State Supreme Court judge rules indoor school mask mandate unconstitutional

A State Supreme Court judge in Nassau County ruled Monday that Gov. Kathy Hochul’s statewide mandate ordering students and staff in schools to wear masks indoors is unconstitutional and can no longer be enforced.

Hochul said Monday evening that the state will appeal Judge Thomas Rademaker's decision "immediately."

The State Department of Education on Monday night sent a statement to boards of education and district superintendents statewide that they must continue to enforce the mask rule. The department said the state health department will appeal the ruling, meaning it would be automatically suspended.

But some districts on Long Island were already telling parents Monday night that their children did not need to wear masks to school on Tuesday.

"While it is certain this decision will face legal challenges, until otherwise litigated, mask wearing will be optional for students and staff in the Massapequa Schools beginning Tuesday, January 25, 2022," the Massapequa school district posted on its website.

The Lindenhurst school district issued a similar statement.

"Until otherwise directed, the wearing of masks will be optional for all students and staff members," the district posted on its website Monday night. "We are also aware that this decision will undoubtedly result in an appeal from the state, which could result in the restoration of the mask mandate until the court issues further ruling."

Rademaker's ruling, which also applies to the section of Hochul's mandate covering other indoor public areas, came from a lawsuit brought by a group of parents.

The state law is "violative" of New York’s Constitution, Rademaker wrote, and therefore "null, void and unenforceable as a matter of law." He wrote that the way it was implemented through a state agency, the Department of Health, was illegal.

Bruce Barket, a Garden City-based lawyer, said the judge’s ruling voids state-imposed masking rules — in schools, public places and elsewhere. But once the state appeals, the ruling will automatically be suspended, meaning the masking rules will remain in place, until an appellate court issues its own ruling, Barket said.

Hochul, in a statement, said: "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. We strongly disagree with this ruling, and we are pursuing every option to reverse this immediately."

Rademaker's ruling was made a few weeks after Nassau County’s new executive, Bruce Blakeman, issued an order saying local school boards do not have to follow the mask mandate.

Hochul has said local governments do not have the legal authority to override state laws regarding education — a position that was backed by groups, including the Nassau-Suffolk School Boards Association.

Hochul has threatened to withhold state education department funds from districts that do not follow the mask mandate.

Rademaker wrote that the mandate was issued out of "good intentions" and noted that every New Yorker "wants to put this pandemic behind them." He added that he is not opining about the effectiveness of masks in controlling the COVID-19 pandemic.

But he wrote that the mandate was "promulgated and enacted unlawfully" by the state Department of Health. The lawsuit names Hochul and acting State Commissioner of Health Dr. Mary Bassett.

Jay Jacobs, head of the state Democratic Party, said, "I am sure [it] will be overturned on appeal. I believe the governor does have the authority to take actions like the mask mandate, and this is a particularly difficult time. It’s a time of crisis."

Though the crisis seems to be easing, "In the midst of it we needed leadership, and the governor provided that and did so lawfully," he said.

Hochul announced the school mask mandate on Aug. 24, along with mandatory COVID-19 vaccines for staff, or an option of weekly testing.

The moves were necessary to help bring under control the surging delta variant, she said at the time. "None of us want a rerun of last year’s horrors with COVID-19," she said.

"I’m immediately directing the Department of Health to institute universal masking for anyone entering our schools," Hochul said.

On Aug. 27, an emergency regulation filed by the health department stated that face masks are to be mandated inside all public and private school buildings.

The regulation covers pre-kindergarten through 12th grade, health department spokeswoman Jill Montag said at the time. An email about the regulation was sent to 5,000 different email addresses, including schools and districts, she said.

Blakeman called Monday’s ruling "a victory for the people of the state of New York, especially our school children."

"And it is exactly what I’ve said all along — that the mandate was unconstitutional, and that if it was tested in court that it would be defeated," he said.

The mask issue has been divisive across Long Island. Last week, a school psychologist and the local teachers union said most students at Connetquot High School are wearing their masks below the nose or chin — or not at all.

School officials denied that, and Hochul said the state is looking into the situation.

Doctor: Omicron has peaked on Island

Meanwhile, the omicron variant surge has peaked on Long Island, but it will be several weeks before the situation is fully under control, a leading medical expert said Monday.

"We've peaked and we're on our way down," said Dr. David Battinelli, physician-in-chief at Northwell Health. "But all that really means is that we are halfway through. … We have treated half the people and we're still going to have to treat another half."

Battinelli told Newsday he expects the current COVID-19 situation to last another few weeks and then hopefully return to a much lower rate of new positive cases.

"If you think it's over right now, no, it's not over. You're not down. You didn't climb down off the mountain yet," he said. "So we peaked and the good news is we're not going higher, so it's not getting worse, at least in our area."

Hochul echoed Battinelli’s assessment, noting that hospitalizations of people with COVID-19 have declined by nearly 2,000 patients statewide over the last week. The figure fell to 9,798 on Sunday, a drop of 49 people from Saturday.

"Our hard work to bring down the numbers during the winter surge is paying off, but we are not through this yet," Hochul said in a statement.

In New Hyde Park-based Northwell’s system, the number of hospitalizations also dropped substantially, falling to 1,298 compared with 1,700 a week and a half ago, it said Monday.

The number of new daily cases of COVID-19 continued a downward trend, hitting 12,259 statewide on Sunday compared with a record-breaking 90,132 on Jan. 7.

Nassau had 806 new cases, while Suffolk had 788.

The seven-day average for positivity continued to fall on Long Island, hitting 11.67% compared to a high of nearly 27% on Jan. 6.

Battinelli said despite those encouraging trends, the battle against omicron could still see some surprises, though he hopes not.

"Hopefully we don’t wind up with additional variants or other diseases as air travel, international air travel, and warmer weather gets going," he said. "Hopefully we will have more people accepting a booster shot, which means you will have more protection against serious disease."

Across the state, 133 people died on Sunday of causes linked to the virus. The fatalities included 13 in Nassau and nine in Suffolk.

With Matthew Chayes and Yancey Roy

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