‘Parents were ridiculed’: Attorney in suit over school mask mandate explains historic win, upcoming hearings

PROVIDENCE – As a result of parents’ lawsuit questioning both the legality and the effect of mandated school masking, the State of Rhode Island has agreed to hold a number of public hearings regarding the issue to obtain residents’ concerns and to, generally, gain the public’s take on the issue. Defendants named were Gov. Dan McKee and Nicole Alexander-Scott, director of the Rhode Island Department of Health.

The lawsuit was officially filed in September of 2021, after McKee issued executive orders mandating masks for anyone entering a public school. Executive Order 21-87 required public schools in the state “to abide by a universal indoor masking protocol developed by the Rhode Island Department of Health.”

“With the tireless assistance of our expert, Dr. Andrew Bostom, we amassed irrefutable proof that forced masking is neither safe nor effective,” explained Gregory Piccirelli, the plaintiffs’ lawyer in the case, in a release sent to NRI NOW. “While the Court agreed with us and ruled that children were suffering ‘irreparable harm’ from this mask mandate, it was reluctant to rule against the public health officials who asserted, with the flimsiest of evidence, that ‘masks work.’ The evidence today is incontrovertible; forced masking of school children does not work and is in fact potentially very harmful to children.”

Plaintiffs include Richard Southwell, Jonathan Barrett, Julie and Paul McKenney, Aimee Sayers, Cheryl and Zachary Greathouse, Scott Belford, Daniel Medeiros, Melissa Fitzgerald, and Thomas Boylan, of Glocester, along with North Smithfield residents Danielle Ferguson and Lenox Ramos, and Shanley Swain of Burrillville, along with resident/parents of 11 other towns, from Westerly to Smithfield.

In the lawsuit, parents said they were concerned about their children’s physical and emotional well-being when required to wear masks 6-7 hours per day, adding that no studies had been done to determine the effectiveness of mask mandates in school and whether harm caused by such mask mandates is outweighed by any potential benefit.

“The Plaintiffs’ goal in this litigation has been to have RIDOH do what it should have done three years ago: hold public hearings through the normal regulatory process on whether masking in schools is efficacious and safe,” said Piccirelli. “After eight months of mediation – delays of which were caused in part by the departure of a number of lawyers assigned to this case from the offices of the (Attorney General) and RIDOH – we are now happy to report a settlement with the state which commits RIDOH to do just that.”

“In fact, the weight of scientific evidence is that masking children in schools has little to no effect on the spread of COVID-19,” stated the lawsuit in its argument against the mandate.

Additionally, it stated that the legitimate concerns of parents were often dismissed or worse, ridiculed.

“They faced intense criticism and scorn for demanding openness in government decision making,” Piccirelli said.  “They challenged not only the legality of such mandates, but the woeful lack of scientific evidence that such masking worked and was not harmful to their children.”

Southwell explained in the lawsuit that he had a 12-year-old son,  a 7^th grader, who had been homeschooled as a 6^th grader due to the COVID-19 restrictions in place. They were poised to send him back to school the following year, when the state of Rhode Island put an universal masking mandate in place. As a result, they withdrew his application to return to public schooling.

“It was very difficult to explain the decision to our son,” Southwell said in his statement in the lawsuit. “He’s aware that the world is kind of a mess right now, and he took the news well. The disappointment was written all over his face though. All he wants is to go back to school with his friends and live a normal, 12-year-old life. Not a big ask at all. How many more school years are we going to ruin for him and his classmates?”

Other parents told stories about the negative effects on their children on multiple levels, from learning, to previously happy social interactions, and classroom decorum. Barrett said the mask mandate took an emotional toll on his daughter, a 6^th grader. Distance learning worked for awhile, he said in his deposition, but eventually it began to take its toll.

“Distance learning, while not optimal, at least allowed her to breathe freely,” he stated.  “Still, the loneliness and isolation of distance learning took an emotional toll on my daughter that was observable in attitude and increased moodiness confirmed by her pediatrician as being beyond what would be expected for her age and maturity.”

The mask mandate caused other problems and brought up other questions, as well.

“My child is 10-years-old and in grade 5,” said Fitzgerald.  “My child has frequently complained of headaches and being ‘exhausted,’ after school, which never happened before the mask wearing. She never has this problem on the weekends when we are mask free wherever we go. This is a huge red flag to me. She has lost her desire to be in school and be the happy student she was until last year.”

