Schools can’t force children to be masked in order to get an education. That’s the argument that has been made by Princeton lawyer Bruce Afran in a lawsuit filed in federal court challenging any existing or future mask mandates in New Jersey schools.
Three parents and their children are named as plaintiffs in the lawsuit filed in the U.S. District Court for New Jersey against Gov. Phil Murphy, Health Commissioner Judy Persichilli, and Education Commissioner Angelica Allen-McMillian.
Afran said during a press conference on Wednesday that COVID-19 does not justify the state mandating masks and imposing strict rules on children when schools are the least dangerous places for the transmission of COVID and most teachers and staff have been vaccinated. He said Murphy’s rules are draconian and criticized the governor’s use of executive orders. The suit also calls on the courts to bar schools from imposing mandatory COVID testing on children without written parent consent.
In the lawsuit, Afran argues that school children have been singled out for continued restrictions. Executive Order No. 242, issued in May, eliminated all masks, barriers and social distancing for children and adults at theaters, malls, retail establishments, restaurants, catering halls, athletic events and stadiums, political gatherings and public protests, public lectures, parks and beaches, houses of worship, weddings, bar and bat mitzvahs, communions, and other similar places of congregation.
“But children in New Jersey’s public schools have continued to be made subject to mandates that they must wear face masks and engage in social distancing and other isolating measures, including physical transparent barriers surrounding their desks, while in physical attendance at public schools,” reads the lawsuit. “Under these policies and practices, schoolchildren who refuse to wear face masks have not been permitted on the premises of their schools or to participate in organized school activities and were required to remain at home for remote learning, losing the opportunity to associate with other students, teachers, and staff.”
The suit argues that it is unfair that exceptions to the mask-wearing requirement are made only for health or safety reasons particular to certain schoolchildren but are not available to the general student population including plaintiffs.
Parents named in the lawsuit also discussed at the press conference how masks have made it difficult for their children to learn and interact in school, especially children with special needs or learning differences.
Murphy announced on June 28 that the executive order regarding masks in schools will be allowed to expire on July 4, but that school districts were authorized to continue mask mandates and other Covid restrictions. Murphy and the education commissioner said school districts were still empowered and authorized to continue social distancing and the physical separation between students, and that the governor had the power to reimpose mask mandates and other restrictions via executive order.
Afran argued that mask mandates and plexiglass dividers in schools violate children’s First Amendment rights, and block communication and free expression. “Most communication is non-verbal. Being masked all day prevents basic communication and prevents the development of communication skills in young children,” he said.