“We will not stop fighting to protect New Yorkers, and we are confident we will continue to prevail.”
The legal dispute over masks comes on the heels of the latest Covid-19 surge, as governments around the world have unveiled a series of new restrictions to abate the spread of the newest variant, Omicron. Proponents of mask mandates have reiterated that the science has shown it to be effective at curbing transmission, but politics and pushback have long surrounded coronavirus safety restrictions.
Attorney Judith Vale, who represented the state in a virtual hearing on Tuesday, said that allowing the order to take effect immediately “will radically disrupt the status quo masking requirements that have existed for at least four months under [state Department of Health] regulations.”
“Disrupting the status quo like that will cause … immediate and irreparable public harm as DOH determined in issuing the regulations and as the state has provided ample evidence to demonstrate,” she said.
Chad LaVeglia, representing plaintiffs in the case, said “children with masks is not the status quo” — though the judge later stressed that the ruling applied to a broader slate of public settings beyond schools.
The state filed a notice of appeal on Monday night, as Hochul released a statement saying her administration was “pursuing every option to reverse this immediately.”
“I’m encouraging parents and students to continue doing what they’re doing,” Hochul said later on Tuesday. “Because the last thing I want to see is a different trend because people gave up on masks.”
Uncertainty in schools: Confusion had ensued in New York’s schools since the ruling. The State Education Department told schools late Monday that they should “continue to follow the mask rule,” but some school districts — including several on Long Island — announced that masking will no longer be required starting Tuesday.
State Education Commissioner Betty Rosa applauded the judge’s decision on Tuesday to pause the order.
“We are pleased the Appellate Division granted the application by the Department of Health and the Governor’s office, confirming the lower court’s decision is stayed pending further proceedings,” she said in a statement. “As such, the mask mandate remains in effect for schools across the state.”
The ruling declaring the mandate unenforceable had also followed actions by at least two school districts last week, Massapequa and Plainedge, that announced their intentions to make masking optional after the school requirement expires on Feb. 21. The school mandate is separate from the requirement for indoor settings, which expires on Feb. 1.
New York City Mayor Eric Adams, who controls the nation’s largest school district, said on Tuesday that masking would continue in the city’s schools.
Background: Nassau County State Supreme Court Judge Thomas Rademaker wrote in his six-page decision that while Hochul and Health Commissioner Mary Bassett’s intentions in announcing the policy “appear to be well aimed squarely at doing what they believe is right to protect the citizens of New York State, they must take their case to the State Legislature” — which has the authority to issue Covid-related mandates.
Until the Legislature acts, Rademaker said, the policy — which was set to be reassessed on Feb. 1 — is “null, void and unenforceable as a matter of law.”
Hochul announced the mask mandate in early December in response to a surge in Covid-19 cases being driven by the Omicron variant. The policy was initially set to be in place through Jan. 15 — but later extended through Feb. 1 as New York faced record-high Covid-19 cases.
But the mandate has faced vocal pushback and compliance issues with enforcement left to local leaders. Some county leaders previously raised concerns that it is “practically not enforceable,” led by newly-elected Nassau County Executive Bruce Blakeman, a Republican.
Before the stay was imposed on Tuesday, Gov. Hochul said taking the mask mandate to the Legislature — which the Nassau County judge on Monday suggested has the power to institute such policies — remains an option.
“We disagree with their premise that it has to go to the Legislature, but as I said, as I’m looking at all my options, that is certainly out there,” she told reporters during an afternoon briefing in Syracuse. “I believe it will win on the merits today or tomorrow when that decision comes down. And if not, we do have all those other alternatives.”
Assembly Speaker Carl Heastie, meanwhile, signaled his own personal support for the policy when asked if lawmakers will advance it through legislation.
“I haven’t spoken to the members [of the Democratic conference], but me personally, I’m a huge proponent of all things that make the safest environment,” he said in an interview Tuesday.
“An optimal solution is always a legislative act signed by the governor. It probably has a little more weight than an executive order.”
Bill Mahoney contributed to this report.