Jane Doe v. Franklin Square Union Free Sch. Dist.

• Citation: 568 F.Supp.3d 270
• Decision Date: 26 October 2021
• Docket Number: Case No. 2:21-5012-FB-SIL
• Parties: Jane DOE on behalf of herself and her minor child, Sarah Doe, Plaintiff, v. FRANKLIN SQUARE UNION FREE SCHOOL DISTRICT, and Mary Bassett, in her official capacity as Commissioner of the New York State Department of Health Defendants.
• Court: U.S. District Court — Eastern District of New York

568 F.Supp.3d 270

Jane DOE on behalf of herself and her minor child, Sarah Doe, Plaintiff,

v.FRANKLIN SQUARE UNION FREE SCHOOL DISTRICT, and Mary Bassett, in her official capacity as Commissioner of the New York State Department of Health Defendants.

Case No. 2:21-5012-FB-SIL

United States District Court, E.D. New York.

Signed October 26, 2021

For the Plaintiff: SUJATA S. GIBSON, Gibson Law Firm, PLLC, 407 N. Cayuga Street, Suite 201, Ithaca, New York 14850, ROBERT F. KENNEDY, JR., MARY HOLLAND, Children's Health Defense.

For the Defendants: ADAM I. KLEINBERG, Sokoloff Stern LLP, 179 Westbury Avenue, Carle Place, New York 11514, TODD ALAN SPIEGELMAN, Office of the Attorney General, State of New York, 28 Liberty Street, 17th Floor, New York, New York 10005.

MEMORANDUM AND ORDER

BLOCK, Senior District Judge:

Plaintiff brings this action on behalf of herself and her minor daughter against defendants Franklin Square Union Free School District (the "School District") and the Commissioner of the New York State Department of Public Health in her official capacity (the "Commissioner")¹ alleging that the Commissioner's regulation requiring that New York State's school students wear masks (the "Mask Mandate") violates their constitutional substantive due process rights.

Plaintiff has moved for a preliminary injunction to prohibit defendants from enforcing the Mask Mandate. That motion is denied as a matter of law based on the parties’ submissions. But plaintiff also has two state law claims, and the Court has ordered a factual hearing as to whether preliminary injunctive relief should be fashioned based on those claims.

I. Background

The web that has entangled our nation in dealing with the myriad challenges spawned by the COVID-19 pandemic has ensnared our children. Now that the new school year has begun, the debate rages as to whether they should be required to be masked while attending school. Our country is being challenged to rationally decide how to best protect the health of our children in uncharted waters that make all of us medical guinea pigs. Indeed, there is no conclusive study as to either the short-term or long-term effects that mask wearing could have on children.

Nonetheless, for the following reasons, I am constrained to deny plaintiff's request for preliminary injunctive relief based on her alleged constitutional violations. However, since the Court is sensitive to the concerns that parents have for their children, it believes that a full exploration of the national mask mandate dynamics at play and the reach of the Commissioner's actions is warranted, as well as the reasons why the Court, sua sponte , ordered a hearing on the state law claims to determine whether they might separately merit preliminary injunctive relief.

The logical starting point is to comprehend the balance struck by our founding fathers between the powers of the federal government and those of the states, which informs us as to which level of government they decided should be responsible for enacting laws affecting our country's health and safety, and the standards that judges must employ in assessing the constitutionality of those laws.

A. The Tenth Amendment and the Police Power

The Tenth Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Const. Am. X.

By contrast, unlike those of the federal government, the States’ powers do not flow from the Constitution, and they do not need Constitutional authorization to act. Nat'l Fed'n of Indep. Bus. v. Sebelius , 567 U.S. 519, 535-36, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) : "Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the ‘police power.’ " Id.

The police power has traditionally encompassed "the authority to provide for the public health, safety, and morals ...." Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 569, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). The protection of public health is one of the historical underpinnings of the police power. See, e.g., Stone v. State of Mississippi , 101 U.S. 814, 818, 25 L.Ed. 1079 (1879) ("No one denies ... that it extends to all matters affecting the public health or the public morals."); Mugler v. Kansas , 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887) (police power entitles the legislature to enact measures "for the protection of the public morals, the public health, or the public safety.").

