A justice of the Massachusetts Superior Court recently denied a request for a preliminary injunction filed by parents and citizen rights groups in response to mask mandates at schools issued and implemented by the Department of Elementary and Secondary Education (DESE), two municipalities, and 18 local school districts. The order in Family Freedom Endeavor, Inc. et al. v. Riley, No. 2179CV00494 (Hampden Co.) is the latest in a national trend that affirms the government’s ability to issue reasonable public health and safety measures to curb the spread of COVID-19.
The case is a consolidation of several Massachusetts-based lawsuits filed against the governmental defendants. The plaintiffs claimed that the government does not have the legal authority to issue or implement face covering mandates in schools and, further, that such mandates violate the constitutional rights of parents to make decisions regarding their children’s health.
In denying the plaintiffs’ request, Justice David M. Hodge emphasized that there remains a public health emergency in Massachusetts; that the Centers for Disease Control (CDC) has reported that more than 720,000 people in the United States have died of COVID-19 (the number today is 800,000); and that the trajectory of the virus has been unpredictable with various variants and surges. Further, the CDC, the Massachusetts Department of Public Health (DPH), and the American Academy of Pediatrics (AAP) all recommend mask wearing to reduce the risk of COVID-19 transmission. His ruling made three important findings:
The government can order students and staff to wear masks in public schools. The justice found that the statewide DESE mandate, which requires the use of masks for all public-school children (ages five and up), and faculty and staff (with exceptions), was a proper exercise of its regulatory power. The justice scuttled the plaintiffs’ arguments that there are no exigent circumstances concerning COVID-19 in Massachusetts—he called their “blanket denial” contradictory to the guidance issued by CDC, DPH, and the AAP, and further reminded the plaintiffs that the contagious delta variant is causing a “fluid and perilous situation.” Regarding the 18 school districts that have implemented the mandate and the two municipalities that have separately issued mask mandates, the justice found that there is no conflict between the municipal actions and DPH’s orders, regulations, and mandates and, further, that there is no express legislative intent to preempt local school districts and municipalities from imposing their own health-related rules.
The plaintiffs failed to prove that wearing masks in school was harmful to students’ health. The plaintiffs submitted affidavits from two physicians and an industrial hygienist, which stated, in part, that wearing masks in school causes significant and irreparable physical and psychological harm and that there is no evidence that cloth masks are helpful in protecting against disease transmission. The justice found that the affidavits were conclusory, devoid of facts to support most of their statements, and heavily contradicted guidance from public health officials.
Parents do not have a constitutional right to expose the community or a child to communicable diseases. The plaintiffs argued that the government’s actions were infringing on their constitutional rights as parents to make fundamental decisions regarding their children’s care, upbringing, and education. The justice rejected these arguments, recognizing that there is a well-established power to impose measures to protect the general welfare and best interests of children. The mask mandates easily withstand the rational basis standard of review because they serve the legitimate governmental interest in slowing the spread of the virus, and they were created, tailored, and implemented in consultation with medical experts and widely accepted public health recommendations.
The plaintiffs filed a Notice of Interlocutory Appeal on December 8 and on December 14 the Court endorsed plaintiffs’ motion for a stay pending appeal, so stay tuned.
The DESE mask mandate is in effect until at least January 15, 2022. It remains to be seen what effect the new omicron variant will have on the continuation of this statewide mandate or other local mandates.