask.” Id. ¶ 37. When it was Reale’s turn to
speak during the time for public comment, defendant Haskell
asked him to put on a mask before he gave his remarks. See BOE
Video, at 44:35-45:12. Haskell avers that “[she] did not know
what topic Mr. Reale intended addressing with the BOE during
public comment.” DSF Ex. 1 (Haskell Aff.) (ECF No. 167-3) ¶ 18.
Reale stated that he was exempt because he had a medical
exemption, but he provided no documentation as required by
Executive Order 13A. See BOE Video, at 44:35-45:12. Multiple
people asked Reale to put on a facemask, and he again stated
that he had an exemption. See BOE Video, at 44:00-45:12. When
Reale was asked, “Do you have some paperwork that suggests

you’re exempt from the state law?”, he responded, “Plenty of
medical records, don’t have them on me, don’t need to have them
on me, you can’t ask, that’s a Tier IV HIPAA violation.” BOE
Video, at 44:45-44:55. Reale offered to address the Board from
the back of the room, but the Board declined his offer because
that would have been in violation of the Executive Order.
Ultimately, Reale was asked to leave the building by the Board
because he refused to wear a mask.3 See BOE Video, at 44:53-
45:12.
While Haskell avers that she did not become aware that

Reale was not wearing a mask until it was his turn to speak,
Reale disputes this. He avers that “I was directly in front of
where the Board of Education sat . . . and was plainly not
wearing a mask at any time, in direct view of Defendant Haskell.
I was also wearing a suit and very plainly stood out.” Reale
Aff. (ECF No. 177-1) ¶ 12. However, Sugarman avers that “[he]
asked Mr. Reale to sit near the back away from other people,”
DSF Ex. 2 ¶ 40, and that “Reale moved his seat to the back of
the auditorium as requested,” id. ¶ 41. In any event, Reale
provides no evidentiary support for his contention that Haskell
saw him before it was his turn to speak; he only avers that he
was sitting where she could have seen him.
4. Reale’s Claimed Disability

Reale testified that, “from basically childhood,” he has
suffered from chronic rhinosinusitis and associated allergies,
which can “result in asthma.” DSF Ex. 11, at 47:11–12, 51:14–16.
Breathing in allergens, such as pollen, mold, and dust, through

3 Reale denies paragraph 45 of the defendants’ Local Rule 56(a)(1) Statement
of Undisputed Material Facts (ECF No. 167-2, at 9) but cites only to
documents that are inadmissible hearsay, namely freedom of information
requests written by him. Reale’s contention that the documents are business
records of Attorney Bona’s office lacks merit because they do not satisfy the
requirements of Federal Rule of Evidence 803(6) because, among other things,
making them was not a regular practice of Attorney Bona’s law office.
his nose and mouth exacerbates his condition. While at home,
Reale minimizes the impact of this condition by reducing the
amount of pollen, mold, and dust in his house. The last time

that Reale saw an allergist for what he calls his chronic
rhinosinusitis was in 2011. No doctor has ever recommended
surgery to treat it.
There are no medical records showing that a doctor has ever
diagnosed Reale as having chronic rhinosinusitis. Reale has
provided medical records for treatment he received on February
14, 2018, August 31, 2019, January 6, 2020, and July 7, 2020. On
two of those occasions his chief complaint included sinus and
chest congestion; on two occasions it did not. On one occasion
the duration was listed as two weeks on-and-off; on the other
occasion it was listed as one week. On all four occasions his
physical exam showed that his respiratory functions were normal.

On the two occasions when he was not complaining about sinus or
chest congestion, an examination showed that his ears, nose, and
throat were normal. He was prescribed Augmentin and Prednisone
for issues relating to his sinuses and chest.
Reale avers that a now-deceased allergist who saw him in
2011 “diagnosed his condition” and determined that Reale’s sinus
cavities were smaller than normal, Reale Aff. ¶ 6, but the
“medical record has been purged” due to its age, DSF Ex. 12
(Reale Depo.) (ECF No. 168-2), at 39:18–19.
When asked whether he has asthma, Reale testified that “I
have remediated a lot of my asthma . . . .” DSF Ex. 11, at
51:14–16. When asked whether he uses an inhaler, Reale testified

that “I used to have an inhaler, although what had happened --
that was more true when I was 90 pounds heavier than I am now.”
Id. at 51:8–20. When asked when he last used an inhaler, Reale
responded, “I wanna say 2018.” Id. at 51:21–22. That inhaler was
not one for which a prescription was required. Rather it was an
over-the-counter Primatene Mist. The parties disagree about
whether Reale ever had an inhaler for which a prescription was
required, but Reale does not dispute that the last time he used
an inhaler was in 2018 and that it was an over-the-counter
product.
Reale testified that he cannot wear a facemask because
“[i]t gets really uncomfortable really quickly. I heat up and it

kind of [i]s just--it’s like recycling my own air to the point
where it’s like the mask just has to come off.” DSF Ex. 11, at
49:12–15. He also testified that a ”face shield kind of has the
same effect. I mean, it can’t stay on for more than like 10
minutes,” or else “[i]t just gets really uncomfortable and hard
to breathe.” Id. at 49:18–20, 23–24.
Reale testified that in or around May 2020 he wore an N95
mask during a “one-man protest in Lions Park” against
enforcement of COVID-19 regulations and walked four laps around
a track. DSF Ex. 12, at 69:18–19. He avers that the mask was not
tight enough to form a seal and that he “purposefully had air
gaps in it so [he] could breathe.” Reale Aff. ¶ 8. When asked

whether he exercises, Reale testified, “I try to take walks.”
DSF Ex. 11, at 50:1.
B. Irizarry
The students at the Middle School are in grades 6 through
8. The Middle School is located on Canterbury Road. The Middle
School grounds extend out to a portion of public sidewalk that
runs the length of the grounds, but no further. The entry point
for buses and other vehicles from Canterbury Road is at one side
of the grounds, towards the right if one is facing the Middle
School. There is a school parking lot past that entry point. The
exit for buses and other vehicles is further along Canterbury
Road, to the left if one is facing the Middle School. The

sidewalk runs the entirety of the space between that entrance
and that exit, and continues on beyond the exit. It does not
extend beyond the entrance in the other direction. See DSF Ex.
2, at 14 (Ex. C) (map annotated by Sugarman). At 7:00 a.m. on
school days, school buses are in the process of dropping off
children. “Parents will occasionally stop their vehicles on
Canterbury Road and drop their children off at the school
entrance rather than enter the school parking lot.” DSF ¶ 14.
The protest in which Irizarry participated began at 7:00
a.m., and it was attended by Irizarry, Stacy Vargas, and a man
named Ryan. At 7:00 a.m., buses and parents were in the process
of dropping off children and school was scheduled to begin at

7:55 a.m. The area where the protesters had located themselves
was on the sidewalk, at the corner of the entrance to the school
grounds, in an area commonly used by parents to drop off their
children, and children were being dropped off at that time. See
DSF Ex. 14 (Irizarry Depo.) (ECF No. 169-2), at 31:13–14
(“Parents were dropping them off and school [buses] were
dropping them off.”). Ryan had parked his truck on the grass
next to the sidewalk. See id. at 33:7 (confirming that Ryan’s
car was parked in this location). Irizarry and Vargas had parked
their cars in the high school parking lot. Ryan’s truck was
parked in a manner that impeded the flow of traffic and
obstructed the buses and cars from entering the school grounds.