In the landmark Slaughter-House Cases , the Supreme Court noted that the police power incorporates the principle "that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community." 83 U.S. (16 Wall.) 36, 62, 21 L.Ed. 394 (1872). Thus, "[the police power] extend[s] to the protection of the lives, health, and property of the citizens ... and demand[s] the application of the maxim, salus populi suprema lex. " Bos. Beer Co. v. State of Massachusetts , 97 U.S. 25, 33, 24 L.Ed. 989 (1877).²

In 1905, the Supreme Court applied the police power to vaccine mandates in Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905). Explicitly citing the police power, the Court upheld a broad construction of the States’ powers to regulate public health and reaffirmed that public health is the domain of the states and their legislatures. Id. at 24-25, 25 S.Ct. 358. A matter of public health is "for the legislative department to determine in the light of all the information it had or could obtain." Id. at 30, 25 S.Ct. 358. Consistent with the historical conception of the police power, the Jacobson court noted that, at least where the police power is concerned, liberty of the individual is tempered by the common good:

The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.

Id. at 26-27, 25 S.Ct. 358.

Jacobson established a two-part test for judicial review of public health regulations: Such a regulation should only be struck down if it (1) "has no real or substantial relation" to public health, or (2) "is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law." Id. at 31, 25 S.Ct. 358.

But Jacobson predates judicially established tripartite nuanced tiers of review to assess a statute's constitutionality. Under those tiers, if the right infringed is fundamental or the law relies upon a suspect classification, strict scrutiny is applied. San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Under that standard, a law is upheld only if it is narrowly tailored to a "compelling state interest." City of Cleburne, Tex. v. Cleburne Living Ctr. , 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). If the law does not infringe upon a fundamental right but "incidentally" burdens a First Amendment right or implicates a quasi-suspect classification such as one predicated on gender, intermediate scrutiny would apply. See United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (First Amendment); Craig v. Boren , 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (gender discrimination). Under that standard the law must also be narrowly tailored but must need be "no greater than is essential" to the furtherance of an important or substantial governmental interest. O'Brien , 391 U.S. at 376-77, 88 S.Ct. 1673. In all other cases, rational basis review is the standard. See San Antonio , 411 U.S. at 17, 93 S.Ct. 1278. Under that standard, the law would be constitutionally flawed only if it was not "rationally related to a legitimate state interest." Cleburne , 473 U.S. at 440, 105 S.Ct. 3249.

Thus, courts are challenged today with the task of harmonizing Jacobson and the test it iterates with the tripartite modern standards of review typically used by courts evaluating constitutional challenges.

Further complicating the challenge is some inconsistency in the Supreme Court's substantive due process jurisprudence. In Rochin v. California , 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), the defendant swallowed morphine capsules during a search, whereupon sheriff deputies took him to a hospital to have his stomach pumped to recover evidence. The Supreme Court held 8-0 that such conduct violated the Due Process Clause because it "shocks the conscience." Id. at 209, 72 S.Ct. 205. Three years later, it articulated the modern formulation of rational basis review in Williamson v. Lee Optical of Oklahoma, Inc. , 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Nevertheless, courts have continued to invoke the "shocks the conscience" standard in substantive due process cases. For example, in Maniscalco v. New York City Department of Education , 2021 WL 4344267 (E.D.N.Y. Sept. 23, 2021) aff'd No. 21-2343, 2021 WL 4814767 (2d Cir. Oct. 15, 2021),³ Judge Cogan held that a mandatory vaccination order for employees of the city's Department of Education was not "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. at *3 (quoting Hurd v. Fredenburgh , 984 F.3d 1075, 1087 (2d Cir. 2021) ).

Although the interplay between the "shocks the conscience" standard and rational basis review is not clear, it appears that the former is generally reserved for evaluating individual governmental actions not embodied in a statute, regulation or similarly binding statement of policy. Since the Mask Mandate is a regulation, the...