L.T. v. Zucker

L.T. et al., Plaintiffs, v. HOWARD A. ZUCKER, in his official capacity and in his individual capacity, Defendant.

No. 1:21-CV-1034 (LEK/DJS)

United States District Court, N.D. New York

October 13, 2021

MEMORANDUM-DECISION AND ORDER

LAWRENCE E. KAHN United States District Judge

I. INTRODUCTION

Plaintiffs minor students attending P-12 schools in New York State and their parents, bring this action for injunctive and declaratory relief against Defendant Howard Zucker in his official capacity as Commissioner of Health for New York State and in his individual capacity. See Dkt. No. 1 (“Complaint”). Plaintiffs challenge the mask mandate issued by Zucker on August 27, 2021 and seek to enjoin its enforcement. Presently before the Court is Plaintiffs' request for temporary restraining order and expedited discovery in advance of an order to show cause hearing for preliminary injunction. Dkt. No. 4-1 (“Plaintiffs' Memorandum”). Defendant has filed his response in opposition. Dkt. Nos. 8 (“Morne Declaration”), 8-8 (“Defendant's Memorandum”). On October 5, 2021 Plaintiffs filed their reply. Dkt. No. 12 (“Plaintiffs' Reply”).

This case involves a mask mandate instituted by Defendant for K-12 schools in New York State. Mask mandates and the wearing of masks generally is an issue that has divided an already-polarized American public. On one hand, many view masks and mask mandates as a means necessary to protect citizens' inalienable right to life. Others view such mandates as an unnecessary and unjust government intrusion into the lives of citizens. Despite this division, the goals of citizens and policymakers on both sides of the issue remain similar: the creation and promotion of a free, prosperous, and healthy society. This remains true even as quarrelling over the means and methods used to achieve such goals unnecessarily transforms neighbors into strangers and friends into adversaries.

The present matter is no different. Plaintiffs and Defendant seek the same ends: to preserve the lives of U.S. citizens while promoting an environment wherein children may receive an education most beneficial for their futures. To advance this goal, Plaintiffs challenge an order issued by Defendant requiring all students, teachers, and visitors to wear face coverings in any P-12 school. Plaintiffs seek a temporary restraining order enjoining enforcement of the mandate, arguing that it infringes on the First Amendment rights of students and impairs their learning, and expedited discovery in advance of a later hearing on their request for preliminary injunction. For the reasons stated below, Plaintiffs' request for a temporary restraining order is denied and their request for expedited discovery is granted.

II. BACKGROUND

A. The COVID-19 Pandemic

SARS-COV-2 (“COVID-19” or “COVID”) is a deadly virus reported to have killed over 700, 000 Americans^[1] and over 55, 000 New Yorkers^[2] since March of 2020.^[3] COVID may be easily spread through respiratory droplets expelled by infected persons, even those who exhibit no symptoms.^[4] These droplets can remain airborne for hours, especially in poorly ventilated environments.^[5]

Face coverings have been a common, yet divisive, means of combating the spread of COVID-19. National organizations like the Centers for Disease Control and Prevention (“CDC”) and supranational organizations like the World Health Organization (“WHO”) alike have recommended the use of masks to combat the spread of COVID-19. See Morne Dec., Ex. T at 2 (recommendation from CDC) & Ex. CC. at 1-2 (recommendation from WHO). Even so, governments that have attempted to mandate mask-use have been faced with protests and legal challenges.^[6]

B. The Mask Mandate

On March 7, 2020 the Governor of New York declared a state of emergency in response to the public health crisis caused by COVID-19. See Morne Dec., Ex. D at 2. Despite the government's invocation of emergency powers, COVID spread quickly through the state. After months of quarantines, economic shutdowns, hospital bed shortages, and thousands of deaths, the state of emergency ended on June 24, 2021 due to declining hospitalization and positivity rates. See id.

Unfortunately, this success was to be short-lived. In the summer of 2021, what health officials refer to as the Delta variant became prominent in New York and sent COVID infections skyrocketing ten-fold. Id., Ex. H at 2. On her first day in office, the current Governor of New York directed the New York State Department of Health to implement a universal mask requirement in all schools as determined necessary at the discretion of the State Commissioner of Health, the Defendant in this matter. Id.

