Donohue v. Hochul
| Decision Date | 23 February 2022 |
| Docket Number | 21-CV-8463 (JPO) |
| Parties | PATRICK DONOHUE, et al., Plaintiffs, v. KATHLEEN HOCHUL, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
The State of New York now generally requires schoolchildren to wear a mask, and the City of New York has generally enforced that requirement. Plaintiffs Patrick Donohue, Angela Nolan and Marie Farrell are the parents of disabled schoolchildren in the City of New York - S.J.D., S.N., and E.F respectively. Plaintiffs seek a declaration that the school mask mandate is unlawful, and they seek an injunction preventing various state and city officials and entities from implementing the requirement, in part for reasons related to the children's disabilities, and in part for other reasons. Plaintiffs have moved for a preliminary injunction.
The City Defendants - nominally Mayor Bill de Blasio, Chancellor Meisha Porter, Commissioner Dave Chokshi, the New York City Department of Education, and the New York City Department of Health - have moved to dismiss the complaint. Both the City Defendants and the State Defendants - Governor Kathleen Hochul, Commissioner Howard Zucker, Commissioner Betty Rosa Chancellor Lester Young, Jr., the New York Department of Health, the New York Department of Education, and the New York Board of Regents - oppose a preliminary injunction. For the reasons that follow, the complaint is dismissed and the motion for a preliminary injunction is denied.
Section 201 of New York's Public Health Law provides that the New York Department of Health “shall supervise and regulate the sanitary aspects of . . . activities affecting public health, ” N.Y. Pub. Health Law § 201(1)(m), and Section 206 provides that the Commissioner of that Department “shall . . . take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto, ” id. § 206(1)(a). To those ends, Section 225(a) provides that the sanitary code may “deal with any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York.” Id. § 225(a).
On August 27, 2021, to address “the emergence of the Delta variant” of COVID-19, the Public Health and Planning Council of the New York Department of Health issued Section 2.60 of Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York. (See Dkt. No. 61-1, at 2-16.) Section 2.60(a) provides that “any person who is over age two and able to medically tolerate a face-covering may be required to cover their nose and mouth with a mask or face-covering when . . . in certain settings as determined by the Commissioner, which may include schools.” 10 N.Y.C.R.R. § 260(a). Section 2.60(e) states that “face-coverings shall include, but are not limited to cloth masks, surgical masks, and N-95 respirators that are worn to completely cover a person's nose and mouth.” Id. § 260(e).
On the same day, the Commissioner of the New York Department of Health issued a determination pursuant to that authority relating to indoor masking. (See Dkt. No. 64-1, at 1-3.) The determination adopted recommendations of the Centers for Disease Control and Prevention (“CDC”) for “face/coverings in school settings” and “impos[ed] them as requirements.” As described by the Commissioner, those recommendations required “the universal masking of teachers, staff, students, and visitors to [preschool]-12 schools over age two . . . regardless of vaccination status, ” but covered only those who were “able to medically tolerate a face covering/mask, ” and remained “subject to applicable CDC-recommended exceptions.” (Dkt. No. 64-1, at 2.) The CDC's recommendations, hyperlinked in the determination, provide that “[e]xceptions can be made” for “[a] person who cannot wear a mask, or cannot safely wear a mask, because of a disability as defined by the Americans with Disabilities Act.” (Dkt. No. 644, at 1.)
The Public Health and Planning Council of the New York Department of Health voted to renew Section 2.60 on November 18, 2021. (See Dkt. No. 78.) To “curb the spread of the Omicron variant, ” the acting Commissioner renewed its determination on January 31, 2022. (See Mary T. Bassett, Commissioner's Determination on Indoor Masking Pursuant to 10 NYCRR 2.60 (Jan. 31, 2022), at 1-4.) The Commissioner also extended the mandate “to any gathering on school grounds which addresses or implements educational matters where students are or may reasonably be expected to be present.” (Id. at 2.) The New York City Department of Education has implemented the mask mandate since the school year began. (See Dkt. No. 64 ¶ 4.)
Plaintiffs are three parents of schoolchildren who attend school in New York City. Plaintiff Patrick Donohue is the parent and guardian of S.J.D., a 16-year-old student with a traumatic brain injury. (See Compl. ¶¶ 6, 10.) S.J.D. attends a private school called the International Institute for the Brain (“iBRAIN”). (See Compl. ¶¶ 11-12.) She is fully vaccinated, and she has not worn a mask “at any time during her educational program at iBRAIN.” (Compl. ¶ 13.) The complaint alleges that “[w]earing a mask would significantly interfere with S.J.D.'s breathing, ” and “[w]earing a mask would significantly interfere with her ability to participate in her educational and related service program throughout the school day.”