Initially two security officers, John Nisbet and Paul
Cloke, approached the protestors, but Irizarry was not present
for this interaction. Nisbet informed Ryan that he needed to
move his truck because it was impeding the flow of traffic.
Nisbet also informed Ryan, who was smoking, that smoking was not
allowed on school grounds, and Ryan responded by blowing smoke
into Nisbet’s face. Nisbet and Cloke left to get the Assistant
Superintendent, Sugarman.
When Sugarman arrived on the scene, accompanied by Nisbet
and Cloke, Sugarman “asked the owner of the truck to relocate
his vehicle to an area that was not impeding traffic and
obstructing the [buses] and cars from entering the school

grounds.” DSF Ex. 2 ¶ 22. Sugarman also “asked the protestors to
relocate to a different location that was either across the
street or further down the sidewalk.” Id. ¶ 23. In addition, he
explained that “smoking was prohibited on school grounds and
their presence was obstructing parents from dropping off their
children for school.” Id. “The protestors complied with
[Sugarman’s] request to relocate and [Sugarman] had no further
interaction with them after that.” Id. ¶ 24.
Sugarman identified on a map the area where the protesters
were located and the two places he suggested as alternative
locations. One place was just past the exit from the Middle
School grounds used by buses and other vehicles, and was on the

sidewalk. The other alternative was on the other side of the
entrance to the Middle School property just across from the
driveway from where the protesters were located; there was no
sidewalk in this area. During her deposition, Irizarry could not
recall what alternative location Sugarman suggested to the
protesters.
During his deposition Sugarman testified that “there w[ere]
three people there that [he] asked politely to move.” DSF Ex. 13
(Sugarman Depo.) (ECF No. 169-1), at 38:10–11. Sugarman avers
that he “never prohibited the protestors from protesting,” id.
¶ 28, and “never threatened to have any of the protestors
arrested or trespassed from the school property,” id. ¶ 29.

Although a Plainfield police officer visited the Middle School
while the protesters were present, the officer was “across the
street” and “was patrolling” before “pull[ing] into the school.”
DSF Ex. 14, at 43:18–20. The officer “did not come out far.” Id.
at 44:19. The police officer was not called by Sugarman.
In their Local Rule 56(a)(1) Statement of Undisputed
Material Facts, the defendants cite to portions of Irizarry’s
deposition testimony. See DSF Ex. 14. However, the plaintiffs do
not cite to any of her testimony, either in their Local Rule
56(a)(2) Statement or in their briefs. Despite the fact that
Irizarry is the only plaintiff who was present at the September
1, 2021 protest, and thus has personal knowledge, she has not

submitted any affidavit of her own, nor any affidavit of Stacy
Vargas or Ryan.
In paragraph 57 of their Local Rule 56(a)(2) Statement, the
plaintiffs cite to paragraph 14 of Reale’s affidavit in which he
refers to a YouTube video and states, “I have also viewed my co-
Plaintiff’s recorded interaction which involves her First
Amendment claims at the following URL . . . .” However, this
YouTube video has not been authenticated and is therefore
inadmissible. Under Federal Rule of Evidence 901(a), “[t]o
satisfy the requirement of authenticating or identifying an item
of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it

is.” Reale was not present on September 1, 2021, so he is not “a
witness with knowledge” of the event, Fed. R. Evid. 901(b)(2),
and there is no suggestion in the plaintiffs’ papers that there
is any other basis on which he could authenticate the video.
The plaintiffs object to certain paragraphs in the
defendants’ Local Rule 56(a)(1) Statement, stating that they
“were denied the reasonable ability to have access to Mr. Nisbet
for a deposition, and examination of him requires either a
deposition or a trial.” Pls.’ Local Rule 56(a)(2) Statement in
Opp. to Summ. J. (ECF No. 177-2) (“PSF”) ¶ 33. See also id.
¶¶ 34–35, 51–57, 59–65 (making the same statement). This does
not create a genuine issue with respect to any of the facts set

forth in the defendants’ Local Rule 56(a)(1) Statement. In
addition, the court notes that the defendants made a
supplemental disclosure about Nisbet approximately three weeks
before the close of discovery, after he had been mentioned in a
deposition, and that briefing of discovery disputes continued
after that disclosure. Thus Irizarry, who is represented by
counsel, had ample time to take steps to depose Nisbet. As the
defendants state, “Nisbet’s disclosure was made to Plaintiffs
while discovery was still open. Plaintiffs knew the security
guards existed since well before this lawsuit was filed. Despite
this knowledge, Plaintiffs never requested any information as to
the identities of the school security officers at any point[]

during discovery.” Defs.’ Reply in Supp. of Summ. J. (ECF No.
185) (“Defs.’ Reply”), at 8.
II. LEGAL STANDARD
A motion for summary judgment may not be granted unless the
court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994). Rule 56(c) “mandates the entry
of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at
322.
When ruling on a motion for summary judgment, the court
must respect the province of the jury. The court, therefore, may
not try issues of fact. See, e.g., Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks Bd. of
Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce
of Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is
well-established that “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of the

judge . . . .” Anderson, 477 U.S. at 255. Thus, the trial
court’s task is “carefully limited to discerning whether there
are any genuine issues of material fact to be tried, not
deciding them. Its duty, in short, is confined . . . to issue-
finding; it does not extend to issue-resolution.” Gallo, 22 F.3d
at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment. An issue is “genuine
. . . if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248 (internal quotation marks omitted). A material fact is one
that would “affect the outcome of the suit under the governing
law.” Id. As the Court observed in Anderson: “[T]he materiality
determination rests on the substantive law, [and] it is the
substantive law’s identification of which facts are critical and
which facts are irrelevant that governs.” Id. Thus, only those
facts that must be decided in order to resolve a claim or
defense will prevent summary judgment from being granted. When
confronted with an asserted factual dispute, the court must
examine the elements of the claims and defenses at issue on the
motion to determine whether a resolution of that dispute could

affect the disposition of any of those claims or defenses. See
Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d
Cir. 2014) (“‘[A] complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.’” (quoting Celotex, 477 U.S.
at 323)). Immaterial factual disputes will not prevent summary
judgment.
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant . . . and draw all reasonable
inferences in [the non-movant’s] favor.” Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson

Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir.
1990) (alteration in original)). Nonetheless, the inferences
drawn in favor of the nonmovant must be supported by the
evidence. “[M]ere speculation and conjecture is insufficient to
defeat a motion for summary judgment.” Stern v. Trustees of
Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997) (Calabresi, J.,
dissenting) (internal quotation marks omitted) (quoting W. World
Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)).
Moreover, the “mere existence of a scintilla of evidence in
support of the [nonmovant’s] position will be insufficient;
there must be evidence on which [a] jury could reasonably find
for the [nonmovant].” Anderson, 477 U.S. at 252.

Also, the nonmoving party cannot simply rest on the
allegations in its pleadings since the essence of summary
judgment is to go beyond the pleadings to determine if a genuine
issue of material fact exists. See Weinstock, 224 F.3d at 41.
“Although the moving party bears the initial burden of
establishing that there are no genuine issues of material fact,”
id., if the movant demonstrates an absence of such issues, a
limited burden of production shifts to the nonmovant, who must
“demonstrate more than some metaphysical doubt as to the
material facts, . . . [and] must come forward with specific
facts showing that there is a genuine issue for trial,”
Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d

