The mother of a 10-year-old Franklin Square student has filed a federal lawsuit demanding her daughter be allowed in school without a mask because she suffers from severe asthma and anxiety.
The suit, filed Tuesday in U.S. District Court in the Eastern District, lists the Franklin Square School District and state Health Commissioner Howard A. Zucker as defendants, and asks for injunctive relief so the child can safely return to John Street School this fall. The suit identifies the child only as "Sarah Doe" and lists her mother as "Jane Doe."
It alleges the state's school mask mandate is unconstitutional and violates the child’s due process rights.
According to the court documents, the child’s pediatrician certified that it was unsafe for her to wear a mask all day at school and wrote a medical exemption, which the district turned down Friday.
"This denial violates Sarah’s fundamental rights," the court document states. "Sarah and her family have constitutionally protected rights to a medical exemption from a state regulation that can cause Sarah harm."
Guidance issued last week to districts from the state health department said: "People with medical or developmental conditions that prevent them from wearing a mask may be exempted from mask requirements, as documented by a medical provider."
The family's Ithaca-based attorney, Sujata S. Gibson, said she filed an emergency motion Wednesday asking that the school district be forced to honor Sarah's medical exemption, pending a hearing. She said the child will attend the first day of school Thursday but "is very nervous." The girl will wear a mask if she has to, Gibson said, "but her mother is very worried for her physical and psychological safety. She simply can't breathe with it on."
On Aug. 24, the day Gov. Kathy Hochul was sworn in, she ordered a mask mandate for students, staff and visitors to all New York K-12 schools. Hochul said the mandate was necessary to help control the spread of the highly contagious delta variant of the coronavirus, which has caused a surge in COVID-19-related cases, hospitalizations and deaths.
Three days later, the state health department put a mandate in place for universal masking inside school buildings. Infectious disease experts praised the mandate, saying it would help keep children safe.
A state health department spokesperson said they do not comment on pending litigation. Franklin Square superintendent Jared T. Bloom also said the district could not comment on pending litigation.
According to the lawsuit, the child has had severe respiratory challenges since birth and been treated at an emergency room after severe asthma attacks. She is also prone to anxiety, exacerbated by her struggles to breathe when wearing a mask, the suit states.
The court papers also state that the student faced numerous challenges last year as a fifth-grader when she was masked in school.
She had to start carrying her asthma pump to school and needed to use it more frequently as her breathing became increasingly difficult because of mask use, according to the court documents.
"Until last year, Sarah had gotten all A’s and was a model student. Her grades began slipping and she was frequently asked to go to the principal’s office for pulling down her mask to try to breathe. … Sarah’s anxiety became crippling," the court documents state.
The denial of a medical exemption for the girl came after a recommendation from a school district physician who "based this decision on review of the [Centers for Disease Control and Prevention] website which makes generalized representations about asthma and face masks," the court papers state.
Her mother had submitted a physician's exemption as well last spring but that too was denied after a review by a district doctor, according to the lawsuit.
"There is nothing in the law that authorizes them to overrule this girl's treating physicians," Gibson said.
The court documents also question the use of masks by children to prevent the spread of COVID-19. Gibson noted that none of the currently available face coverings for COVID-19 are approved or licensed by the federal government for use by children.
"Plaintiff does not consent to allow her daughter to be forced to use this experimental device, especially as it would be against the medical advice of her child’s treating physician," the court papers state. The child "has a protected Fourteenth Amendment right to life, and to protect her daughter’s life, secured by the Due Process Clause of the United States Constitution, which includes the right to refuse nonconsensual administration of any objectionable medical product, and/or to be free from the forced administration of medical procedures and devices that Plaintiff reasonably believes may cause her daughter harm."