Lawyers continue fighting CT school mask mandate

Despite a Superior Court ruling that a mask requirement posed little threat to Connecticut students, lawyers behind an ongoing challenge of the state mandate argued against dismissal of their case in a motion filed this week.

The lawsuit, filed by two Republican state representatives — Doug Dubitsky and Craig Fishbein — on behalf of a group of Connecticut parents, seeks to remove a requirement that students wear masks in schools to help contain the spread of the COVID-19 virus.

Monday’s motion comes on the heels of a major defeat for the plaintiffs in the case. Earlier this month, Judge Thomas G. Moukawsher denied their request for the court to step in and remedy what they argued was an imminent physical and emotional threat to school children.

Moukawsher found no such threat and in ruling against an emergency injunction, the judge put to rest the most pressing element of the case.

However, Dubitsky and Fishbein argue that their lawsuit should not be dismissed because the state Education Department lacked the authority to enact the mandate in the first place. The agency, empowered by a series of pandemic-related executive orders from Gov. Ned Lamont, skirted traditional regulatory oversight when it required masks in schools, they said.

“The defendants can, under their view of their emergency powers, simply enact any regulation they choose,” the lawyers wrote.

“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,” they wrote.

The Education Department, represented by the state Attorney General’s Office, has been arguing since September that the case should be dismissed. Initial complaints about the agency’s emergency authority were addressed by executive orders from Lamont. Meanwhile, individual complaints about how the mask mandate has been enforced are better directed at local school districts, the state has claimed.

Moukawsher has not yet ruled on the new motion from Dubitsky and Fishbein, but in prior rulings he has stated the mandate contains adequate exemptions for students who have medical difficulties with the requirement.

The judge has also suggested that Supreme Court decisions have granted the Executive and Legislative Branches broad powers in responding to emergencies. The current pandemic crisis has already resulted in the deaths of nearly as many Americans as World War II, he wrote.

“Based on the evidence in this case, the Connecticut Department of Education has not exceeded this especially broad power. 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. Indeed, it aligns with ordinary expectations,” the judge wrote in a previous ruling.

The plaintiffs argue this power goes too far and at some point the public health guidelines enacted by the Executive Branch during the pandemic must be subject to the sort of public scrutiny required by the traditional legislative process.

“If left unchecked, there would be no effective legal barriers or constitutional constraints to the Defendants’ ability to change the [state education] mandates at will for every public school child in Connecticut without notice, consultation, public input, or judicial review,” they wrote.

The litigation continues to unfold as many school districts around the state have struggled to maintain in-person learning. Potential exposures to the virus have forced many teachers to quarantine, leading to staffing shortages which have required some schools to revert back to remote learning.

As he argued to preserve the mask requirement last month, Assistant Attorney General Darren Cunningham suggested that Connecticut schools would not be able to safely operate without the mandate.

“This drastic, immense request of the court would no doubt result in the closure of our public schools,” he said.

Although the Centers for Disease Control recommends masks be worn in schools, Connecticut is not the only place where the idea has met some resistance. Similar requirements have prompted lawsuits in other states and, according to ProPublica, 11 states do not require students to wear masks and have left the call up to local districts.