Cir. 1993) (emphasis, quotation marks and citations omitted).
“Accordingly, unsupported allegations do not create a material
issue of fact.” Weinstock, 224 F.3d at 41. If the nonmovant
fails to meet this burden, summary judgment should be granted.
Because one of the plaintiffs in this case is proceeding
pro se, the court must read the pro se plaintiff’s pleadings and
other documents liberally and construe them in a manner most
favorable to the plaintiff. See Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994). Moreover, because the process of summary
judgment is “not obvious to a layman,” Vital v. Interfaith
Medical Ctr., 168 F.3d 615, 620 (2d Cir. 1999) (internal
quotation marks and citation omitted), the district court must

ensure that a pro se plaintiff understands the nature,
consequences, and obligations of summary judgment. See id. at
620-21. Thus, the district court may itself notify the pro se
plaintiff as to the nature of summary judgment; the court may
find that the opposing party’s memoranda in support of summary
judgment provide adequate notice; or the court may determine,
based on thorough review of the record, that the pro se
plaintiff understands the nature, consequences, and obligations
of summary judgment. See id.
After reviewing the defendant’s memorandum in support of
summary judgment and the pro se plaintiff’s submissions in
opposition to summary judgment in this case, the court concludes

that the pro se plaintiff understands the nature, consequences
and obligations of summary judgement. First, the defendant
served the notice to pro se litigants required by Local Rule
56(b). Second, the defendant’s memorandum states the nature and
consequences of summary judgment. Third, the plaintiffs’
memorandum also states the nature and consequences of summary
judgment. See Pls.’ Mem. in Supp. of Obj. to Mot. for Summ. J.
(ECF No. 177-3) (“Pls.’ Obj.”), at 4–5. The court therefore
finds that the pro se plaintiff in this case understands the
nature, consequences and obligations of summary judgment.
Finally, “the Court may consider only admissible evidence
in ruling on summary judgment.” Ferraresso v. Town of Granby,

646 F. Supp. 2d 296, 301 (D. Conn. 2009).
III. DISCUSSION
A. Count One: ADA Claim by Reale
Reale claims that Haskell, Sugarman, and the Board violated
Title II of the ADA4 when they enforced a facemask requirement
against him at a public meeting during the coronavirus pandemic.5
“To establish a claim under Title II, a plaintiff must
demonstrate ‘(1) that she is a qualified individual with a
disability; (2) that she was excluded from participation in a
public entity’s services, programs or activities or was
otherwise discriminated against by a public entity; and (3) that
such exclusion or discrimination was due to her disability.’”

Tardif v. City of New York, 991 F.3d 394, 404 (2d Cir. 2021)
(quoting Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016)). The
first element, i.e. that a plaintiff is a qualified individual

4 The Amended Complaint cites to Title III of the ADA, see Am. Compl. ¶¶ 17–
19, 22, 26, but is undisputed that his claim is being brought under Title II.

5 Reale purports to sue defendants Haskell and Sugarman in their individual
capacities for a Title II violation. However, “neither Title II of the ADA
nor § 504 of the Rehabilitation Act provides for individual capacity suits
against state officials.” Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,
280 F.3d 98, 107 (2d Cir. 2001); see also Walker v. Thibault, No. 23-7896,
2025 WL 294507, at *3 (2d Cir. Jan. 24, 2025) (holding that municipal
officials “were entitled to summary judgment on these claims” in their
individual capacities under Title II pursuant to Garcia).
with a disability, can be shown by any one of three ways. “The
term ‘disability’ means, with respect to an individual--(A) a
physical or mental impairment that substantially limits one or

more major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1).6 “Major life activities”
include but are not limited to “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and
working.” Id. § 12102(2)(A).
Here there has been a complete failure of proof by Reale
with respect to each of the three ways a plaintiff can show that
he is a qualified individual with a disability. Because Reale
cannot establish the first element of this claim, the defendants

are entitled to summary judgment on Count One.
1. Substantially Limits a Major Life Activity
Reale has failed to offer evidence that creates a genuine
issue as to whether he has “a physical or mental impairment that
substantially limits one or more major life activities.” Id.

6 Reale contends that the ADA Amendments Act of 2008 (“ADAAA”) encompasses his
alleged disability and thus presents a “fatal flaw in Defendants’ argument.”
Pls.’ Obj., at 9. “Congress, however, retained the term ‘substantially
limits’ in this amendment, while instructing that ‘the definition of
disability . . . shall be construed in favor of broad coverage . . . , to the
maximum extent permitted by the terms of this chapter,’ 42 U.S.C.
§ 12102(4)(A) (emphasis added).”). B.C. v. Mount Vernon Sch. Dist., 837 F.3d
152, 161 n.10 (2d Cir. 2016).
§ 12102(1)(A).
“[I]n assessing whether a plaintiff has a disability, [we]
have been careful to distinguish impairments which merely affect

major life activities from those that substantially limit those
activities.” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 160
(2d Cir. 2016) (alteration in original) (quoting Ryan v. Grae &
Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998)). “A plaintiff
seeking redress under the ADA must ‘show that any limitations
are in fact substantial, not amounting to only a mere difference
in conditions, manner, or duration.’” Id. (quoting Bartlett v.
N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 80 (2d Cir. 1998)).
“Factors to consider in determining whether a major life
activity is substantially limited include: the nature and
severity of the impairment; its duration or expected duration;
and the existence of any actual or expected permanent or long

term impact.” Dominguez v. Bd. of Educ. of Yonkers City Sch.
Dist., No. 23 CIV. 2460 (NSR), 2024 WL 3427217, at *4 (S.D.N.Y.
July 16, 2024) (internal quotation marks and citations omitted).
It is “well-established that an impairment does not
significantly restrict a major life activity if it results only
in mild limitations.” Id. (internal quotation marks and
citations omitted).
[C]ourts in this circuit have held that a substantial
limitation on breathing is established when a
plaintiff puts forward evidence of episodes requiring
medical interventions or chronic breathing problems.
Compare Gorbea v. Verizon N.Y., Inc., No. 11 Civ.
3758, 2014 WL 917198, at *8 (S.D.N.Y. Mar. 10, 2014)
(finding plaintiff’s asthma, which was exacerbated by
high temperatures, chemicals, and dust, did not
substantially limit her breathing, despite a history
of asthma, use of an inhaler, and a diagnosis of
reactive airway dysfunction syndrome and
bronchospasm); Boughton v. Town of Bethlehem, No. 13
Civ. 1583, 2015 WL 5306077, at *5–6 (N.D.N.Y. Sept.
10, 2015) (finding plaintiff’s “uncontrolled
hypertension,” exacerbated by extreme weather, did not
substantially limit his ability to breathe when it
resulted in “infrequent breathing problems” of chest
tightness and breathing difficulties), with Hoeffner
v. Cnty. of Orange, No. 17 Civ. 9344, 2020 WL 1165851,
*6 (S.D.N.Y. Mar. 10, 2020) (finding plaintiff who
suffered nineteen asthma attacks during a three-month
period caused by her exposure to mold had a disability
within the meaning of the ADA); Murtha v. N.Y. State
Gaming Comm’n, 2019 WL 4450687, *10 (S.D.N.Y. Sept.
17, 2019) (finding plaintiff adequately pleaded that
his ability to breathe was substantially impaired when
he alleged that his asthma, caused by a respiratory
allergy, resulted in “medical emergencies including
three hospitalizations over a three-month period”).

Norman v. NYU Langone Health Sys., 492 F. Supp. 3d 154, 164
(S.D.N.Y. 2020), aff’d, No. 20-3624-CV (L), 2021 WL 5986999 (2d
Cir. Dec. 17, 2021).
In Shine v. New York City Housing Authority, the plaintiff
“allege[d] that she experiences ‘trouble breathing at night.’”
No. 19-CV-04347 (RA), 2020 WL 5604048, at *7 (S.D.N.Y. Sept. 18,
2020). The court concluded that she had failed to plead facts
that established a substantial limitation. The court explained:
Breathing is one of the enumerated major life
activities covered under the ADA regulations. 28
C.F.R. § 35.108(c)(1)(i). As described above, courts
in this Circuit have established that plaintiffs must
plead more than vague or conclusory allegations
regarding “difficulty” or “trouble” conducting a major
life activity. See [Parada v. Banco Indus. De
Venezuela, C.A., 753 F.3d 62, 69 (2d Cir. 2014)];
Farina, 458 F. App'x. at 15; [Nadel v. Shinseki, 57 F.
Supp. 3d 288, 296 (S.D.N.Y. 2014)]. Shine is thus
required to plead additional facts beyond simply
claiming that she has “trouble breathing at night,”
Compl. ¶ 42, to establish a substantial limitation,
Farina, 458 F. App’x. at 15; Nadel, 57 F. Supp. 3d at
296.

