UPDATED January 27, 2022
We have learned from the New York State Attorney General’s office that the decision regarding whether or not the current stay will remain in place pending the decision on the appeal of the Nassau County Supreme Court decision may not be made for several weeks. The Attorney General’s office has indicated that it will remain in effect during this interim period keeping the New York State Department of Health’s masking requirement for school districts in place.
This Legal Alert pertains to an issue, which is fluid and currently being considered in court. This information will be updated as court decisions are made and/or guidance from state agencies is provided.
On Monday, January 24, 2022, a Nassau County trial court judge decided that the New York State Department of Health (“NYSDOH”) rule mandating masks be worn in all public buildings, including schools, was unconstitutional and invalid. That mandate was in place and was to continue through February 21, 2022.
Almost immediately after being issued, the state appealed the decision. The state requested a stay of the decision so the mandate would remain in effect while the lower court’s decision was being reviewed by the appellate court. The stay was granted, until at least Friday, January 28, 2022, when further argument in the case will be heard.
The New York State Attorney General, New York State Department of Health (NYDOH), and New York State Education Department (NYSED) have indicated the decision applies statewide, not just in Nassau County. The decision has raised many questions about the implications for school districts moving forward. While the issues in this case may not be finally decided for some weeks given the possibility of additional appeals, it is prudent for schools to consider options should the lower court’s decision ultimately be upheld.
The following Q & A offers perspective on the considerations for school districts and BOCES as they address these issues.
Is it possible the NYSDOH could put another mask mandate in place for the future?
Yes, it is possible, but will depend on how the appellate court rules. If the appellate court agrees just with the portion of the decision that finds the NYSDOH did not comply with the State Administrative Procedure Act, because a rationale was not provided, this error could potentially be fixed moving forward. If, however, the appellate court agrees the rule transcends providing “definition” and “guidance” and that the line between administrative rule making and policy making (the role of the legislature) has been crossed, then the NYSDOH would not have authority to mandate masks, unless it could point to other specific legal authority allowing it to do so. Take-away? It is nuanced and right now a little uncertain.
Could NYSED mandate masks if the NYSDOH regulation is invalidated?
Maybe. NYSED is a separate state agency but subject to the same limitations in terms of being limited to providing definitions, guidance and implementing regulations to carry out statutes. In short, NYSED, like NYSDOH, would need to rely on statutory authority to implement a mask mandate. As NYSED has acquiesced to the NYSDOH and the Governor on these matters to date, it is unclear where their authority lies.
In the absence of a state mandate, can a local school board still mandate mask wearing despite the court’s ruling?
Likely, yes. Various Education Law provisions provide school districts the authority to take measures to protect the safety and health of students. For example, Education Law 1709(13) provides that boards of education “have in all respects the superintendence, management and control of the educational affairs of the district, and, therefore, shall have all the powers reasonably necessary to exercise powers granted expressly or by implication and to discharge duties imposed expressly or by implication by this chapter or other statutes.”
Education Law 2801(2) requires that districts adopt “a code of conduct for the maintenance of order on school property … which shall govern the conduct of students, teachers and other school personnel as well as visitors and shall provide for the enforcement thereof” and include “standards and procedures to assure security and safety of students and school personnel.”
Thus, reasonable school district health protocols determined in accordance with guidance from the CDC, the NYSDOH, NYSED, and local health departments should be within a school district’s discretion.
We caution, however, that given the current polarized environment regarding masks, any mandate could be subject to legal challenge. Therefore, we believe that if a board of education wishes to continue a mask mandate in the absence of a directive from the state, it should establish the criteria on which it will base its decision, seek guidance from the district’s medical director, gather and consider community input (including staff), and consider time frames for periodic review to ensure that if conditions become such that a mask mandate is no longer warranted, the decision is modified.