New York State has authority to issue school mask mandates, judge rules

An Albany County Supreme Court judge has denied a lawsuit by the Massapequa and Locust Valley school districts to overturn New York State's school mask mandate.

The districts had argued that authority to issue a mandate belonged to the State Legislature. The lawsuit, filed against Gov. Kathy Hochul and state Health Commissioner Howard Zucker, accuses both of usurping power on Aug. 27 when they signed off on an order requiring everyone in schools to wear masks, regardless of vaccination status.

In his Tuesday decision, Judge Henry Zwack wrote: "Lawsuits challenging the State’s public health protection measures during this worldwide pandemic have all reached the same result, namely that mandatory health requirements do not violate substantive rights."

Massapequa school board members were "disappointed with this decision and are currently evaluating it," said board president Kerry Wachter in a statement. "We will also be consulting with the district’s legal counsel to consider any possible next steps."

Locust Valley officials could not immediately be reached for comment. Representatives for Hochul and state Attorney General Letitia James did not immediately respond to requests for comment. Another plaintiff, Massapequa board trustee Jeanine Caramore, also could not immediately be reached Wednesday.

The lawsuit cost the districts at least $100,000 in combined legal bills, according to copies obtained by Newsday after a Freedom of Information Law request.

Hamburger, Maxson, Yaffe and Martingale, the Melville law firm that represented the school districts, billed Massapequa $64,486.41 for work in August and September. The firm also billed Locust Valley at least $47,856.54 as of Nov. 8. The bills reference certain shared costs between the districts.

The Farmingdale-based law firm Guercio and Guercio billed Massapequa $6,747.24 for "student mask litigation investigation" over the summer, records show.

The districts pursued mask-optional policies in the summer but backed off after the state warned that noncompliance could lead to school board members being ousted and financial aid withheld from their districts The suit, filed in September, came after impassioned opposition from parents and conservative groups at school board meetings across Long Island this past summer.

The Centers for Disease Control and Prevention, in guidance updated Nov. 5 on its website, recommends universal indoor masking by students, staff and visitors to schools, regardless of vaccination status, "due to the circulating and highly contagious Delta variant."

In his nine-page decision, Zwack found that Zucker had broad powers to fight epidemics like COVID-19 under the state’s public health law. Two other respondents, the department Zucker led and the state Public Health Planning Commission, were similarly empowered by public health law, the judge found.

Also, Zwack noted, the mask mandate Hochul and Zucker pioneered was not a radically new policy.

"They merely filled in details of a broad policy of promoting public health in times of known health risks," the judge wrote.

The districts submitted "voluminous" exhibits in support of their arguments, the judge wrote, including material from the World Health Organization, Children’s Hospital Colorado and scientific journals. But he declined to substitute his judgment for state health officials whom he said based their decisions on recommendations from the CDC and the American Academy of Pediatrics.

Zwack's decision was "straightforward and legally sound …," said James Sample, a constitutional law professor at Hofstra Law School, in an email. "The court’s judgment properly recognizes that Gov. Hochul, in facing the summer surge of the Delta variant, was not, and should not have been, forever handcuffed by the legislature’s March 2021 action applicable to a very different pre-Delta stage of the crisis."

Zucker, who served more than seven years as health commissioner, submitted his resignation in September but said he would stay on until a replacement was found. He is still listed as commissioner on the state Department of Health's website.