Massapequa school board trustees have approved filing a lawsuit against New York State challenging the school mask mandate that state authorities imposed to reduce the spread of the coronavirus.
“Neither the health commissioner nor the new governor, Kathy Hochul, have the power to establish a statewide mask mandate policy as an emergency health measure,” school board president Kerry Wachter said at a Thursday night Board of Education meeting, reading from a prepared statement.
The Locust Valley school district is also expected to join the suit, which will be filed Friday in Albany County Court, she said. The Locust Valley superintendent and board trustees did not respond to interview requests.
Wachter’s statement framed the suit as a constitutional and statutory matter but also addressed what she described as the practical problems with the emergency health regulations filed by the state health department Aug. 27.
“Masking all students from unvaccinated 3-year-old pre-kindergarteners to vaccinated 18-year-old seniors is not universally accepted by scientists and educators as beneficial in all circumstances when weighed against the negative effect it has upon education, especially of young children,” she said.
Schools can reduce the spread of the virus in their buildings by social distancing, good ventilation and “appropriate masking,” she said, but “no scientific study has isolated masking in schools and established its efficacy alone.”
The U.S. Centers for Disease Control and Prevention recommends school mask mandates and recommends that people in areas of high transmission — like Long Island — wear masks indoors in public. Masks provide some protection for those who wear them, but their primary benefit is to protect others by reducing the emission of virus-laden droplets when people breathe, according to the CDC.
The agency said last week that COVID-19 hospitalizations among children and adolescents rose by nearly fivefold between late June and mid-August.
New York State data showed Long Island had 449 COVID-19 hospitalizations on Friday, well off peaks in April 2020 and January, but up from a lull in June and July, when daily totals fell into double digits.
In her statement Thursday, Wachter argued that the Hochul did not have the authority to impose a state mask mandate.
“The Legislature gave such authority to Gov. (Andrew) Cuomo in March 2020, but withdrew it in March 2021,” she said. “This absence of legal authority to issue a statewide school mask mandate was candidly and repeatedly acknowledged by Governor Cuomo and the health commissioner during Governor Cuomo’s tenure. Nothing has changed except the occupant of the Governor’s mansion.”
Wachter also argued that the district was following international consensus on the issue, citing a number of European nations that she said chose to “strike a delicate balance protecting children and educating children by rejecting mask mandates because of the limited additional health safety they promote versus the obvious educational damage they cause.”
Wachter, through a representative, declined an interview request.
Haley Viccaro, a spokeswoman for Hochul, said the governor’s office would not comment on pending litigation but referred to remarks Hochul made last week in Buffalo about new measures, including the mask mandate, intended to combat the delta variant of the virus.
“We’ll take bold dramatic action to protect individuals in the state, but particularly our children as we start schools,” Hochul said. “Kids are resilient. They can handle a mask on their face.”
Hochul said that she did not favor an open-ended mandate.
“We’ll do it now and we’ll assess because there’ll be parts of our state where the numbers drop, you get the vaccination nods, and we get the vaccine out to children,” she said.
The Massapequa shool district is one of the largest in Nassau County, and had 6,713 students in the 2019-2020 school year.
The board’s decision drew applause from meeting attendees Thursday night, but criticism Friday morning from one parent, Bobby Bonett, who works in digital strategy and advertising and has a daughter in kindergarten.
“My tax dollars should go to her education and her safety, not toward a political lawsuit,” he said.
Massapequa has filed lawsuits over outside mandates before. Last year the district sued Section VIII, the governing body for Nassau County high school sports, in a bid to overturn the decision not to play high school sports last fall, but a Nassau County Supreme Court judge dismissed the suit.
The district may have other allies besides Locust Valley. In Smithtown, school board trustee John Savoretti questioned the science behind mask wearing at an Aug. 31 board meeting and asked district leaders to consider joining a suit against the state.
“We can win this with strength in numbers,” said Savoretti, who did not respond to an interview request earlier this week. “We can stand up as a school district, as a community, and tell them, ‘you know what, we’re not dealing with this.’”
Savoretti said the total cost of a legal action would be $50,000 to $100,000 or less, divided between plaintiffs.
Smithtown trustees closed their meeting without voting on Savoretti’s proposal, but a lawyer for the district said at the meeting he would seek more information.
