Court rulings cloud issue of mask requirements for students

WATERTOWN — A state Supreme Court judge’s ruling Monday that the state’s mask mandate is unconstitutional appeared to do little to resolve the question of whether — or for how much longer — children need to be masked while in school.

Shortly after Judge Thomas Rademaker in Nassau County determined that the mandate was unenforceable by the state Department of Health, the state Education Department issued a directive to school districts stating that they “must continue to follow the mask rule.”

On Tuesday, state Attorney General Letitia A. James filed an appeal of Judge Rademaker’s decision, asking that his order be stayed until the Appellate Court, Second Department, can render a final decision on the appeal. That stay was granted Tuesday afternoon, meaning the mask mandate remains in place pending further ruling by the court.

St. Lawrence-Lewis Board of Cooperative Educational Services Superintendent Thomas R. Burns said all participating districts will continue with the state requirements and the guidance provided by DOH and SED. He said most schools, if not all, were also required to develop and approve School Reopening Plans the last two school years, and masking requirements were included in those plans.

“No matter how one might feel about certain requirements, we can’t just overturn state policy or guidance, and local board policy, on a whim,” Mr. Burns said.

He noted that a Supreme Court in Albany had previously ruled in favor of the mask mandate, leaving districts to await the outcome of the legal battle now in the appellate court.

“In any event, we have tried on the local level to make things consistent and stable for parents and students throughout this pandemic in the face of constantly changing guidance and requirements,” Mr. Burns said. “It would have certainly been disruptive to jump at the Nassau County court’s non-binding ruling when it was clear to us that higher courts were going to weigh in.”

Jefferson-Lewis BOCES Superintendent Stephen J. Todd was unavailable for comment Tuesday, but at least districts in Watertown and Carthage in Jefferson County informed parents that they would continue to enforce mask wearing for students.

The matter stems from a lawsuit filed Dec. 24 by the parents or guardians of 14 Nassau County children. The action challenged a “rule” enacted Dec. 10 by state Health Commissioner Dr. Mary T. Bassett that, among other things, required all state residents older than 2 years old to wear a mask in public places when social distancing could not be maintained.

The parents contended, among other things, that the rule was not a legally enacted law by the state Legislature, thus making the rule unconstitutional and unenforceable.

In his ruling, Judge Rademaker noted that the Legislature had curbed then-Gov. Andrew M. Cuomo’s — and subsequently current Gov. Kathleen C. Hochul’s — ability to issue executive orders during a state disaster emergency. The judge said that, if the state were still under a state of emergency, Gov. Hochul would have the authority to enforce a mask mandate, but the state has conceded there is presently no such emergency.

The judge said the state, instead, used DOH to promulgate its emergency “rule,” when only the Legislature held the legal authority to enact such a measure as a law.

“While the intentions of Commissioner Bassett and Governor Hochul appear to be well aimed squarely at doing what they believe is right to protect the citizens of New York State, they must take their case to the State Legislature,” the judge wrote. “Should the State Legislature, representative of and voted into office by citizens of New York, after publicly informed debate, decide to enact laws requiring face covers in schools and other public places then the Commissioner likely would be well grounded in properly promulgated and enacted rules to supplement such laws.”

Rep. Elise M. Stefanik, R-Schuylerville, said in a statement made prior to the appellate court issuing its stay that she had received calls Tuesday at her office from constituents saying that their children “are being kept away from entering schools unless they are wearing masks.”

“Kathy Hochul and her Far-Left Department of Education are lying to Superintendents causing unnecessary confusion,” Rep. Stefanik said. “There is no stay on this court ruling. Kathy Hochul’s authoritarian mandate was deemed illegal by NY Supreme Court. Masks are not mandatory for students, period. Yet Kathy Hochul is still trying to force young children to wear a mask in school, shamefully disregarding the rule of law.”

The congresswoman said that if any parent or student is told a child cannot attend school because they are not wearing a mask, they should contact her office.

Gov. Hochul said following the appellate court’s decision to stay the matter that the state will continue to pursue its case, adding “we are confident we will continue to prevail.”

“As Governor, my top priority is protecting the people of this state,” she said in a statement. “These measures are critical tools to prevent the spread of COVID-19, make schools and businesses safe, and save lives.”

New York State United Teachers President Andrew Pallotta also offered support for the continuation of wearing masks in schools.

“Public health experts have been clear that masks are an important part of the strategies designed to keep students, educators and our communities safe,” he said in a statement. “Their current guidance is that masking up is the right thing to do, particularly given the still-elevated infection rates. In the meantime, we’re looking to state health officials to set a clear off-ramp for when mask requirements in schools can be relaxed so students, families and educators have some certainty that there is light at the end of this long tunnel.”

Times staff writer Bob Beckstead contributed to this story.