U.S. District Court Rejects Parents’ Request to

Enjoin New Jersey School Mask Mandate

As most NJASA members are aware, the reopening of schools for the 2021-22 school year has come with numerous challenges including navigating mandated COVID-19 vaccinations and/or testing, and numerous conflicts regarding mask-wearing in schools.  In August 2021, Governor Phil Murphy issued two Executive Orders: EO 251,[1] which required masks be worn in schools, and EO 253,[2] which clarified that it is mandatory to wear masks in schools, and that any medical exemption would be permitted only with documentation provided by a medical professional.

At the start of the school year, numerous NJASA members and their boards were inundated by parents and other members of the public who resisted wearing masks when on school grounds and at board meetings.  Further, numerous NJASA members have reported conflicts, created by parents who resisted having their children wear masks in school, and by the students themselves.  Born out of those conflicts was a lawsuit filed in federal court against Governor Murphy, Commissioner of Education Allen-McMillan, and Commissioner of Health Persichilli (hereinafter collectively the “State”). 

In Stepien, et als. v. Murphy,[3] a group consisting of numerous parents (hereinafter “plaintiffs”) filed suit in the United States District Court for the District of New Jersey, seeking an injunction vacating the Executive Orders to the extent they require students, staff, and visitors to schools in New Jersey to wear masks while inside school buildings.[4] 

In a well-reasoned and thorough decision, U.S. District Court Judge Kevin McNulty reviewed and rejected the plaintiffs’ arguments that the mask mandate violated the Equal Protection Clause of the 14^th Amendment of the United States Constitution, as well as the First Amendment rights to freedom of speech.  

The State Did Not Violate the Equal Protection Clause

As to the Equal Protection argument, the court noted that the U.S. Supreme Court has defined the Equal Protection Clause as “a direction that all persons similarly situated should be treated alike.”[5] The court noted that the plaintiffs did not identify any group of students who are treated differently under the EOs. The essence of plaintiffs’ objections was that individuals on school campuses are required to wear masks, while they are not required to wear masks in other settings.[6] However, the court noted that the EOs require masks of all students at all schools, and there were no requirements that students wear masks at some schools and not others. In addition, the court found that in-school policies are not comparable to out-of-school policies.   

In rejecting the plaintiffs’ Equal Protection argument, the court stated that “it is undisputed that masks help to reduce the spread of COVID-19 by blocking many of the virus-containing droplets expelled from the mouth and nose when breathing and speaking.”[7] Both the “CDC and the American Academy of Pediatrics (AAP) recommend universal masking in schools to reduce viral transmission during the school day.”[8]  Further, the court noted another effective way to reduce the transmission of COVID-19 would be to close schools and return to fully remote learning. However, the governor determined “the educational superiority of in-person learning justified the incremental risk of COVID transmission – provided that proper precautions, such as masking, were taken to inhibit the spread of disease.”[9] Significantly, the mask mandate is not designed solely to protect children; it also protects staff members, as well as older or immunocompromised family members with whom the children and staff may have contact. 

In summarizing its rejection of the plaintiffs’ Equal Protection argument, the court found that the state articulated multiple rational bases for this policy. It noted that the court’s task is to “identify a rational basis for the EOs, not to second-guess or usurp elected officials’ policy decisions regarding acceptable levels of risk or the tradeoffs between health concerns and other priorities.”[10]

The State Did Not Violate Students’ First Amendment Rights

In reviewing plaintiffs’ argument that the mask mandate violates students’ First Amendment rights, the court noted that the U.S. Supreme Court has held that, while students do enjoy First Amendment protections, those rights, especially on campus, are narrower than the rights of adults.  Therefore, when conducting a First Amendment analysis related to students, courts must recognize the “special characteristics of the school environment.” [11]

The plaintiffs argued that the EOs violate the students’ rights to free speech because masks interfere with the physical ability to speak, “muffling the voice, ‘muzzling’ schoolchildren and obscuring facial expressions in a way that impairs their participation in the educative process.”[12] Plaintiffs further argued that the masks interfere with “personal intercommunication among students” as discussed by the U.S. Supreme Court.[13] However, the court found that “[t]here is no support in the case law for the proposition that students have a First Amendment right to speak with one another purely socially, with no ‘muffling’ or other restrictions, while at school.”[14]  While in school, some student speech can be suppressed such as inappropriate speech in classrooms, and also in disciplinary actions such as in detention, where students are unable to communicate with friends.

The court ultimately found that, while the EOs may impinge upon the physical act of speaking to some extent, the EOs make no distinctions based upon messages or viewpoints to be expressed by the students. Therefore, the court found the EOs were content-neutral. It was clear that they served a substantial government interest, they were narrowly tailored to serve that interest, and they left open ample alternative channels for communication. As such, the EOs were a legitimate use of state power, and did not violate the students’ constitutional rights to free speech. In fact, the court explicitly stated that “students, when masked, nevertheless remain free to talk, gesticulate, and otherwise make themselves understood: to be ‘muffled’ is not to be gagged…. The EOs … do not deprive them of their ability to communicate, generally; they only make it marginally more difficult to communicate face-to-face while in school.”[15]

Finally, the court noted that state and local governments have had extraordinary powers to stop the spread of deadly disease. As such, the EOs here “are well within the acceptable scope of state power to address a lethal pandemic. They do not violate the constitutional rights of New Jersey’s residents.”[16]  As such, the court found that plaintiffs are unlikely to succeed on the merits, and therefore, the court denied their motion for a preliminary injunction.

Conclusion

The United States District Court has determined that Executive Orders 251 and 253 are neutral in their application and narrowly tailored to address an important government interest – protecting against further spread of COVID-19. As such, the parents’ attempts to obtain an injunction to halt the implementation of the EOs has failed. As a result, school districts should continue to enforce the mask mandate contained in the EOs and ensure they are followed. While the EOs are scheduled to expire on January 11, 2022, it is possible that the governor will extend the mask mandate further to stem the increasing spread of COVID-19 in New Jersey. School administrators who face challenges with parents and students who resist following the EOs should contact the board attorney for specific advice and assistance.

[1]  August 6, 2021.

[2]  August 23, 2021.

[3]  Civ. No. 21-CV-13271 (KM)(JSA)(Slip. Op. December 7, 2021).

[4]  Slip op. at 1.

[5]  Slip op. at 5, citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).

[6]  Slip op. at 6.

[7]  Id.

[8]  Id.

[9]  Id. at 7.

[10] Id. at 8.

[11] Id. at 9, citing Mahanoy Area Sch. Dist. v. B.L., 141 S.Ct. 2038, 2044 (2021)(other citations omitted).

[12] Id. at 10. 

[13] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[14] Stepien, slip op. at 11.

[15] Id. at 13.

[16] Id.