Id. On the other hand, Shine alleged with respect to her minor
son that his “difficulty breathing is severe enough that he
requires use of an asthma machine to ‘breathe properly.’” Id.
The court concluded that “[t]his is sufficient to allege that
C.W. experiences a substantial limitation to the major life
activity of breathing, and therefore has a cognizable disability
within the meaning of the ADA.” Id.
In Johnson v. Mount Sinai Hospital Group, Inc., the
plaintiff alleged that facemasks “are uncomfortable and hot to
wear,” and that “[t]hey make it difficult to breathe,” and the
court concluded that she had failed to plausibly allege a
substantial limitation of her breathing. No. 22-CV-2936 (AMD)
(JRC), 2023 WL 2163774, at *4 (E.D.N.Y. Feb. 22, 2023), aff’d,
No. 23-466, 2024 WL 3289475 (2d Cir. July 3, 2024).
“Whether a plaintiff with asthma is substantially limited
in his ability to work or to breathe is a fact specific
question.” Murtha, No. 17 CIV. 10040 (NSR), 2019 WL 4450687, at
*10 (S.D.N.Y. Sept. 17, 2019) (citing Burke v. Niagara Mohawk
Power Corp., 142 Fed. App’x 527, 529 (2d Cir. 2005) (noting that
“asthma does not invariably impair a major life activity”)). See
also id. (quoting Hendler v. Intelecom USA, Inc., 963 F. Supp.

200, 207 (E.D.N.Y. 1997) (“Because one plaintiff with asthma is
substantially limited in the major life activity of breathing
does not mean that every plaintiff with asthma has a qualifying
disability under the ADA.”)).
Reale has merely offered evidence that he suffers from
sinus and chest congestion, which in February 2018 and in
January 2020 resulted in him seeing a doctor because the
condition had persisted for one or two weeks. He also has
produced evidence that he has associated allergies, which can
result in asthma, and that prior to 2018 he used an over-the-
counter inhaler. While the parties disagree about whether Reale
at any time used an inhaler for which a prescription was

required, that is not a material issue because any such use at
some unspecified time prior to 2019 does not create a genuine
issue as to his condition in September 2021 in light of the more
recent medical records. Reale provides no evidence that either
of his conditions has ever limited his breathing to any
significant degree. The only medical records show that, upon
examination, his respiratory functions were found to be normal--
so much so that for exercise, he tries to take walks. While
Reale gets uncomfortable and feels that it is hard to breathe if
he wears a facemask or face shield, that discomfort was not so
great that he was deterred from walking four laps around a
track, wearing an N95 mask in or around May 2020.

Thus, Reale has failed to put forth evidence that could
show that he has a condition that is severe, or even a condition
that has had a permanent or long-term impact on him; nor any
evidence that he has had episodes requiring medical intervention
or that he has had chronic breathing problems, such as the
evidence in Shine with respect to Shine’s son. Rather, the
evidence offered by Reale shows only that his conditions have
resulted in mild limitations, i.e. at most, infrequent breathing
problems. Thus Reale’s claim is comparable to that of the mother
in Shine and the plaintiff in Johnson, as opposed to the claim
with respect to Shine’s son.
2. Record of Such an Impairment

Reale has failed to offer evidence that creates a genuine
issue as to whether he has “a record of such an impairment.”
“[T]he Second Circuit has held that to form the basis for an ADA
claim, the ‘record of’ disability ‘must be one that shows an
impairment that satisfies the ADA.’” Williams-Moore v. Quick
Int’l Courier, LLC, No. 22-CV-3592 (RPK) (RML), 2023 WL 6292540,
at *4 (E.D.N.Y. Sept. 26, 2023) (quoting Colwell v. Suffolk
Cnty. Police Dep’t, 158 F.3d 635, 645 (2d Cir. 1998)). “[A]
record reflecting a plaintiff’s classification as disabled for
other purposes or under other standards is not enough.” Niles v.
New York City Hum. Res. Admin., No. 22-CV-6307 (AMD) (JAM), 2024
WL 496346, at *5 (E.D.N.Y. Feb. 8, 2024) (quoting Colwell, 158

F.3d at 645). Reale has offered no records of a physical or
mental impairment that substantially limits a major life
activity, nor has he presented any other evidence from which a
legitimate inference can be drawn that he has a record of such
an impairment.
3. Regarded as Having Such an Impairment
Reale has failed to offer evidence that creates a genuine
issue as to whether he was ever “regarded as having such an
impairment” under 42 U.S.C. § 12102(1)(C). “[T]he plaintiff must
show that the [defendant] regarded [him] as . . . having an
impairment that substantially limited a major life activity.”
Ragusa v. Malverne Union Free Sch. Dist., 381 F. App’x 85, 88

(2d Cir. 2010) (quoting Colwell, 158 F.3d at 646); accord
Whitehead v. United Parcel Serv., Inc., 387 F. App’x 16, 18 (2d
Cir. 2010) (quoting Murphy v. United Parcel Serv., Inc., 527
U.S. 516, 521–22 (1999)). Reale has offered no evidence that any
defendant ever regarded him as having a physical or mental
impairment of any kind, much less one that substantially limits
a major life activity.
B. Count Two: First Amendment Claim by Reale
Reale claims that Haskell, Sugarman, and the Board violated
his rights under the First Amendment when they refused to let
him speak in-person without a facemask during the September 8,
2021 Board meeting. He argues that “under color of law, custom

and usage per 42 U.S.C. § 1983, the facts set forth clearly in
the Record demonstrate that Plaintiff Reale’s rights to be
present in person, to be not challenged as to his right to
comment per the Board of Ed’s own comment policy and that the
Plaintiff be allowed to publicly comment were violated.” Pls.’
Obj., at 11. The defendants maintain that they did not violate
the plaintiff’s First Amendment rights by enforcing the state
mask mandate in accordance with the Board’s facemask policy. The
court agrees.7
In their memorandum of law, the defendants maintain that
the test that is applicable to Reale’s First Amendment claim, as
opposed to Irizarry’s First Amendment claim, is that used in

Jacobson v. Massachusetts, 197 U.S. 11 (1905). That proposition
has been called into question by the Supreme Court’s decision in
Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020).
But Jacobson has not been overruled, nor does the per curiam

7 Because the facemask policy did not violate the First Amendment, the court
need not undertake a qualified immunity analysis as to defendants Haskell and
Sugarman in their individual capacities. See Pearson v. Callahan, 555 U.S.
223, 236 (2009) (“The judges of the district courts and the courts of appeals
should be permitted to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand.”). Similarly,
the court need not analyze whether the policy was a municipal or state policy
for purposes of a Monell claim against the Board, because the policy was
constitutional.
opinion Roman Catholic Diocese state what limitations there are
with respect to its applicability. Thus, a number of courts have
concluded that it is unclear whether the traditional First

Amendment analysis should be used for a claim such as Reale’s
claim in this count, as opposed to the test in Jacobson.8

8 In Jones v. Cuomo, the court explained:

[I]n a per curiam opinion in Roman Catholic Diocese, the Supreme
Court temporarily enjoined the enforcement of a New York
executive order that placed restrictions on in-person religious
services. 141 S. Ct. at 63. In reaching this determination, the
Court undertook a traditional constitutional analysis of
Plaintiffs’ First Amendment free exercise claims, and found that
the executive order was unable to withstand strict scrutiny. Id.
at 66-68. Any discussion of or reference to the Jacobson standard
is notably absent from the Court’s decision. Instead, in a
concurring opinion, Justice Gorsuch indicated that the “usual
constitutional standards should apply during the current
pandemic.” Id. at 71 (Gorsuch, J., concurring). Referring
specifically to Jacobson, Justice Gorsuch characterized the case
as a “modest decision” that has been “mistaken . . . for a
towering authority that overshadows the Constitution[.]” Id.
Justice Gorsuch emphasized that Jacobson “involved an entirely
different mode of analysis, an entirely different right, and an
entirely different kind of restriction.” Id. at 70.

