Update: Appeals court judge sides with state on mask mandate in schools

Update (5:20 p.m.): An appeals court judge sided with New York State Tuesday afternoon, allowing the universal mask mandate for schools to continue for now.

Gov. Kathy Hochul applauded the decision and thanked the Apellate Division court “for siding with common sense and granting an interim stay to keep the state’s important masking regulations in place.”

She said they are confident the state will continue to prevail as the case continues to play out in court. The decision means districts such as Shoreham-Wading River that declared Tuesday masks would be optional must now revert back on Wednesday.

The New York Times reported that Justice Robert J. Miller, the state appeals court judge, has scheduled another hearing for Friday morning.

Original Story: The decision of whether to enforce universal masking in schools to prevent the spread of COVID-19 may now be in the hands of individual districts following a court decision Monday that determined the state mandate was enacted unlawfully and in violation of the New York State Constitution.

However, the State Department of Education informed districts Monday night that “schools must continue to follow the mask rule.”

Districts across the county have taken a varied approach Tuesday morning to the court decision, with some maintaining that masks policies will remain in effect, while others have said masks are now optional.

The court decision from Judge Thomas Rademaker of the Nassau County Supreme Court said the mask mandate for schools would need to be enacted by the State Legislature passing a law and cannot be enacted by the New York State Department of Health. The judge wrote that while Gov. Kathy Hochul and state health commissioner Dr. Mary Bassett “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 decision came in a lawsuit filed by a group of parents in Nassau County. New York State has already filed an appeal, so the ultimate outcome remains in limbo. The appeal was filed by State Attorney General Letitia James.

“My responsibility as governor is to protect New Yorkers throughout this public health crisis, and these measures help prevent the spread of COVID-19 and save lives,” Ms. Hochul said in a statement Monday night. “We strongly disagree with this ruling, and we are pursuing every option to reverse this immediately.”

Judge Rademaker wrote that enacting such a mandate as it was done would allow laws to be changed “at the whim of every new commissioner.”

“This is the very antithesis of constitutionally established representative government,” he wrote.

The judge added that the decision from the court does not intend to opine on the “efficacy, need or requirement of masks as a means or tool in dealing with the COVID-19 virus.”

Shawn Petretti, the superintendent of the Mattituck-Cutchogue School District, said in a message Tuesday morning to parents that they are asking everyone to continue to follow the rules as currently set by the Continuity of Learning Plan.

“Keeping our current policy in place for today will allow us time to evaluate all information and ensure that we are not going back and forth on any decisions,” he wrote. He said additional information would likely be available by the end of the day.

Parents in the Shoreham-Wading River School District received a robocall Tuesday morning saying that masks would be optional. To date, the district has seen 364 students test positive for COVID-19 along with 52 teachers and 53 staff members, according to the state database. There have been 60 students to test positive in the last seven days.

A request for comment from Superintendent Gerard Poole Tuesday morning was not immediately returned.

Ms. Hochul implemented the mask mandate for schools shortly before the school year began and after taking over from former Gov. Andrew Cuomo, who appeared inclined to allow districts to decide for themselves about masks before resigning from his post amid a string of controversies. Newsday reported Tuesday that at least 21 Long Island districts had informed students and families that masks were optional. The governor was in Syracuse Tuesday and is expected to provide a COVID-19 update at 3 p.m.

The Riverhead Board of Education voted to enact a mask policy in August, just prior to the state mandate. There was no shift in policy Tuesday morning as a result of the court decision.

“We are continuing with masks indoors and optional outdoors,” the superintendent, Dr. Augustine Tornatore, said. “This was board approved prior to the beginning of the school year and prior to the governor’s mandate through our opening plan.”

Riverhead’s BOE has a regular meeting Tuesday night.

Oysterponds Superintendent Richard Malone wrote in a letter to parents Tuesday that when a governmental agency appeals a ruling, an automatic stay is granted. The mask mandate for the school would remain, he said, “until there is a final ruling on the appeal.”

There was no immediate shift in policy at the Southold and Greenport school districts.

The Centers for Disease Control and Prevention’s most recent guidance for schools still recommends universal indoor masking by all students, staff, teachers and visitors to K-12 schools, regardless of vaccination status. In addition to universal masking, the CDC recommends schools maintain at least three feet of physical distance between students in classrooms. Vaccinations are now available for all children ages 5 and older and the CDC says that “vaccination is the leading public health prevention strategy to end the COVID-19 pandemic.”

The omicron variant fueled record numbers of cases of COVID-19 during late December into January, and while it appears Suffolk County and New York are past the peak, cases still remain at a much higher level than when school began in September. Current positivity rate in Suffolk is 12.3% on a seven-day average, compared to 4.7% on Sept. 2.

The most recent data from the state DOH shows 35.9% of children ages 5-11 have completed the vaccine series while the number jumps to 66.7% for those ages 12-17. Suffolk County lags behind those figures with just 17.3% of children 5-11 and 58.8% of kids 12-17.

The DOH provided updated guidance to schools earlier this month on quarantine and isolation. Individuals who test positive for COVID-19 are required to isolate for a minimum of five days, regardless of vaccination status. Fully vaccinated students who are exposed to COVID-19 can attend the regular school day. Unvaccinated students who are exposed cannot attend regular school days for days 0-5, although they can be eligible to return through the test-to-stay program.