Consequently, on August 27, 2021, the Department of Health issued an Emergency Rule that required any person over age two, and medically able to tolerate wearing a face mask, to wear such a mask “in certain settings as determined by the Commissioner as issued in a determination, which may include schools, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings.” Morne Dec., Ex. A at 1. The same day, Defendant, the Commissioner of the Department of Health, issued a determination (together with the Department of Health's Emergency Rule referred to as the “mask mandate”) requiring face coverings or masks in healthcare settings, adult care facilities, P-12 school settings, correctional facilities and detention centers, homeless shelters, and on public transport. Id., Ex. I (“Commissioner's Declaration”) at 2-3.

C. Procedural History

On September 20, 2021, Plaintiffs, who are children enrolled in New York State schools and the parents of those children, filed their Complaint in this matter arguing that Defendant's mask mandate inhibits their right to free speech, is preempted by federal law, and improperly infringes on the parents' rights to make decisions concerning the care of their children. See generally Complaint. On September 27, 2021, Plaintiffs filed the present motion requesting a preliminary injunction, a temporary restraining order to be put in place pending the hearing on the preliminary injunction, and for expedited discovery in advance of the hearing. See Dkt. No. 4. To support their request for a temporary restraining order, Plaintiffs argue they are likely to succeed in showing the mask mandates violates their First Amendment rights^[7], and thus they are suffering irreparable injury while the mandate is in place. See Pls.' Mem. at 2-3.

III. LEGAL STANDARD

The standard that governs a request for a temporary restraining order is the same as that governing a request for a preliminary injunction. Stagliano v. Herkimer Cent. Sch. Dist., 151 F.Supp.3d 264, 272 (N.D.N.Y. 2015) (citing Local 1814, Int'l Longshoremen's Ass'n, AFL-CIO v. N.Y. Shipping Ass'n, 965 F.2d 1224, 1228 (2d Cir. 1992)). Where “a preliminary injunction will affect government action taken in the public interest pursuant to a statute or regulatory scheme, the moving party must demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, ^[8] and (3) public interest weighing in favor of granting the injunction.” Hopkins Hawley LLC v. Cuomo, 518 F.Supp.3d 705, 713 (S.D.N.Y. 2021) (quoting Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016))

IV. DISCUSSION

A. Plaintiffs Have Not Established Irreparable Harm Absent a Temporary Restraining Order

Courts often assume irreparable harm is present if a party moving for a temporary restraining order establishes they are likely to succeed in showing a government action violates their First Amendment rights. See Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 349 (2d Cir. 2003) (“Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed.”); Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000) (“Violations of the First Amendment are presumed irreparable.”). Accordingly, Plaintiffs argue they will suffer irreparable harm absent a temporary restraining order because the mask mandate impermissibly infringes their First Amendment rights. Pls.' Mem. at 3. However, as discussed below, Plaintiffs have failed to demonstrate it is likely they will prevail in showing the mask mandate has violated their First Amendment rights, thus, they have likewise failed to establish an irreparable harm.

B. Plaintiffs Have Not Established a Likelihood of Success on the Merits

To establish a constitutional violation, Plaintiffs attempt to show that (1) the mask mandate incidentally burdens their exercise of First Amendment rights, thus intermediate scrutiny is warranted, and, (2) the mandate fails intermediate scrutiny. Plaintiffs have not shown a likelihood of success on either count.

1. The Mask Mandate Does Not Incidentally Burden Plaintiffs' First Amendment Rights

Plaintiffs claim that masks conceal students' facial expressions, prevent them from seeing the facial expressions of their teachers and other students, and cause both students and teachers to alter their vocal tone and volume when speaking in school. See Pls.' Mem. at 4. Plaintiffs then argue that facial expressions and vocal modulation are expressive conduct protected by the First Amendment. Id. Thus, Plaintiffs reason, because the mandate requires students to wear masksm the mandate incidentally burdens their First Amendment rights and warrants intermediate scrutiny pursuant to United States v. O'Brien, 391 U.S. 367 (1968). Id. at 4-6.

To begin, the Court is skeptical that the mandate in fact forces Plaintiffs to conceal their facial expressions. The CDC and FDA have approved facemasks that are clear and allow facial expressions to be seen.^[9] These...