On remand, the Second Circuit determined that the parties’
and lower courts’ reliance on Jacobson “as support for the notion
that courts should defer to the executive in the face of the
COVID-19 pandemic” “was misplaced.” Agudath Israel of Am., 983
F.3d at 635. The Court observed that Jacobson “predated” the
“tiers of scrutiny,” “was decided before the First Amendment was
incorporated against the states, and ‘did not address the free
exercise of religion.’” Id. (quoting Phillips v. City of New
York, 775 F.3d 538, 543 (2d Cir. 2015)).

In the wake of the Roman Catholic Diocese decision, some
courts’ confidence in Jacobson has similarly waned. See, e.g.,
Amato, 2021 WL 1430918, at *7 & n.11 (applying traditional tiers
of scrutiny to COVID-19 restrictions); Plaza Motors of Brooklyn
v. Cuomo, No. 20 Civ. 4851 (WFK) (SJB), 2021 WL 222121, at *4-5
(E.D.N.Y. Jan. 22, 2021) (declining to apply Jacobson to
challenge of the same executive order at issue in Roman Catholic
Diocese). However, other courts in this Circuit have cabined the
Roman Catholic Diocese decision to First Amendment free exercise
challenges, and have continued to apply Jacobson to other
challenges to COVID-19 restrictions. See Hopkins Hawley LLC v.
Cuomo, No. 20 Civ. 10932 (PAC), 518 F.Supp.3d 705, 712–13,
(S.D.N.Y. Feb. 9, 2021) (“Although Roman Catholic Diocese and
Consequently, this court has analyzed Reale’s First Amendment
claim under both the traditional First Amendment analysis and
under the Jacobson test. Having done so, the court concludes

that the defendants are entitled to summary judgment regardless
of whether the traditional First Amendment analysis is used or
the test in Jacobson is used.
Accordingly, the defendants’ motion for summary judgment is

Agudath Israel raise doubts as to Jacobson’s continuing
viability, Jacobson bears directly on this case and has not been
explicitly overruled, which means that this Court is bound by
it.”); see also Our Wicked Lady, 2021 WL 915033, at *3; Moxie
Owl, Inc. v. Cuomo, No. 21 Civ. 194 (MAD) (DJS), 527 F.Supp.3d
196, 201 n.1 (N.D.N.Y. Mar. 18, 2021). And a number of courts in
other circuits have taken similar approaches. See, e.g., Big Tyme
Inv., L.L.C. v. Edwards, 985 F.3d 456, 470-71 (5th Cir. 2021)
(holding that Jacobson “govern[s] our review of emergency public
health measures, regardless of the rights at stake.”); Stewart v.
Justice, No. 20 Civ. 611 (RCC), 518 F.Supp.3d 911, 917, (S.D.W.
Va. Feb. 9, 2021) (“[T]he Court declines to read the tea leaves
of Roman Catholic Diocese and will follow the [Jacobson] rule
adopted by a majority of courts.”); M. Rae, Inc. v. Wolf, No. 20
Civ. 2366 (CCC), 509 F.Supp.3d 235, 246, (M.D. Pa. Dec. 23, 2020)
(“The bottom line for our purposes is that Jacobson is
controlling precedent until the Supreme Court or Third Circuit
Court of Appeals tell us otherwise.”).

More recently, a sister court in this District held that
Jacobson remained applicable on stare decisis grounds, reasoning
that if a Supreme Court decision “‘has direct application in a
case, yet appears to rest on reasons rejected in some other line
of decisions, the [lower court] should follow the case which
directly controls, leaving to [the Supreme] Court the prerogative
of overruling its own decisions.’” Hopkins Hawley LLC, 2021 WL
1894277, at *5 n.4 (quoting Rodriguez de Quijas v. Shearson/Am.
Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526
(1989)). The Court finds this reasoning persuasive. That said, in
an abundance of caution, the Court will assess the Executive
Order and Plaintiff's claims thereto under both Jacobson and the
traditional tiers of scrutiny.

542 F. Supp. 3d 207, 217–19 (S.D.N.Y. 2021) (footnote omitted) (alterations
in original). See also Amato v. Elicker, 534 F. Supp. 3d 196, 210 n.11 (D.
Conn. 2021) (“However, in view of the uncertainty created by Roman Catholic
Diocese of Brooklyn, this Court applies . . . the traditional tiers of
scrutiny.”).
being granted as to Count Two.
1. Traditional First Amendment Analysis
The First Amendment standards applicable to the Board

meeting, which took place at a public school, depend on what
type of forum it was. “We analyze speech restrictions on
publicly owned property according to a forum-based approach.
Under this approach, ‘[f]ora for expression are classified into
four categories, which fall along a spectrum extending from
those deserving the greatest constitutional protection to those
deserving the least constitutional protection: (1) the
traditional public forum; (2) the designated public forum; (3)
the limited public forum; and (4) the non-public forum.’” Tyler
v. City of Kingston, 74 F.4th 57, 61 (2d Cir. 2023) (quoting
R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533,
539 (2d Cir. 2011)) (citing Cornelius v. NAACP Legal Def. &

Educ. Fund, Inc., 473 U.S. 788, 797, 799–800 (1985)).
The third of these options, “the ‘limited’ public forum,
exists ‘where the government opens a non-public forum but limits
the expressive activity to certain kinds of speakers or to the
discussion of certain subjects.’” Hotel Emps. & Rest. Emps.
Union, Loc. 100 of New York, N.Y. & Vicinity, AFL CIO v. City of
N.Y. Dep’t of Parks & Rec., 311 F.3d 534, 545 (2d Cir. 2002)
(quoting N.Y. Magazine v. Met. Transp. Auth., 136 F.3d 123, 128
n.2 (2d Cir. 1998)). “Examples of limited public fora include
. . . open school board meetings . . . .” Id. (citing City of
Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Rels. Comm’n, 429
U.S. 167, 174–76 (1976)). See also Potanovic v. Town of Stony