“We have an 11 year son who was entering into 6th grade this school year,” noted Burrillville’s Swain. “He was very excited to go and see his friends and make new ones. Starting a new journey into middle school was something they all talked about over the summer, he joined band and cross country, school was going to be normal and fun. Unfortunately, I anticipated this mandate and the variant, because before last year ended the covid fear mongering variant talk reared its head. A group of moms in Burrillville got together and fought all summer long to ensure mask choice for the upcoming year. We attended town hall and school committee meetings and provided fact-based evidence and personal stories, and we won. Then McKee pulled the rug out just in the nick of time for everyone to say sorry out of our hands. It has been frustrating and exhausting.”

Ferguson of North Smithfield questioned the effectiveness and practicality of mask mandates, which were limited to the school environment. Outside of school was a totally different story, she said.

“I have a 15-year-old son in North Smithfield High School,” Ferguson said in the deposition. “Last year, my family and I, amongst every American in the United States, did what was necessary to get through the year 2020 with the understanding that what we were doing then, would help us to discover more about Covid 19, stop the spread and give everyone an opportunity to keep their families safe. When it comes to my son, he and his group of friends have attended numerous large gatherings including sleepovers with 10+ kids, and nobody has had to be quarantined for doing so. The kids, as well as everyone else in our state, have been able to go to restaurants, concert venues, parties, clubs, sports events, Walmart, etc., where there are large groupings of people in every one of those settings, and everyone is healthy. They go to school, and they have to mask up.”

Additionally, the lawsuit contended that McKee acted outside his authority in imposing the mandate and asked that it be put on hold.

“The governor has no constitutional authority to issue an executive order,” the suit stated. “The courts of this state have consistently held that the only power that the governor has pursuant to the Rhode Island Constitution is to execute valid laws as enacted by the General Assembly. The governor has no inherent police power under Rhode Island law, and is delegated only such powers by statute 93. Likewise, there is nothing in Title 23, Chapter 8, which could give the power to the governor to issue an executive order mandating mask wearing.”

The school mask mandate was lifted in March, 2022, but litigation continued.

“After months of tedious legal wrangling over the parents’ discovery demands, the state has agreed to hold public hearings on the efficacy of masking, among other things,” noted Gaddis Barrett in a post on social media. “This is notable because to our knowledge, this is the first time there will be a public regulatory process in the costs/risks vs benefits of masking in K-12.”

Gaddis Barrett said the hearings are expected to be held in late winter/early spring, and will require state officials to actually prove that masking children does more good than harm.

“This means the parents get to submit their own experts and the state will have to defeat them before they ever order another mask on a child again,” Gaddis Barrett noted. “Our parents are confident that when the hearing is held, we will be able to show beyond any reasonable doubt that masking children causes irreparable harm.”

The settlement was agreed to before Superior Court Justice Jeffrey Lanphear on Tuesday, Dec. 12, and is in three parts explained Piccirelli. First, within 30 days of the entry of a dismissal stipulation – which plaintiffs anticipate will happen by the end of the year – RIDOH will provide a Notice of Public Hearing, in accordance with the normal regulatory process under the Administrative Procedures Act.

“This hearing will consider whether, in the future, forced masking in a public school setting is appropriate,” said the attorney. “We intend to provide public comment from experts across the country that such mandatory masking does not work, and in fact is often harmful.”

Parents and members of the public will also be allowed to attend and make comments.

RIDOH will then conduct and publish a cost-benefit analysis of the forced masking of schoolchildren, according to terms of a deal reached between the parties.

“Despite numerous requests from the public, this is something that state public health officials have steadfastly refused to do until now,” said Piccirelli.

Second, RIDOH will clarify in a memo to all public schools that there is not now and will not be a “mask mandate,” for students, even those who test positive for COVID or otherwise exhibit COVID-like symptoms or have had exposure to COVID, according to the attorney.

In exchange for the concessions, the parents have agreed to dismiss their lawsuit.

“We believe that this may be the first commitment by a public health agency in this country to conduct such a hearing and analysis,” Piccirelli said. “We are also confident that once the evidence is presented, RIDOH will have to concede that mandatory mask mandates in schools should never happen again.”