Stepien v. Murphy
| Citation | 574 F.Supp.3d 229 |
| Decision Date | 07 December 2021 |
| Docket Number | Civ. No. 21-CV-13271 (KM) (JSA) |
| Parties | Cynthia STEPIEN on behalf of herself and her minor child; Stamatia Dimatos Schreck, on behalf of herself and her three minor children; Ryan Cody, on behalf of himself and his minor child J.C. ; Elly Ford on behalf of herself and her minor child A.F.; Gabe McMahon; M.F.; M.K.N.; K.B.; B.W.; L.R.; J.V.P.; V.P.; D.M.; B.M.; A.M.; and All Others Similarly Situated, Plaintiffs, v. Philip D. MURPHY, Governor; Angelica Allen-McMillan, Commissioner of Education; Judith M. Persichilli, Commissioner of Health, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Bruce Ira Afran, Bruce I. Afran, Attorney-at-Law, Princeton, NJ, for Plaintiffs.
Daniel Michael Vannella, Carolyn G. Labin, Office of Attorney General of New Jersey, Trenton, NJ, for Defendants.
This matter comes before this court on the plaintiffs’ motion for an Order to Show Cause as to Vacating or Staying Executive Orders 251 and 253. (DE 12.)1 Plaintiffs seek a preliminary injunction vacating the executive orders ("EOs") insofar as they require students, staff, and visitors to New Jersey schools to wear face masks while inside school buildings.
It is tempting to view the question before the court as "Should students and others be required to wear masks in school buildings?" That is a temptation a court must resist. In general, the wisdom of such public policies is not an issue for the courts, but for the people's elected representatives. The court's role is far more modest.
That said, the U.S. Constitution does impose limits on governmental action, which a court is bound to enforce. Plaintiffs assert that the in-school mask mandate exceeds those limits. They invoke the Equal Protection clause. But where a rule does not implicate a suspect classification, for example, race or ethnicity, the Court's authority to second-guess policy decisions is very limited. Plaintiffs also invoke the First Amendment. But where a rule incidentally affects speech for reasons not related to its content, it may be allowed as a permissible "time, place, and manner" regulation. In short, constitutional provisions designed primarily to prohibit unequal treatment of minorities and suppression of unpopular messages have some application here, but that application is limited.
The United States Supreme Court instructs us that "schools must teach by example the shared values of a civilized social order." Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675, 684, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). One such value is that, when faced by a common catastrophe like a pandemic, we must all make some sacrifices to protect ourselves and our more vulnerable neighbors. Citizens on both sides of this issue surely have in common a concern for our children's welfare, although they may differ as to how that goal should be pursued. And all must admit that these EOs impose some hardship upon those who are required to wear masks while in school buildings. Considered apart from their health benefits, the masks may also be seen to have educational disadvantages. Nevertheless, the decision to impose the in-school mask mandate is a rational one, and its burden on students and others is easily justified by the government's interest in controlling the spread of COVID-19 while maintaining in-person schooling.
I hold that the government acted within broad constitutional bounds when it enacted the in-school mask requirement that is challenged here. The motion for a preliminary injunction is denied.
In late 2019, a novel coronavirus, SARS-CoV-2, which causes the disease known as COVID-19, began to circulate in China and quickly spread around the world. Beginning in March 2020, state and local governments in the United States began issuing emergency orders to reduce the spread of COVID-19. In New Jersey these orders led many non-essential businesses to shut down and schools to shift to remote learning, often via Zoom or other video applications. To date, well over a million New Jerseyans have contracted COVID-19 and more than 25,000 have died. NJ COVID-19 Dashboard, Cases and Trends, https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml. Nationally, there have been more than 48 million confirmed cases of COVID-19 and 780,000 deaths. New York Times, Coronavirus in the U.S., https://www.nytimes.com/interactive/2021/us/covid-cases.html. Just since defendants filed their brief on September 8, 2021, nearly 150,000 Americans have died from COVID-19. (Opp. at 1.) Even after highly effective vaccines became widely available in the Spring of 2021, COVID-19 continued to spread, because of the emergence of new, more virulent variants, including the Delta variant, and because a large proportion of the population remains unvaccinated. (DE 24-9, Exs. 30–38.)