Point, No. 23-204-cv, 2024 WL 3159221, at *1 (2d Cir. June 25,
2024) (“[T]he public input component of the Town Board meetings
is clearly a limited public forum.” (citing Tyler, 74 F.4th at
61)); Jones v. Bay Shore Union Free Sch. Dist., 947 F. Supp. 2d
270, 278 (E.D.N.Y. 2013) (“Typically, school board meetings are
limited public fora.”).
“[I]n limited public fora such as city council meetings,
government entities are permitted to restrict the form or manner
of speech offered by members of the public, even if such speech
addresses the topic or agenda of that forum. Such restrictions
on the form of speech are not subject to strict scrutiny; courts
need only assess whether the restrictions are reasonable and

viewpoint neutral.” Tyler, 74 F.4th at 63. “[F]or those who seek
to speak on a topic or in a manner not contemplated by the
public entity in opening the limited public forum[,] there is no
fundamental right of freedom of speech.” The Good News Club v.
Milford Cent. Sch., 202 F.3d 502, 510 (2d Cir. 2000) (internal
quotation marks omitted), rev’d on other grounds sub nom. Good
News Club v. Milford Cent. Sch., 533 U.S. 98 (2001).
a. Reasonableness
“In a limited public forum, the reasonableness analysis
turns on the particular purpose and characteristics of the forum
and the extent to which the restrictions on speech are
‘reasonably related’ to maintaining the environment the

government intended to create in that forum.” Tyler, 74 F.4th at
63 (quoting Hotel Emps., 311 F.3d at 554 (internal quotation
marks omitted)). “‘[T]o survive First Amendment scrutiny[,] the
restriction need not be the most reasonable or the only
reasonable limitation imaginable,’ . . . but simply ‘consistent
with the government’s legitimate interest in preserving the
property for the use to which it is lawfully dedicated[.]’” Id.
(alterations in original) (quoting Byrne v. Rutledge, 623 F.3d
46, 59 (2d Cir. 2010); Hotel Emps., 311 F.3d at 554).
“Significantly, the existence of ‘alternative channels’ of
communication is a relevant factor in assessing the
reasonableness of a restriction on speech in a limited public

forum.” Id. (quoting Perry Educ. Ass’n v. Perry Loc. Educators’
Ass’n, 460 U.S. 37, 53 (1983)).
There is no genuine issue of material fact as to whether
the Board’s facemask policy was reasonable because it was
consistent with a legitimate interest of the Board.
As to the Board’s legitimate interest, the facemask policy
begins by incorporating by reference Executive Order 13A.
Executive Order 13A is titled Protection of Public Health and
Safety During COVID-19 Pandemic – Revised Order for Masks and
Face Coverings, Nursing Home Staff Testing. There is no genuine
issue as to the fact that protection of public health and safety
during the COVID-19 pandemic is a legitimate governmental

interest. In Roman Catholic Diocese of Brooklyn v. Cuomo, the
Court stated that “[s]temming the spread of COVID-19 is
unquestionably a compelling interest.” 592 U.S. at 18. In
Stewart v. Justice, the court held that “[s]lowing the spread of
a novel virus that has already killed over 250,000 Americans is
a compelling, and at least significant, government interest”
supporting an executive order “requiring individuals to wear
masks indoors.” 502 F. Supp. 3d 1057, 1066 (S.D.W. Va. 2020)
(citations omitted). Also, in Murray-Nolan v. Rubin the court
held that a local school board in New Jersey had “substantial
and related underlying governmental interests” in the
“continuation of in-person proceedings while preventing of the

spread of COVID.” No. CV 22-801 (EP) (AME), 2022 WL 4104343, at
*9 (D.N.J. Sept. 8, 2022), aff’d sub nom. Falcone v. Dickstein,
92 F.4th 193 (3d Cir. 2024), cert. denied sub. nom. Murray-Nolan
v. Rubin, 144 S. Ct. 2560 (2024). See also Oakes v. Collier
County, 515 F. Supp. 3d 1202, 1216 (M.D. Fla. 2021) (citing
Roman Cath. Diocese, 592 U.S. at 18) (evaluating a facemask
requirement).
Nor is there any genuine issue as to whether the Board’s
facemask policy was consistent with the legitimate governmental
interest in protecting public health and safety during the
COVID-19 pandemic. As set forth in Executive Order 13A, the
Governor of Connecticut “issued various executive orders to

protect public health, limit transmission of COVID-19, and
mitigate the effects of the COVID-19 pandemic.” DSF Ex. 8, at 2.
The Governor explained that “the COVID-19 pandemic remains a
grave threat to public health and safety and civil preparedness
in the State of Connecticut,” id., in part because “according to
the CDC, as a result of increased infection rates and the higher
transmissibility of the Delta variant, all eight of
Connecticut’s counties are considered areas of substantial
transmission,” id. at 4. The Governor concluded that, because
“breakthrough infection and transmission among vaccinated people
are possible,” id., “in certain indoor settings where the risk
of COVID-19 infection is higher because of the concentration of

large numbers of people, the presence of people with underlying
conditions or compromised immune systems, the difficulty of
ascertaining who has been vaccinated may require the universal
wearing of masks and face coverings,” id. at 3. In Oakes the
court held that a similar mask requirement “promotes the
[government]’s interest more effectively than no requirement”
and “is not substantially broader than necessary . . . to
prevent the spread of COVID-19 . . . . In other words, it is
narrowly tailored.” 515 F. Supp. 3d at 1216.
Underscoring the reasonableness of the Board’s facemask
policy is the fact that an exemption was provided for people who
did not want to wear a facemask because of a medical condition,

behavioral condition, or disability, so long as they provided
written documentation from an appropriate source that they
qualified for the exemption, which documentation did not have to
name or describe the condition that qualified the person for the
exemption. Further underscoring the reasonableness of the policy
is the fact that it provided alternative means for participation
in the Board’s meetings. See Tyler, 74 F.4th at 63 (quoting
Perry, 460 U.S. at 53). Online participants were not required to
give any justification for their remote attendance, nor did they
have to wear a facemask. This policy was published on the
Board’s website, and it was attached to each meeting agenda.
Reale argues that the Board’s policy was not reasonable

because he could have socially distanced himself from other
attendees, see Pls.’ Obj., at 7, 11, and he states that he took
“measurements using a measuring tape” to demonstrate how much
space he had, Reale Aff. ¶ 2. But given that a time, place, and
manner restriction in a limited public forum does not have to be
“the most reasonable or the only reasonable limitation
imaginable,” Tyler, 74 F.4th at 63 (quoting Byrne, 623 F.3d at
59), Reale’s evidence as to what he maintains is a more
reasonable restriction does not create a genuine issue of
material fact.
b. Viewpoint Neutrality
There is no genuine issue of material fact as to whether

the Board’s facemask policy was viewpoint neutral. There is no
language in the policy that can be read as suggesting viewpoint
discrimination. The policy contains a blanket requirement that
individuals wear a medical mask unless they provide
documentation that they are exempt, and in Falcone, the court
held that disobeying a mask requirement is not a
constitutionally recognized form of expression:
Unlike burning a flag, wearing a medical mask--or
refusing to do so--is not the type of thing someone
typically does as “a form of symbolism.” [Spence v.
Washington, 418 U.S. 405, 410 (1974)]. The American
flag is inherently symbolic. See [Texas v. Johnson,
491 U.S. 397, 405 (1989)]. A medical mask is not. It
is a safety device--“protective equipment” used “to
protect the wearer from particles or from liquid
contaminating the face.” N95 Respirators, Surgical
Masks, Face Masks, and Barrier Face Coverings, FDA
(Mar. 10, 2023), https://perma.cc/E8FM-2M2K. To combat
COVID-19, people wear it to curb the spread of an
airborne disease. Skeptics are free to--and did--voice
their opposition through multiple means, but
disobeying a masking requirement is not one of them.
One could not, for example, refuse to pay taxes to
express the belief that “taxes are theft.” Nor could
one refuse to wear a motorcycle helmet as a symbolic
protest against a state law requiring them. The binary
choice envisioned by [the appellant]--either
disobeying the Executive Order mandating the wearing
of a protective mask or not speaking at all--is a
false one. See Appellant Br. 30-31. We thus agree with
the District Court that her refusal to wear a mask was
not constitutionally protected.

Falcone, 92 F.4th at 207–08, cert. denied sub nom. Murray-Nolan
v. Rubin, 144 S. Ct. 2560 (2024). “Every court to address the
issue has reached the same conclusion.” Id. at 208 n.10
(collecting cases).

