Doe v. Salina

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JANE DOE, JOHN DOE, DOE CHILD 1, and DOE CHILD 2, Plaintiffs, v. DR. EDWARD A. SALINA, JR., et al., Defendants.

No. 23-CV-3529 (JMW)

United States District Court, E.D. New York

December 11, 2024

Ronald A. Berutti, Esq. Murray-Nolan Berutti LLC Attorney for Plaintiffs

Adam I. Kleinberg, Esq. Connor Mulry, Esq. Guercio & Guercio LLP Attorneys for Defendants

MEMORANDUM AND ORDER

JAMES M. WICKS UNITED STATES MAGISTRATE JUDGE

COVID-19 mask mandates spawned a fertile ground of litigation.^[1] Some arose in the employment context in the private sector,^[2] while others challenged government regulation.^[3] This case, however, involves constitutional challenges to administrative actions taken by a Long Island school district that arise out of the state's mask mandate. That is, did the actions taken by the district and its officials in response to the mask mandate infringe upon the constitutional rights, namely First Amendment right to assembly and association, as well as Equal Protection, of Plaintiffs who are parents of two minor children who attended the school? The challenge is not to the mask mandate itself; rather, it is to the actions taken in response.

Plaintiffs Jane Doe and John Doe, a husband and wife (the “Parent Plaintiffs”), bring this action with and on behalf of their two minor children, Doe Child 1, and Doe Child 2 (the “Doe Children”) (collectively “Plaintiffs”), pursuant to 42 U.S.C. § 1983 alleging claims against the Plainedge Union Free School District and various school administrators arising out of Jane Doe's “public advocacy” against policies implemented at her children's elementary school -Eastplain Elementary School -- including its COVID-19 mask protocols. (See generally ECF Nos. 1, 32.) In response to this advocacy, the Complaint alleges, school administrators banned Jane Doe from school property, and the Doe Children faced retaliatory and unequal treatment for attending school without masks. (Id.) Plaintiffs filed their Amended Complaint on May 1, 2024, asserting violations of: (i) Plaintiffs' right to free speech and the free exercise thereof (Counts I and V); (ii) Plaintiffs' rights of association, assembly, and petition (Count II); (iii) procedural due process (Counts III and VI); and (iv) equal protection (Counts IV and VII) against Defendants Jennifer Maggio, Lynnda Nadien, Joseph Netto, Sonny Sagnuolo, Sisi Townson, Plainedge Union Free School District Board of Education, Edward A. Salina, Jr, Emily O'Brien, Sarah Azizollahoff, Catherine Flanagan, Raymond Paris (collectively, “Defendants”). (See generally, ECF No. 32.)

On May 24, 2024, Defendants filed a request for a pre-motion conference to dismiss Counts II through VII of the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which the Court granted on May 28, 2024 and scheduled a Pre Motion Conference before the undersigned. (See ECF No. 34; Electronic Order dated May 28, 2024.)^[4] At the premotion conference a briefing schedule was set. (ECF No. 36.) Defendants filed their Motion to Dismiss Counts II through VII of the Amended Complaint on November 14, 2024 (ECF Nos. 43, 45), which is opposed by Plaintiffs (ECF No. 44.) For the reasons that follow, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.

BACKGROUND

I. Factual Background

The following allegations are drawn from the Amended Complaint filed on May 1, 2024 (ECF No. 32) and the documents integral to it.

The Parties

Plaintiff Jane Doe, her husband, and two children, are all residents of Massapequa, New York. (ECF No. 32 at ¶¶ 8-11). The Doe Children were enrolled in the Plainedge Union Free School District (hereafter, the “District”) at Eastplain Elementary School (hereafter, the “School”) for the 2021-2022 school year. (Id. at ¶¶ 2-3.) Defendant Dr. Edward Salina Jr. is the Superintendent of the District, Emily O'Brien is the Principal of the School, Sarah Azizllahoff is the Assistant (Vice) Principal of the School, and Defendants Catherine Flanagan, Raymond Paris, Jennifer Maggio, Dr. Lynnda Nadien, Dr. Joseph Netto, Sonny Sagnuolo, and Sisi Townson are publicly elected Trustees (the “Trustees”) of the District's Board of Education (hereafter, the “Board”), also a named Defendant in this case. (Id. at ¶¶ 12-22.) The Board is responsible for policies and curriculum of the District. (Id. at ¶ 22.)

