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Families in lawsuits want to stop school mask policies

Associated Press
Published: 9/11/2021 10:04:31 AM

Dozens of families have challenged mask-wearing policies in New Hampshire school districts during the coronavirus pandemic, with two cases in court Friday calling for injunctions to stop enforcing them.

A lawyer representing families in the Epping, Londonderry and Timberlane school districts argued at a Rockingham County Superior Court hearing that mask mandates violate the parents’ rights to make health care and medical decisions for their children, and they are illegal restraints under a state law that limits the use of child restraint practices in school.

“Their children have difficulty breathing with these masks on,” attorney Robert Fojo said. “It’s causing them to be afraid; they suffer anxiety and stress as a result of wearing these masks, experiencing lightheadedness and trouble concentrating.

“Masks irritate their skin, cause acne. It exacerbates already inherent problems that they have, such as asthma, difficulty with speech, learning-related disabilities, and obviously a distraction,” Fojo said. “They inhibit social interaction, which is what these children should be doing in school.”

Attorneys for the school districts have argued for the case to be dismissed, saying the districts have been following a “tool kit” for schools from the state Department of Health and Human Services that recommends mask-wearing. They also said a mask mandate is not a violation of the restraint law.

The focus of that statute is “physical conduct by school staff directed to as behavioral interventions,” said attorney Diane Gorrow, representing the Londonderry and Epping districts. “It is not geared toward policy that requires students to put on masks.”

She said Londonderry currently has 18 active COVID-19 cases in the district. “The elementary school has what’s classified as an outbreak under DHHS standards, so masks are being required for 14 days” at the school, Gorrow said. Some students at the middle and high schools also are wearing masks because of positive cases. Londonderry does not have a universal mask mandate, she said.

A similar mask challenge also has been filed on behalf of a school district that includes schools in Exeter, Stratham, Newfields, Brentwood, Kensington and East Kingston. Two other similar lawsuits have been dismissed.

Legislative access

The dispute over remote access to New Hampshire House sessions was back in court Friday, and a federal appeals court is reconsidering whether it deserves further attention.

Seven Democratic lawmakers who are at higher risk of serious complications from COVID-19 sued Republican Speaker Sherman Packard last year, arguing that holding in-person sessions without a remote option violates the Americans with Disabilities Act and the state and federal constitutions.

A federal judge in Concord rejected their request for a preliminary order in February, but the Boston-based 1st Circuit of Appeals sent the case back in April to determine if the plaintiffs qualify as persons with disabilities and whether changing circumstances, such as the availability of vaccines, may moot their claims.

But at a hearing Friday, the Democrats’ lawyer, Israel Piedra, said the concerns remain relevant, particularly since the 400-member House plans to return to its crowded State House chamber this fall and winter instead of spreading out in an athletic complex as it did last spring and summer.

“This is an extraordinary situation. We’re talking about disabled state legislators, some with stage four cancer and compromised immune systems, being forced to either A, put their lives at risk by going into a room with 400 individuals, many of whom are unmasked and unvaccinated, or B, forfeiting their right to vote on legislation and leaving thousands of Granite Staters without a voice in the Legislature,” he told the Boston judges considering Packard’s appeal of their April ruling.

Assistant Attorney General Anthony Galdieri, representing Packard, argued that implementing neutral rules to govern debate and voting was a legislative act for which the speaker can’t be sued.

While the 24-member Senate held numerous remote sessions, as did individual House committees, providing remote access to full House sessions would be “extraordinarily problematic,” he said.

He pushed back when judges pointed out that only a smaller number of lawmakers are seeking such access.

“We know that others might who want to request it,” he said. “The technology has to be scalable, and we’d have to adjudicate all these individual cases, to the hindrance of the legislative process.”

The judges took the case under advisement.

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