Reale contends that the Board’s facemask policy had a
disparate impact on individuals who, like him, seek to “voice
[his] opinions on public policy in person [against] those
supporting continued mask mandates.” Reale Aff. ¶ 17. See also
Pls.’ Sur-Reply (ECF No. 194), at 3 (arguing that the net effect
of the defendants’ actions was to “suppress public participation
based on the known and anticipated content of public speech”).
However, even assuming that a facemask requirement could have a
disparate impact on individuals like Reale,
viewpoint disparity, standing alone, does not
constitute proof of viewpoint discrimination. See
R.A.V. v. City of St. Paul, 505 U.S. 377, 385, 112
S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“We have long
held, for example, that nonverbal expressive activity
can be banned because of the action it entails, but
not because of the ideas it expresses—so that burning
a flag in violation of an ordinance against outdoor
fires could be punishable, whereas burning a flag in
violation of an ordinance against dishonoring the flag
is not.” (citing cases)); Madsen v. Women’s Health
Ctr., 512 U.S. 753, 763, 114 S.Ct. 2516, 129 L.Ed.2d
593 (1994) (“[T]he fact that the injunction covered
people with a particular viewpoint does not itself
render the injunction content or viewpoint based.”)
. . . .

Where a law is on its face viewpoint neutral
(e.g., when it applies to conduct that is not
primarily expressive) but has a differential impact
among viewpoints, the inquiry into whether the law is
in fact viewpoint discriminatory turns on the law’s
purpose. Such a law is viewpoint discriminatory only
if its purpose is to impose a differential adverse
impact upon a viewpoint. See R.A.V., 505 U.S. at 390,
112 S.Ct. 2538 (“Where the government does not target
conduct on the basis of its expressive content, acts
are not shielded from regulation merely because they
express a discriminatory idea or philosophy.”
(emphasis added)); Madsen, 512 U.S. at 762–63, 114
S.Ct. 2516 (holding that an injunction against anti-
abortion protesters was not viewpoint discriminatory
because “none of the restrictions imposed by the court
were directed at the contents of petitioner’s
message.” (emphasis added)); id. at 763, 114 S.Ct.
2516 (“We thus look to the government’s purpose as the
threshold consideration.” (emphasis added)).

Boy Scouts of Am. v. Wyman, 335 F.3d 80, 93–94 (2d Cir. 2003).
There is no genuine issue as to the fact that the facemask
requirement was not enacted for the purpose of viewpoint
discrimination.
2. Jacobson v. Massachusetts
Under Jacobson, courts are required “to uphold governmental
measures to protect public health unless they bear ‘no real or
substantial relation to’ the object of public health or are
‘beyond all question, a plain, palpable invasion of rights
secured by the fundamental law.’” Clementine Co., LLC v. Adams,
74 F.4th 77, 84 (2d Cir. 2023) (quoting Jacobson, 197 U.S. at
27).
The Board’s facemask policy satisfies the deferential
standard of review under Jacobson. For the reasons discussed in
Part III.B.1, the Board’s facemask policy has, at minimum, a
real or substantial relation to public health. Protecting public
health during the COVID-19 pandemic was a legitimate
governmental interest, and the Board’s facemask policy was
consistent with that governmental interest. In addition, for the

reasons also discussed there, the facemask requirement is not a
plain, palpable invasion of rights. The Board’s facemask policy
was both reasonable and viewpoint neutral under the traditional
First Amendment test.
Reale argues that this case is distinguishable from
Jacobson because the defendants violated state law, whereas in
Jacobson “the Commonwealth followed the law.” Pls.’ Obj., at 11.
As discussed below in Part III.B.3, these purported state law
violations do not establish a First Amendment violation.
3. Conn. Gen. Stat. § 1-225; Executive Order 12A

Reale contends that the defendants’ actions violated a
Connecticut public meeting law, Connecticut General Statutes
§ 1-225. See Pls.’ Obj., at 14 (“That evidence . . . evinces an
overtly manifested intent to not even honor any exemptions . . .
by purposefully excluding and screening those to whom the
exemptions are owed in attending public meetings as contemplated
by General Statutes §1-225.”); Pls.’ Sur-Reply, at 15 (“[The
defendants] purposefully exclude[ed] and screen[ed] those to
whom the exemptions are owed in attending public meetings as
contemplated by General Statutes §1-225.”). It may be that Reale
is merely arguing that the alleged violation of Connecticut
General Statutes § 1-225 is evidence of the defendants’ intent.
But to the extent he contends that any such violation of the
Connecticut statute violated his rights under the First

Amendment, that argument is unavailing because the “[m]ere
violation of a state statute does not infringe the federal
Constitution.” Snowden v. Hughes, 321 U.S. 1, 11 (1944). See
also Bey v. Wall, No. 18-CV-299, 2018 WL 2860115, at *1 (E.D.
Wis. June 8, 2018) (“The alleged misconduct must itself violate
the Constitution, regardless of whether it violates state laws
or regulations.”).
In addition, Reale emphasizes the fact that, in response to
interrogatories served by him, Sugarman, Paul Brenton, and
Haskell stated that they were enforcing Executive Order 12A at
the time of the September 8, 2021 Board meeting. Specifically,
with respect to Haskell, Interrogatory Number Five reads, “What

specific Executive Orders or other orders were the Defendants
enforcing relative to mask wearing as of the September, October
and November 2021 Board of Education meetings?” Pl. Reale’s
Supp. Aff. in Opp. to Summ. J. (ECF No. 194-2) (“Reale Supp.
Aff.”), at 45 (Attachment 2). The response was, “Executive Order
12A.” Id. See also PSF Ex. 2 (ECF No. 177-5), at 25 (the same
interrogatory and response with respect to Sugarman); id. Ex. 10
(ECF No. 177-13), at 23 (the same interrogatory and response
with respect to Paul Brenton). Based on those interrogatory
responses, Reale argues that his right “to publicly comment
w[as] violated,” Pls.’ Obj., at 11, and “[t]his was within an
environment that provided many multiples of the social
distancing that the then already long expired Executive Order
12A provided for.” Id. See also Pls.’ Sur-Reply, at 15.

Reale is correct that Executive Order 12A states that
“[e]ffective immediately, any person while indoors in a public
place who does not maintain a safe social distance of
approximately six feet from every other person and who is not
fully vaccinated for COVID-19 shall cover their mouth and nose
with a mask or cloth face covering.” DSF Ex. 5 (ECF No. 167-7),
at 4. Reale is also correct that at the time of the Board
meeting on September 8, 2021, Executive Order 12A had been
repealed. Executive Order 13A, which is dated August 5, 2021,
states, “Executive Order No. 12A is repealed.” See DSF Ex. 8, at

4.
But Reale’s argument does not take into account the
provisions of Executive Order 13A and the rule issued by the
Commissioner of Public Health. Like Executive Order 12A,
Executive Order 13A states that “[a] person while indoors in a
public place who does not maintain a safe social distance of
approximately six feet from every other person and who is not
fully vaccinated for COVID-19 shall cover their mouth and nose
with a mask or cloth face covering.” Id. But Executive Order 13A
then goes on to state, “[t]he Commissioner of Public Health
shall issue a rule setting forth a comprehensive list of
facilities, venues, and other locations where masks and cloth

face coverings are required, including for people who are
vaccinated, and will amend said rule as the Commissioner
determines is warranted by public health conditions.” Id. at 5.
The Commissioner of Public Health issued such a rule on August
7, 2021, and that rule stated that “[s]ubject to the exemption
provided in Executive Order No. 13A, all individuals, regardless
of vaccination status, shall wear a face-covering mask at all
times when: 1. Inside PreK-12 public or non-public (e.g.,
“private”, “independent”, “boarding”, etc.) school buildings,
excluding residential dormitories, when students are present
. . . .” Defs.’ Supp. Ex. 18, at 1. Students were present in the
auditorium for the entire September 8, 2021 Board meeting. Thus,

