Upstate lawmakers and parents filed suit against the state Department of Health on Friday, seeking to reverse the mask mandate in public and private schools, new court papers show.
New York State Sen. George Borrello and Niagara County Legislator John Syracuse — along with a group of parents and one school — brought the Albany County Supreme Court lawsuit against Department of Health Commissioner Howard Zucker and Gov. Kathy Hochul opposing the rule that went into effect Aug. 27 requiring students, teachers and staff statewide to mask-up or face potential fines.
The suit claims that the DOH is over-stepping its authority by issuing the sweeping mandate that will affect nearly 3 million students, tens of thousands of teachers and countless others.
Only state legislators have the power to decide whether a mask mandate should become a law while emergency powers granted to the governor should draw to a close, the court papers argue.
“The power to issue a law impacting millions of children is reserved, constitutionally, only to the legislature and not to an administrative agency of the executive branch,” the suit says.
The rule is “arbitrary and capricious” especially given that kids “are not at risk of dying from the coronavirus,” the suit claims. And the benefits of wearing masks don’t justify the “potential harm on the physical and mental health of children caused by the continued use of masks” — such as breathing and skin problems, the court documents allege.
The governor and the DOH “have invoked draconian measures to protect children from COVID-19, which by all accounts, does not harm children,” the filing claims.
The parents are asking a judge to vacate the mandate.
“The expansive emergency powers granted to our former governor for a year and a half established a troubling precedent of government overreach that is proving very difficult to reverse,” Borrello said in a statement. “The mask mandate for school children is a blatant example.”
“In handing down this regulation, the Health Department exceeded its authority and is attempting to override the judgement of parents, many of whom are vehemently opposed to masking their children seven hours a day,” Borrello said.
A spokesperson for the state education department said they would not comment on pending litigation.
A rep with the DOH said, “The department does not comment on pending litigation.”
The governor’s office did not immediately return a request for comment.
Additional reporting by Selim Algar
