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Massachusetts faces legal challenges to universal mask mandates in public schools

At least six lawsuits have been filed

Kristen Gay helps one of her second-grade students sound out a word as she tutors them in reading at Pyne Arts Magnet School in Lowell.
Kristen Gay helps one of her second-grade students sound out a word as she tutors them in reading at Pyne Arts Magnet School in Lowell.Jessica Rinaldi/Globe Staff

Massachusetts education leaders are facing multiple legal challenges to the statewide indoor mask mandate for public schools, which was extended earlier this week until at least Nov. 1.

At least six lawsuits have been filed across the state, naming either the Department of Elementary and Secondary Education or Commissioner Jeffrey Riley as a defendant. Some of the cases also name various public school districts, including Andover, Cambridge, Dover-Sherborn, and many others.

Colleen Quinn, a spokeswoman for the state’s education agency, declined to comment on the lawsuits due to the pending proceedings, but said there will be a motion considered in Hampden County next week to consolidate the cases.

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Ryan McLane, who represents the nonprofit The Family Freedom Endeavor, which is behind the Hampden County lawsuit, said he plans to oppose that motion because his argument is strategically different than the other five lawsuits.

“We specifically are going after the state’s authority,” he said. His clients would prefer that local boards of health or school committees make mask-wearing decisions.

On the other hand, New Hampshire-based attorney Robert Fojo is representing the nonprofit and parent groups behind the other five lawsuits, which argue that neither the education agency nor any school districts have the statutory authority to pass broad health measures.

“Wearing a mask should be a personal choice between a parent and a child,” he said Thursday in an interview with the Globe. “It should not be imposed on them by a school district that lacks the expertise or authority concerning these broad health measures.”

Of the lawsuits Fojo filed, three are on behalf of nonprofit Children’s Health Rights of Massachusetts. A fourth was filed on behalf of Citizens for Medical Freedom Inc., also a nonprofit group, and the fifth was filed for a group of parents on behalf of their children.

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In the complaints, Fojo writes that the state education agency’s mask mandate is preempted by Department of Public Health policy, which does not explicitly require mask-wearing for COVID-19.

“‘Emergency’ measures that appeared to be appropriate last year are less appropriate now, nearly 18 months later, given the wealth of information available that demonstrates Massachusetts’s healthcare system never came close to reaching capacity, the Coronavirus has had no impact on children, and the use of face masks is not only ineffective to curb the spread of the virus but harmful for children,” Fojo wrote in a complaint he filed on Sept. 20, seeking declaratory judgment and injunctive relief.

Though the coronavirus generally affects children less severely than adults — leading to fewer hospitalizations and deaths in younger age groups — data has shown that the virus has affected children. From Sept. 12 to 25, seven children from birth to age 11 were newly hospitalized with COVID-19 in Massachusetts, and six kids between ages 12 and 17 were hospitalized, according to data from the state’s Department of Public Health. One child under the age of 19 died from COVID-19 in the same two-week period, the data show.

The state’s mask mandate, which requires both students and staff to wear face coverings regardless of vaccination status, allows middle and high schools to lift the requirement for vaccinated people prior to Nov. 1 if 80 percent of students and staff are vaccinated. Schools are required to submit an attestation form to the state before lifting the mask mandate.

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As of Tuesday, no districts had submitted forms yet, Quinn said, but they can apply on a rolling basis. Unvaccinated students and staff in schools that have lifted the mandate will still be required to wear masks.


Felicia Gans can be reached at felicia.gans@globe.com. Follow her on Twitter @FeliciaGans.