New York State's Response to the COVID-19 Pandemic and the Nassau Supreme Court Decision

In response to the COVID-19 pandemic, on March 7, 2020, then-New York State Governor Andrew Cuomo issued Executive Order No. 202, which declared “a State disaster emergency for the entire State of New York.” (See ECF No. 43-20 at 11.) On March 16, 2020, Governor Cuomo issued Executive Order 202.4, which ordered all schools to close for in-person instruction by March 18, 2020. (Id.) For the 2020-2021 school year, the New York State Department of Health (“NYSDOH”) issued emergency guidance that required face masks to be worn in schools. (Id.) The first of these was released on August 26, 2020, and entitled “Interim Guidance for In-Person Instruction at Pre-K to Grade 12 Schools During the COVID-19 Public Health Emergency” (the “Interim Guidance”). (Id.) On August 27, 2021, three days after Governor Kathy Hochul was sworn into office, NYSDOH Commissioner Howard Zucker issued “Commissioner's Determination on Indoor Masking Pursuant to 10 NYCRR 2.61” requiring universal masking in schools “until this determination is modified or rescinded” to combat the spread of the Delta COVID-10 variant, which was stated to be “approximately twice as transmissible as the SARS-COV-2 strain.” (Id. at 12.) On September 2, 2021, the NYSDOH issued “Interim NYSDOH Guidance for Classroom Instruction in P-12 Schools During the 2021-2022 Academic Year[,]” which clarified that under the Commissioner's Determination referenced above, “all students, personnel, teachers, administrators, contractors, and visitors must wear masks at all times indoors, regardless of vaccination status.” (Id.) On November 24, 2021, the NYSDOH Commissioner promulgated 10 NYCRR § 2.60 which continued to impose a mask mandate in schools, and, on December 10, 2021, NYSDOH Commissioner Mary T. Bassett issued “Commissioner's Determination on Indoor Masking Pursuant to 10 NYCRR 2.60” which continued the school mask mandate to combat the spread of the Delta COVID-19 variant. (Id. at 13.)

On January 24, 2022, Nassau County Supreme Court Justice Thomas Rademaker issued a Decision and Order declaring 10 N.Y.C.R.R. Part 2.60 void and unenforceable as a matter of law because it was promulgated and enacted unlawfully by an executive branch state agency (the “January 24th Decision”) (Id.) (citing Demetriou v. New York State Dep't of Health, 74 Misc.3d 792, 162 N.Y.S.3d 673 (Sup. Ct., Nassau Cty. 2022) (“Demetriou”)). The January 24th Decision was uploaded to the New York State Courts Electronic Filing System at 4:53 p.m. (Id.) That same evening, the New York State Education Department (“SED”) released a public statement that provided: “It is SED's understanding that the Department of Health will appeal the Nassau County Supreme Court decision, which will result in an automatic stay that will unambiguously restore the mask rule until such time as an appellate court issues a further ruling. Therefore, schools must continue to follow the mask rule.” (Id.) The State defendants in Demetriou immediately appealed the January 24th Decision. By 5:00 p.m. on January 25, 2022, the Appellate Division, Second Department granted a temporary stay of the January 24th Decision. (Id.) On January 25, 2022, SED released a second statement that read: “The Governor and State DOH have filed a Notice of Appeal and are seeking confirmation that the Court's order is stayed. While these legal steps occur, it is [SED's] position that schools should continue to follow the mask rule.” (Id. at 14.) The SED Commissioner also released a statement that day indicating the school mask mandate remained in effect. (Id.)

On January 28, 2022, SED released another statement indicating the Appellate Division, Second Department issued “a stay order which upheld the Department of Health's mask requirement in schools (10 NYCRR 2.60).” (Id.) This statement also provided that “the mask rule remained in effect, and school districts had to abide by any commitments to mask-wearing contained in their publicly posted reopening plans for the 2021-2022 school year.” (Id.) On January 31, 2022, the Appellate Division, Second Department granted a stay of the January 24th Decision pending the outcome of the appeal. (Id.) On March 2, 2022, the NYSDOH lifted the mask mandate for schools in the State of New York, making masks optional in schools. (Id.)

Plaintiff Jane Doe's Advocacy

During the 2020-2021 school year, students enrolled in the District including the Doe Children, attended school in-person subject to numerous COVID-19 protocols, including but not limited to: universal masking, social distancing, plexiglass surrounding classroom seating, and other measures. (Id. at ¶ 26.) Following the District's implementation of various COVID-19 policies in 2020-2021, Plaintiff Jane Doe sent multiple e-mails to various school board members in May 2021 expressing concern regarding the school's implementation of these policies. (Id. ¶¶ 26-31). Specifically, Mrs. Doe requested that there be new policies regarding the use of masks and that there either be an option for the parents to opt their children out, or for children to be unmasked at their desks. (Id. at ¶¶ 30-31). Mrs. Doe continued to do more mask-related advocacy-related activities such as attending school board meetings, arranging petition drives and sending more emails to board members regarding...