Bloomberg Law
Jan. 25, 2022, 10:46 PM

New York Fights Back After Mask Mandate Shot Down by Judge (3)

Robert Burnson
Robert Burnson
Bloomberg News

New York is appealing a ruling by a Long Island judge that its mask mandate for schools and other public places is an illegal end run around the state constitution.

The mask-wearing rule was issued Dec. 10 by the state’s health commissioner at the urging of Governor Kathy Hochul, around the start of the omicron surge of the coronavirus pandemic. A group of parents sued to block the mandate, saying their school-age children shouldn’t be forced to wear masks.

On Monday, Judge Thomas Rademaker ruled that Hochul and Health Commissioner Mary Bassett overstepped their authority, saying the governor should instead seek the passage of a law.

“While the intentions of Commissioner Bassett and Governor Hochul appear to be well aimed squarely at doing what they believe is right to protect the citizens of New York, they must take their case to the state legislature,” Rademaker wrote.

New York filed a notice of appeal on Monday. On Tuesday New York State Supreme Court Justice Robert J. Miller temporarily halted Rademaker’s order until a Friday hearing in which the two sides will argue over a longer stay while the court considers the appeal.

‘Protect New Yorkers’

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

The Centers for Disease Control and Prevention recommends universal indoor masking for all children ages 2 and up when they are in school. Additionally, the agency’s guidelines on masking back their use by staff and visitors, regardless of vaccination status. Since the spread of the omicron variant in the U.S., the agency has also begun to recommend that well-fitting, medical-grade masks are best at curbing the spread of the virus.

The parents who sued argued they should be permitted to make health care decisions for their children, saying the kids sometimes become lightheaded while wearing masks. The infection rate among children is low, making the mask rule unnecessary, they said.

Read More: New York Schools Grapple With Mask Mandates After Legal Ruling

Health regulations in the U.S. are generally handled at the state and local level, resulting in a patchwork of widely differing rules throughout the country.

In New York, Hochul and former governor Andrew Cuomo, both Democrats, have favored mask and vaccine mandates, prompting legal challenges from New Yorkers who want to decide the issues for themselves. Some states led by Republicans, such as Florida and Virginia, have blocked localities from instituting mask requirements, spurring litigation from mask supporters. In Virginia, a group of school districts claims the state’s new governor, Glenn Youngkin, exceeded his authority in ordering that masks are optional at schools.

State Politics

Rademaker’s decision, which is based on New York law, has no effect outside the state but could encourage critics of the rules to file challenges elsewhere. Courts across the country have been similarly divided over rules for vaccines.

The New York dispute reflects the state’s politics. Early in the pandemic, in March 2020, state lawmakers granted Cuomo extraordinary powers to enact sweeping new statutes to deal with the Covid-19 emergency without the approval of the state legislature. The legislature voted in March 2021 to rescind those powers.

Read More: N.Y. Feels Covid’s Grip Tighten Anew as Hospital Cases Surge 70%

By Tuesday, several New York school districts had said they’d dropped masking or made it optional, including schools in Bellmore-Merrick, Glen Cove, Massapequa and Farmingdale.

Others, including Lynbrook, Jericho and Hastings-on-Hudson, said they’re going to maintain the mask mandate, in some cases saying the state’s Education Department told them Rademaker’s ruling likely won’t go into effect until the appeals process is complete.

That question went to an appeals court judge Tuesday, when a lawyer for the state asked for a temporarily hold on Rademaker’s ruling and said that failing to provide one would “radically disrupt the status-quo masking requirements.” Judge Robert Miller said he would rule on the request by Wednesday.

New York City, the state’s largest school district, has a mandatory masking policy that has been in place since before the state adopted its requirement. In a television interview Tuesday, Mayor Eric Adams advised kids and workers to keep wearing masks.

Meanwhile local districts can institute their own mandates -- which are subject to further legal challenges.

The case is Demetriou v. New York State Department of Health, 616124/2021, New York State Supreme Court, Nassau County (Mineola).

(Adds stay of order in fifth paragraph.)

--With assistance from Laura Nahmias, Nic Querolo, Erik Larson and Chris Dolmetsch.

To contact the reporters on this story:
Bob Van Voris in federal court in Manhattan at;
Robert Burnson in San Francisco at

To contact the editors responsible for this story:
Katia Porzecanski at

Peter Jeffrey

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