Families press effort to end CT mask requirement in schools

  • Parents accompany their children on Sept. 29 outside PS 179 elementary school in the Brooklyn borough of New York. Children in the state’s public schools are required to wear masks while inside school buildings. AP

The Hartford Courant
Published: 11/28/2020 11:46:23 AM
Modified: 11/28/2020 11:46:12 AM

HARTFORD, Conn. — Despite an early setback, some Connecticut families, and their lawyers, are pushing ahead with their suit seeking to end the requirement that students must wear masks to attend school during the COVID-19 pandemic.

In a filing this week, lawyers for several parents and the CT Freedom Alliance fought back against the state’s request to have the case thrown out, arguing that the requirements were put in place outside the regulatory process and that the governor’s emergency powers do not give him the authority to approve such regulations.

The latest filing comes several weeks after Judge Thomas G. Moukawsher denied the families’ request to immediately lift the mask requirement in the face of a perceived imminent danger to the children. In a pointed ruling, Moukawsher said he found little evidence for such pressing danger.

“Nothing the Connecticut government has done about school mask wearing has been shown as irrational and dangerous rather than, like all human action, in some ways imperfect,” Moukawsher wrote. “Indeed, it aligns with ordinary expectations.” The plaintiffs’ lawyers, Republican state representatives Craig Fishbien and Doug Dubitsky, appear to move away from the argument that masks present a danger in Monday’s filing, focusing more intently on the governor’s powers through executive orders. They argue that Gov. Ned Lamont’s emergency powers during the public health emergency allow him to suspend or modify any statues, but the school masks order was tantamount to creating a whole new statute. Under the state’s view of Lamont’s emergency powers, the lawyers argue, they can create any regulations they choose without following the legally-prescribed process.

“There is nothing to stop them from mandating tomorrow that all children wear pressurized space suits and breath bottled oxygen as a condition of receiving a public education in Connecticut,” the lawyers wrote. The lawyers continue to challenge the regulations that they say were enacted outside the legally-required process that weighs public input.

“The defendants had ample time to act within the confines of the statutes, but they chose not to do so to avoid the backlash public scrutiny and input would bring,” the lawyers wrote.

So the lawyers contend that the families cannot be expected to follow that same process to appeal the mask-wearing requirement. “By failing to properly enact regulations pursuant to any set of established statutory procedures, the defendants cannot now demand that the plaintiffs challenge to those regulation must strictly follow the very procedures the defendants themselves abandoned,” the lawyers wrote.

The lawsuit, first filed in August, continues to shine a light on a division over whether masks are necessary during this ongoing pandemic. A growing body of scientific evidence shows masks limit the spread of the coronavirus.

It is unclear when Moukawsher will consider whether to dismiss the case, but the latest filing comes at a time when COVID-19 is stressing school districts across the state, forcing a handful of extended closures or keeping scores of teachers and students home to quarantine amid potential exposure.

The requirement that students wear masks was a key measure to keep schools open, a goal that remains a top priority for Lamont and his education department despite a resurgence of the virus.

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