Reale’s contentions based on the responses by Haskell, Sugarman,
and Brenton to Interrogatory Number Five fail to create a
genuine issue of material fact.
C. Count Three: First Amendment Claim by Irizarry
Irizarry claims that Sugarman and the Board violated her
First Amendment rights when they asked her to relocate while she
was protesting coronavirus-related policies on a public sidewalk
that bordered the grounds of the Middle School. The defendants
maintain that there is no genuine issue as to the fact that the
burden they imposed was content-neutral, narrowly-tailored, and
left Irizarry with an ample alternative channel of
communication. The court agrees.9 Therefore, the defendants’

motion for summary judgment is being granted as to Count Three.
The same forum analysis that was applied in Part III.B.1 to
Reale’s First Amendment claim is applicable here. See Tyler, 74
F.4th at 61 (The four categories of fora are: “(1) the
traditional public forum; (2) the designated public forum; (3)
the limited public forum; and (4) the non-public forum.”).
“Sidewalks, of course, are among those areas of public
property that traditionally have been held open to the public
for expressive activities . . . .” Marcavage v. City of New
York, 689 F.3d 98, 104 (2d Cir. 2012) (quoting United States v.
Grace, 461 U.S. 171, 179 (1983)) (citing Frisby v. Schultz, 487
U.S. 474, 480 (1988)). “Traditional public fora, such as

sidewalks and parks, are afforded the broadest protections for
free expression.” Kass v. City of New York, 864 F.3d 200, 208
(2d Cir. 2017) (citing Zalaski v. City of Bridgeport Police
Dep’t, 613 F.3d 336, 341 (2d Cir. 2010) (per curiam); McCullen
v. Coakley, 573 U.S. 464, 488 (2014)). Thus, the location where
Irizarry was protesting is a traditional public forum, the most
protected of these fora.

9 As with Count Two, because the defendants did not violate the First
Amendment, the court need not undertake a qualified immunity analysis with
respect to defendant Sugarman in his individual capacity. See supra note 7.
“Speech finds its greatest protection in traditional public
fora,” Marcavage, 689 F.3d at 104 (quoting Make the Rd. by
Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004)),

“though even there the right is ‘not absolute,’” id.
(quoting United for Peace & Justice v. City of New York, 323
F.3d 175, 176 (2d Cir. 2003) (per curiam)). “In [traditional]
public fora, the government may apply content-neutral time,
place, and manner restrictions only if they are ‘narrowly
tailored to serve a significant government interest’ and if
‘ample alternative channels of communication’ are available.”
Kass, 864 F.3d at 208 (quoting Zalaski, 613 F.3d at 341).
There is no genuine issue as to the fact that the
restriction applied to Irrizarry was content-neutral. The only
evidence is that the sole reason Sugarman asked Irizarry and the
other two protesters to relocate themselves is that they had

located themselves in an area commonly used, and actually being
used at that time, by parents to drop off their children at
school, and as a consequence were obstructing parents from
dropping off their children at school.
“A regulation is narrowly tailored ‘so long as [it] . . .
promotes a substantial government interest that would be
achieved less effectively absent the regulation,’ and is ‘not
substantially broader than necessary to achieve the government’s
interest.’” Marcavage, 689 F.3d at 106 (internal quotation marks
omitted) (quoting Ward, 491 U.S. at 799–800). “[B]ut ‘narrowly
tailored’ does not mean the ‘least restrictive or least
intrusive means.’” Id. (quoting Ward, 491 U.S. at 798).

“[R]estrictions on the time, place, or manner of protected
speech are not invalid simply because there is some imaginable
alternative that might be less burdensome on speech.” Id.
(quoting Ward, 491 U.S. at 797).
There is no genuine issue as to the fact that Sugarman’s
request to the protesters to relocate promoted a substantial
governmental interest that could not have been achieved
otherwise. Irizarry was located where parents were dropping off
children at that time. She was in an area commonly used by
parents to drop off their children, and it would have been
unworkable to change the drop-off zone to accommodate Irizarry.
Also, Ryan’s truck was parked in a manner that impeded the flow

of traffic and obstructed the buses and cars from entering the
school grounds. Thus, Sugarman’s request that the protesters
relocate furthered the government’s interest in public safety
and in reducing congestion in the area because the protesters
were obstructing parents from dropping off their children for
school. These are substantial governmental interests. See
Madsen, 512 U.S. at 768 (“The [government] also has a strong
interest in ensuring the public safety and order, [and] in
promoting the free flow of traffic on public streets and
sidewalks . . . .”); Marcavage, 689 F.3d at 104 (“Government
‘certainly has a significant interest in keeping its public
spaces safe and free of congestion.’” (quoting Bery v. City of

New York, 97 F.3d 689, 697 (2d Cir. 1996))). Sugarman’s request
was narrowly tailored because he merely asked the protesters to
move to a different part of the sidewalk on the other side of
the exit from the Middle School grounds or, in the alternative,
to the other side of the entrance to the Middle School grounds
where there was no sidewalk, i.e. from one part of a traditional
public forum to another part of it.
“Although an alternative channel for communication must be
available, it is clear that ‘[t]he First Amendment . . . does
not guarantee [protesters] access to every or even the best
channels or locations for their expression.’” Marcavage, 689
F.3d at 107 (alterations in original) (quoting Carew–Reid v.

Metro. Transp. Auth., 903 F.2d 914, 919 (2d Cir. 1990)). “The
requirement that ‘ample alternative channels’ exist does not
imply that alternative channels must be perfect substitutes for
those channels denied to plaintiffs by the regulation at hand;
indeed, were we to interpret the requirement in this way, no
alternative channels could ever be deemed ‘ample.’” Id. (quoting
Mastrovincenzo v. City of New York, 435 F.3d 78, 101 (2d Cir.
2006)) (citing Irish Lesbian & Gay Org. v. Giuliani, 918 F.
Supp. 732, 744 (S.D.N.Y. 1996) (“Whether ample alternatives are
available does not depend on the preference of the speaker for
one method or another.”)). “All that is required is that an
alternative channel be ample--i.e., an ‘adequate’ channel for

communication.” Id. (quoting Deegan, 444 F.3d 135, 144 (2d Cir.
2006)). “In this Circuit, an alternative channel is adequate and
therefore ample if it is within ‘close proximity’ to the
intended audience.” Id. (quoting United for Peace & Justice, 323
F.3d at 177) (citing Concerned Jewish Youth v. McGuire, 621 F.2d
471, 472–74, 476–77 (2d Cir. 1980)).
Sugarman’s request also provided for ample alternative
channels of communication. One of the alternative locations he
suggested was just on the other side of where buses and other
vehicles entered the Middle School grounds from Canterbury Road.
The other location he suggested was on a sidewalk, right next to
where buses and other vehicles exited the Middle School grounds

onto Canterbury Road. Both these alternatives left Irizarry in
close proximity to her intended audience, even if neither was
her preferred location.
The court notes that there also is no genuine issue as to
whether Sugarman’s request burdened more speech than necessary
because he only asked the protesters to move from one location
adjacent to the school grounds to another adjacent location. So
even if the fact that Sugarman gave an on-the-spot directive
merits a higher level of scrutiny than that in Marcavage, 689
F.3d at 106, that standard is met here. See Case v. City of New
York, 233 F. Supp. 3d 372, 392–93 (S.D.N.Y. 2017) (citing
McTernan v. City of New York, 564 F.3d 636, 655–56 (3d Cir.

2009)). Moreover, Irizarry has never asserted that her speech
was burdened at all.
IV. CONCLUSION
For the reasons set forth above, the defendants’ Motion for
Summary Judgment (ECF No. 167) is hereby GRANTED.
The Clerk shall enter judgment in favor of the defendants
and close this case.
It is so ordered.
Dated this 31st day of March 2025, at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10836062. Public record. Not legal advice.