ALBANY — Upstate lawmakers and parents have filed two lawsuits to end the statewide mask mandate for millions of students in New York schools.
Sen. George Borello, R-Sunset Bay, was one of several officials and organizations to file a lawsuit in state Supreme Court in Albany County to challenge the statewide universal mask mandate for students, teachers and staff in pre-kindergarten through 12th grade in both public and private schools for the 2021-22 school year.
Five families with nine children filed a separate lawsuit against the school mask mandate Monday in U.S. District Court in New York’s Northern District, arguing the regulation violates their rights to free speech and liberties protected by the 1st and 14th Amendments in the U.S. Constitution.
“Our kids, our hearts are broken by seeing the school in these masks,” said Jeff Thomas, a father of a kindergartener and second-grader who lives in Knox, in western Albany County. “All last year, we figured it would end when (former Gov. Andrew) Cuomo back in (the spring) lifted the COVID restrictions for pretty much the entire state except for schools.
“I remember sitting there helpless,” Thomas added. “I was praying, ‘Lord, what do I have to do here?’”
The state Health Department issued an emergency regulation directive Aug. 27 requiring public and private school students, faculty and staff to wear masks inside school buildings, effective immediately.
“The Department of Health does not comment on pending litigation,” DOH spokeswoman Abigail Barker said Monday.
The parents’ suit is filed against Health Department Commissioner Dr. Howard Zucker and seeks a preliminary injunction to put the school mask mandate on hold until a trial concludes.
The injunction is expected to be filed in the coming days with a decision to follow within weeks.
“If it is denied, we’re appealing it,” said Liz Joy, Republican candidate for the state’s 20th Congressional District who has helped lead parents in the school mask fight for months. “This lawsuit will be appealed going to the next level and all the way to the Supreme Court if we have to.”
Niagara County Legislator John Syracuse, St. John Lutheran Church and School, the group NY Parents to Unmask Children and several parents are the other complainants in the class action suit against the Health Department, Gov. Kathleen C. Hochul and Zucker. Petitioners assert the statewide mask mandate is an illegal breach of authority.
“People have been deprived of the right to make decisions about their own health, and that of their children: They can no longer use their judgment and apply the advice of their personal physicians respecting their health, and that of their children,” according to the suit involving Sen. Borello.
Gov. Hochul, a Democrat, announced her plan for a statewide mandate for face masks or coverings for any person age 2 and older who enters a school building for the 2021-22 year before she took office Aug. 24.
Former Gov. Cuomo and the state Health Department issued COVID-19 safety requirements and mandates for the 2020-21 academic year last summer, but the former governor had expanded authoritative and spending powers granted by the Legislature at the time.
The additional executive authority expired at the end of June.
“The expansive emergency powers granted to our former governor for a year and a half established a troubling precedent of government overreach that is proving very difficult to reverse — the mask mandate for school children is a blatant example,” Sen. Borrello said Monday. “In handing down this regulation, the Health Department exceeded its authority and is attempting to override the judgment of parents, many of whom are vehemently opposed to masking their children seven hours a day. If we don’t act, these dictates will continue and eventually, there will be no turning back.”
Hochul also supports mandating the COVID-19 vaccine for New York teachers and school staff.
The petition alleges the Health Department adopted its regulation as an emergency measure without complying with proper procedures outlined in state law, and challenges the necessity of the novel coronavirus as a public health emergency.
“Our laws were designed to protect our rights and freedoms,” Borello said. “During the pandemic, many of these laws and procedures were circumvented with the argument that the public health crisis necessitated swift and unilateral decision-making. We are beyond the point of acting in emergency mode. We need to restore our system of checks and balances, which is why unlawful mandates like this one must be challenged and overturned.”
The state’s masking regulation impacts 2.9 million New York students, according to the suit.
Thomas founded the Facebook group Unmask New York School Children Now, which has gained more than 17,400 members in the past three months. The group led to the establishment of NY Parents to Unmask Children named in the class action suit.
Thomas declined to comment on the other pending litigation.
The Facebook group was first created in June when Thomas, Joy and hundreds of other parents rallied outside the Capitol demanding lawmakers rescind the face mask requirement before the end of the 2020-21 school year.
The COVID-19 vaccine is not approved for children under 12, or the majority of school-aged students. A study by Justin Lessler with Johns Hopkins University Bloomberg School of Public Health shows face masks are one of seven layers of protection shown to best prevent students from spreading COVID to others, or potentially high-risk parents and relatives when they come home from classes.
Thousands of parents have banded together on social media to organize events to push lawmakers to rescind the face mask mandate for students, with about 1,000 rallying outside the Capitol at the end of August when the rule for the 2021-22 year was announced.
The late-August rally was at least the fourth of its kind against the school mask mandate since this past spring. Assembly member Chris Tague, R-Schoharie, and Sen. Jim Tedisco, R-Glenville, sponsor legislation to prevent state agencies from mandating mask-wearing requirements for healthy children under the age of 18 and rescind the current rules in place in schools, summer camps and similar settings.
Democrats in the majority of both houses of Legislature have not advanced either bill.