Students at Massapequa High School and across New York State...

Students at Massapequa High School and across New York State must wear a protective mask to school this fall. Credit: Newsday/Alejandra Villa Loarca

The Massapequa and Locust Valley school districts have filed a lawsuit challenging New York State's school mask mandate, which was imposed by the state health department to reduce the spread of the coronavirus.

According to the lawsuit, Gov. Kathy Hochul and state Health Commissioner Dr. Howard Zucker exceeded their authority and "took a clear step into policy-making territory reserved for the state legislature" with the Aug. 27 mandate.

The complaint, filed Friday in Albany County Supreme Court, also called "irrational, unreasonable" the requirement that all students, staff and visitors be masked in schools, citing "well documented" evidence that prolonged masking is harmful, especially for young children. It called the scientific benefit of masking children in schools "inconclusive" and suggested a possible partisan basis for mask policies, noting that almost all the mandates were in states controlled by Democrats, with Republican-controlled statehouses banning mandates outright or leaving them to local control.

The Massapequa school district is one of the largest in Nassau County, with 6,713 students in 2019-20. Locust Valley had 2,034 students.

Melville law firm Hamburger, Maxson, Yaffe and Martingale represents the plaintiffs. The firm represented Massapequa last year in an unsuccessful attempt to overturn a decision by Section VIII, the governing body for Nassau County sports, to suspend fall high school sports because of the pandemic.

Both Massapequa and Locust Valley ran mask-optional summer school programs with minimal COVID-19 spread, according to the complaint. Massapequa, with 900 to 1,1100 students each week, had nine positive cases; Locust Valley, with 94 students each week, had three.

 Locust Valley Middle School and High School had minimal spread...

 Locust Valley Middle School and High School had minimal spread of COVID-19 during summer session, district officials said. Credit: Barry Sloan

Both districts also initially planned mask-optional policies for the fall semester. They reversed course after the state warned that board members could be ousted and school districts could have state financial aid withheld.

The Centers for Disease Control and Prevention calls vaccination the leading public health strategy to end the pandemic, but children under 12 are not yet eligible for vaccines. The agency recommends that everyone wear masks in K-12 schools, regardless of vaccination status, due to the "highly contagious" delta variant of the coronavirus. Masks provide some protection, but their primary benefit is to protect others by reducing the emission of virus-laden droplets when people breathe, according to the CDC.

The agency said this month that COVID-19 hospitalizations among children and adolescents rose by nearly fivefold between late June and mid-August.

Locust Valley school board president Brian Nolan and Massapequa board president Kerry Wachter said in virtually identical affidavits that the state mandate "paints with the broadest brush possible" and did not consider factors "unique" to the community. Both trustees said in the affidavits that their districts' classrooms have working windows and air-conditioning, and HVAC systems with the highest filtration recommended.

One public health expert called the suit "very concerning." Susan Michaels-Strasser, assistant professor of epidemiology at Columbia University and senior director of human resources for health development at ICAP, a university initiative supporting HIV/AIDS research, compared mask mandates to public health measures like laws against intoxicated driving or requiring lifeguards at public pools.

She said masking was a proven strategy in the public health effort against the virus, along with vaccination and distancing.

"We want to throw at it every single tool we have," she said. "This cost-benefit analysis to me is quite clear, because we want to protect all our children and their families. We also want to provide schooling, and we want to keep these kids in school."

Michaels-Strasser said the districts' arguments about low community spread encouraged a "completely illusory" sense of insulation.

"Surrounding districts and surrounding communities may not have that," she said, "and they come to your towns to shop, you go to their towns to shop."

Massapequa school trustee Jeanine Caramore, who has a child in district schools and is identified as a plaintiff in the lawsuit, declined to comment when reached by phone Monday morning. A representative for the districts did not comment.

Haley Viccaro, a spokeswoman for Hochul, said the governor’s office would not comment on pending litigation. Last week, Vaccaro shared remarks Hochul made in Buffalo about new measures, including the mask mandate, intended to combat the delta variant.

"We'll do it now and we'll assess because there'll be parts of our state where the numbers drop, you get the vaccination nods, and we get the vaccine out to children," Hochul said, according to a transcript of her remarks.

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