(Compl. ¶¶ 14-15.) Her individual education plan (“IEP”) does not include a requirement that she wear a mask. (Compl. ¶ 17.)
Plaintiff Marie Farrell is the parent and guardian of E.F., a 16-year-old student with autism. (See Compl. ¶¶ 19, 22.) E.F. attends a public school in Staten Island. (See Compl. ¶ 23.) She is not vaccinated, and the parties agree that E.F. wears a mask to school. (See Compl. ¶ 22; Dkt. No. 63.) The complaint alleges that “E.F. currently has difficulty communicating, ” and that “[d]onning a mask would further inhibit her speech progress and cause further dysregulation, triggering maladaptive behaviors such as elopement, bouncing, screaming, etc.” (Compl. ¶ 24.) Her individual education plan does not include a requirement to wear a mask. (See Compl. ¶ 27.)
Plaintiff Angela Nolan is the parent and guardian of S.N., a 12-year-old student with a learning disability. (See Compl. ¶¶ 29, 32.) S.N. attends a public school in Staten Island, and he is fully vaccinated. (See Compl. ¶¶ 32-33.) The parties agree that he wears a mask to school. (See Dkt. No. 63.) The complaint alleges that “S.N. struggles with forming intelligible speech” (Compl. ¶ 34), and that “[w]earing a mask would significantly interfere with his ability to participate in [his] educational and related service program throughout the school day, especially when attempting to ‘model' teachers or related service providers to reach his goal of [communicating] ‘low jaw' sounds” (Compl. ¶ 35). As alleged, his individual education plan does not include a requirement to wear a mask. (Compl. ¶ 36.) Plaintiffs allege that they each sent notices to their respective local education agencies alleging that the mask mandate had improperly modified the students' individual education plans. (See Compl. ¶¶ 432-433.)
Plaintiffs filed this class action complaint on October 14, 2021. The 187-page complaint generally asserts three sets of claims. The first set asserts that the mask mandate violates the rights of disabled students under various federal statutes. Plaintiffs contend that the mandate violates the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act because it contravenes the terms of Plaintiffs' individual education plans. (See Compl. ¶¶ 454-458). Plaintiffs further contend that Defendants violated Section 1415(j) of the Individuals with Disabilities Education Act when they enforced the mask mandate during Plaintiffs' administrative proceedings. (See Compl. ¶¶ 452-455). Plaintiffs contend that the mandate violates Title II of the Americans with Disabilities Act (“ADA”) on the ground that a mask is an impermissible “restraint.” (See Compl. ¶¶ 459-460). And Plaintiffs contend that the mandate exceeds the terms of any authorization from the Food and Drug Administration. (See Compl. ¶¶ 385-395).
A second set of claims asserts that the mask mandate violates various federal constitutional rights. Among other things, Plaintiffs contend that the mask mandate violates the First Amendment's Establishment Clause (see Compl. ¶¶ 395-402), the Fourth Amendment's prohibition on unreasonable searches and seizures (see Compl. ¶¶ 467-483), the Eighth Amendment's prohibition against cruel and unusual punishment (see Compl. ¶¶ 403-509), the Fourteenth Amendment's Due Process Clause (see Compl. ¶¶ 419-429, 434-440), and the Fourteenth Amendment's Equal Protection Clause (see Compl. ¶¶ 430-433). Plaintiff further asserts rights to family integrity, privacy, personal autonomy, and bodily integrity. (See Compl. ¶¶ 410-418). In parallel, Plaintiffs assert claims under 42 U.S.C. § 1983. (See Compl. ¶¶ 448451, 462-466).
A third set of claims asserts causes of action under state law, including allegations that the mask mandate exceeds statutory authority under state law. (See Compl. ¶¶ 81-130, 425, 428). Plaintiffs also contend that the mandate violates New York's State Education Law § 313, which prohibits discrimination in school admissions (see Compl. ¶¶ 441-443), and Title XI of the New York State Constitution, which obligates New York to maintain public schools (see Compl. ¶¶ 444-447).
The City Defendants have moved to dismiss the complaint in part under Federal Rule of Civil Procedure...
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