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Monday, November 1, 2021

Federal Judge Frederick Block Rules That NY Statewide Mask Mandate For Public Schools Will Remain


Eastern District Judge Frederic Block. Photo: Rick Kopstein/ALM

The "all students come off the same cookie sheet" thinking of the NYC Department of Education just doesn't work for me. Never has, never will. All kids, parents, people are unique and have different needs, ideas, strategies and goals. I know, because I am an identical twin, and we are not at all alike except on first view, and our voices. Our mom never could tell us apart on the phone, bless her.

What I don't yet understand and may never understand, is why the NYC DOE will not give families the chance to have remote learning. Ok, it did not work last in the past school year. That was due to the lack of sufficient training and funding for enough computers to get all students and staff on the same page - making sure that what is learned and how the information gets to the persons who need to know is in place and working successfully.  

Also, kids and teachers who are not on-site cannot be judged or micro-managed, two very important activities for administrators handling budgets. 

Remote learning and teaching strategies do not work and have never worked because the Department does not want them to, and there is no accountability. Budgets are based upon "seat time" - the number of children sitting in class.  

That's why attendance is so important. Oops, I meant "Too important". 

Betsy Combier

President and Founder, ADVOCATZ
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Brooklyn Federal Judge Upholds New York Public School Mask Mandate

A student with asthma filed a lawsuit arguing she should be exempted from the mask mandate.

Jane Wester,, November 01, 2021 at 11:27 AM

In a 54-page decision, Senior U.S. District Judge Frederic Block of the Eastern District of New York upheld New York’s statewide mask mandate for public schools, though he criticized the “current prolix array of the regulation, recommendations and requirements, guidelines and guidance” that make it challenging to apply.

Block denied a motion from the plaintiff, the parent of a 10-year-old girl with severe asthma, for a preliminary injunction based on alleged violations of her constitutional rights and decided to hold in abeyance the question of preliminary injunctive relief for her state law claims because of ongoing settlement negotiations.

“[S]ince the Court is sensitive to the concerns that parents have for their children, it believes that a full exploration of the national mask mandate dynamics at play and the reach of the [New York State Department of Health Commissioner Howard Zucker]’s actions is warranted,” Block wrote.

The plaintiff filed suit in September after a letter from a doctor saying the student should be exempted from the mask mandate was rejected by school officials, who cited public health guidance saying people with asthma can wear masks.

Block found that rational basis was the appropriate standard for review in the case, rejecting the plaintiff’s arguments that the school district’s rejection violated their fundamental rights.

Block quoted at length from national and state public health guidance, including the state’s guidance for schools, and expressed his “displeasure” with “the complexities and uncertainties” of the school guidance.

The schools’ mask mandate includes a provision for medical exemptions for people with conditions that “prevent them from wearing a mask.”

“The practical upshot of the Commissioner’s regulation, its cryptic adoption of the CDC’s recommendations and its Prevention Strategies, the Health Department’s guidance, and the Education Department’s guidelines is that the school districts and their administrators do not know what precisely they can or cannot do to implement the Mask Mandate. … As shown by this case, all this has left the School District adrift,” Block wrote.

Block also examined the paths taken by states other than New York. He found that New York is one of 16 states with statewide school mask mandates, while 26 other states have left the decision to individual school boards. The remaining eight, including Texas and Florida, had some kind of prohibition on school mask mandates as of the date of Block’s ruling, he found.

The plaintiff submitted several scientific articles as part of the complaint, but Block found that they were “ill-fitted to her arguments,” mostly dealing with environments different from schools. In contrast, he found that the scientific materials submitted by the defendants were well-tailored to the issue at hand.

Block found that the plaintiff’s situation was different in key respects from past cases involving abortion and, separately, the right to refuse medical treatment because mask mandates implicate public health as well as individual health.

“While the Mask Mandate was obviously intended as a health measure, it no more requires a ‘medical treatment’ than laws requiring shoes in public places … or helmets while riding a motorcycle,” he wrote.

Block praised the Franklin Square Union Free School District for its willingness to grapple with the various guidance and requirements involved in the case and expressed hope that the next iteration of the school mask mandate takes a “simpler, more manageable format.”

Sujata Sidhu Gibson of the Gibson Law Firm, who represents the plaintiff, did not respond to a request for comment Friday.

Adam Kleinberg, a partner at Sokoloff Stern representing the school district, said he and his colleagues were pleased that Block recognized the efforts made by the school district.

“We recognize this is a difficult situation for all involved and look forward to a resolution,” Kleinberg said.

Judge Valerie Caproni

NEW YORK CITY (WABC) -- A federal judge in Manhattan on Tuesday declined to block enforcement of New York City's vaccine mandate for public school employees, denying a request for a preliminary injunction from a group of 10 teachers, at least one of whom was denied a religious exemption from the policy.

"Plaintiffs have not shown they are entitled to this extraordinary remedy," Judge Valerie Caproni said in reading her ruling from the bench.

The judge said she found not "even a whiff" of animus toward religion in statements made by New York Mayor Bill de Blasio in enacting the policy, as argued by the plaintiffs.

The group of 10 teachers lost their bid for a temporary injunction last week, but a three-judge federal appeals court granted the Tuesday hearing.

Caproni also faulted the teachers for waiting to file for an injunction until three days after the mandate took effect.

"I'm baffled by the plaintiffs delay in seeking a preliminary injunction," the judge said, adding such "gamesmanship" does nothing to help the cause.

The teachers had accused the city of being "openly hostile" toward certain religious beliefs.

"Nobody's religious beliefs contrary to the pope's would be valid," plaintiffs' attorney Sujata Gibson said, referencing a September newspaper article: "De Blasio said Thursday that only Christian Scientists and Jehovah's Witnesses have any prayer for a religious exemption."

"I believe that shows animus," Gibson said.

"Why does that show animus?" Judge Caproni asked. "I'm having difficulty getting from that to hostility to religion."

"In nearly every appeal the Department of Education was asking that they be denied on the basis that the pope has been vaccinated," Gibson answered.

An attorney for the city, Laura Manicucci, argued there's no problem with how the mandate is enforced. The plaintiffs were denied because there was something about their claims the arbitrator who evaluates them did not buy.

"Each person's personal religious beliefs would require different kinds of evidence and different kinds of statements and it's up to an arbitrator to determine whether those beliefs apply to vaccination," Manicucci said, adding that more than 20 religions have been represented in exemptions granted so far.

"The mandate is not unconstitutional because it doesn't favor one religion over another and it doesn't give any religion an advantage," Manicucci said.

Toward the end of the hearing the judge appeared exasperated by doubts the plaintiffs expressed about the effectiveness of the vaccines, citing purported experts consulted by the plaintiffs.

"You're losing credibility," Caproni said.

A Law Department spokesperson issued a response from the city.

"Every court that has considered a challenge to the DOE's vaccine mandate has found it to be lawful," the statement read. "What we heard from Judge Caproni today was a resounding confirmation that DOE's vaccine policy is lawful and in the public interest and that there was not a shred of evidence of religious animus by the city in implementing the mandate."

Meanwhile, a federal judge ruled Tuesday that New York must continue to allow health care workers to seek exemptions from a statewide vaccine mandate on religious grounds as a lawsuit challenging the requirement proceeds.

Judge David Hurd in Utica had issued a temporary restraining order a month ago after 17 doctors, nurses and other health professionals claimed in a lawsuit that their rights would be violated with a vaccine mandate that disallowed the exemptions.
Hurd's preliminary injunction Tuesday means New York will continue to be barred from enforcing any requirement that employers deny religious exemptions.