Since the beginning of this school year, more than 25,000 K-12 students in New Jersey have tested positive for COVID-19. NJ COVID-19 Dashboard, School-Related Dashboards, https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml One study found that among children between the ages of 5 and 14, COVID-19 was the sixth leading cause of death in August and September 2021. JARED ORTALIZA , KENDAL ORGERA , KRUTIKA AMIN , AND CYNTHIA COX , COVID-19 continues to be a leading cause of death in the U.S. in September 2021 , Peterson-KFF Health System Tracker, https://www.healthsystemtracker.org/brief/covid19-and-other-leading-causes-of-death-in-the-us; see also JEFFERSON JONES , Epidemiology of COVID-19 in Children Aged 5 – 11 years , CDC ACIP Meeting, Nov 2, 2021, https://www.cdc.gov/vaccines/acip/meetings/downloads/slides-2021-11-2-3/03-COVID-Jefferson-508.pdf. Nearly one third of all child cases of COVID-19 nationally occurred in the three-month period between August 13 and November 11, 2021, driven by the resumption of in-person school and the more contagious Delta variant. (Amicus Br. at 4 .)
Remote learning was unpleasant for many students and teachers, and extremely inconvenient for working parents. Studies have shown that it is an inferior method of instruction as compared to in-person education. (DE 24-12, Ex. 41.) Thus, as the 2021–22 school year approached, New Jersey Governor Phil Murphy sought to have students return to in-person schooling while also taking steps to inhibit or prevent the spread of the COVID virus and its variants. To achieve that goal, he issued EO 251 on August 6, 2021. EO 251 emphasized the importance of in-person learning, the lack of availability of vaccines for children under 12 years of age,2 and the danger posed by the Delta variant. With narrow exceptions, it mandated that everyone entering a school building, including but not limited to students, must wear a face mask. (EO 251, at 2–6; DE 24-1 ¶ 75).3 At the time that EO was issued, more than 4 million children across the country had been infected with COVID-19, more than 17,000 children had been hospitalized, and 371 children had died from the disease. (DE 24-8, Ex. 24.)
On July 2, 2021, plaintiffs filed a complaint in this court, requesting that I enjoin the executive orders.4 (DE 1.) A first amended complaint was filed a week later. (DE 2.) On August 6, 2021, Governor Murphy issued EO 251, renewing the mask mandate in the state's schools. (DE 11 ¶ 26.) On August 26, 2021, Murphy issued a supplementary EO, partially related to masks in schools, numbered EO 253. (Mot. at 36.) Plaintiffs filed a second amended complaint on August 30, 2021. (DE 11.) That same day, plaintiffs also sought an Order to Show Cause as to Vacating or Staying the EOs. (DE 12.) I ordered the parties to brief the issues and appear for oral argument via videoconference on September 9, 2021. (DE 16.) Based on the parties’ briefs, factual submissions, and oral argument, I denied the plaintiffs’ request insofar as it sought a temporary restraining order immediately suspending the operation of the EOs. (DE 12, 24, 25.)
After the initial hearing, I ordered expedited discovery, and plaintiffs moved to compel the production of certain documents. (DE 28–30.) I denied the motion to compel, in part as unnecessary (because the defendants had complied) and in part because the material sought was protected by deliberative process privilege. (DE 36.)
After the close of supplemental discovery on October 22, 2021, I permitted additional briefing to be submitted by November 23, 2021. (DE 38.) The American Academy of Pediatrics ("AAP") and its New Jersey chapter moved to file an amicus brief on November 19, 2021. (DE 41.) Plaintiffs filed a supplemental brief on November 23, 2021. (DE 45.) For responses to the AAP's motion to file an amicus brief, I set a deadline of Friday, December 3, 2021. (DE 44.) As of today, December 7, 2021, no responses have been filed. Plaintiffs’ motion, insofar as it sought a preliminary injunction, is therefore fully briefed and ripe for decision.
Federal Rule of Civil Procedure 29 allows a private amicus curiae to file a brief with leave of the court. Fed. R. Civ. P. 29(a)(2). On November 19, 2021, the AAP and its New Jersey chapter moved to file an amicus brief in this case. (DE 41.) The AAP is a national organization of pediatricians that has over 67,000 members and over the last year has advised governments and private organizations on best practices related to children and the COVID-19 pandemic. (DE 41-1 at 2.) The proposed amicus brief contains a great deal of information related to the use of masks in schools that is helpful to the Court as background. The AAP's motion to file its amicus brief (DE 41) and the related motions to appear pro hac vice (DE 42, 43) are...
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