‘To be ‘muffled’ is not to be gagged’: Judge upholds New Jersey’s school mask mandate

Students settle in at their desks

Students settle in at their desks for their first day of in-person learning in more than a year at H.B. Wilson Elementary School in Camden, N.J. (Emma Lee/WHYY)

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A federal judge in New Jersey has ruled that requiring children to wear masks in school does not violate their first amendment rights, nor is it discriminatory.

U.S. District Judge Kevin McNulty issued his decision late Tuesday in a case by a group of parents known as Free NJ Kids that sought to undo Gov. Phil Murphy’s executive order that was issued weeks before the new school year began. The order required anyone entering a school building in the Garden State to wear a mask.

Free NJ Kids had sought to block any mask mandate in school districts, but amended its lawsuit after Murphy issued his order. Bruce Afran, attorney for the group, argued that a mask mandate would violate a child’s first amendment rights.

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But McNulty disagreed.

“Many, this Court included, have experienced the need to repeat themselves or to speak more loudly and clearly to be understood through a mask,” he wrote.

The judge said students remain free to talk while wearing a mask and can make themselves understood. “To be ‘muffled’ is not to be gagged,” he added.

McNulty also noted the different ways, outside of a face-to-face conversation, students can communicate.

“They are free to text, tweet, Snapchat, and so on (hopefully not during class.)”

He said the governor’s order “may impinge upon the physical act of speaking,” but it doesn’t make any distinctions based on the message being expressed.

“The EOs are therefore content-neutral,” he wrote.

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McNulty also dismissed arguments that Murphy’s mandate violates the 14th Amendment. He wrote that the executive order dictating the mandate was done on a rational basis to limit the spread of COVID-19 and the delta variant.

“The Governor — accurately, as it turns out — anticipated that cases would increase in the months after he issued the EOs,” the judge wrote.

The judge also noted the government’s interest in opening schools for in-person learning, while keeping people safe from the COVID-19 pandemic. He also noted that in-person learning was superior to remote learning, adding that masks are the most effective way to reduce the spread of the new coronavirus.

“Another effective way to reduce COVID transmission in schools would be to close schools and return to remote learning, as was done earlier in the pandemic,” McNulty said. “Following the opinion of medical and child development experts, however, the governor determined that 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 the disease.”

McNulty also cited recommendations from the Centers for Disease Control and Prevention and the American Academy of Pediatrics recommending masks be worn in school and that the mandates were not just for children.

“Schools employ many teachers and staff members who are at higher risk of hospitalization and death from COVID and can contract it from children,” he wrote. “What is more, many students live with older or immunocompromised family members who are also at higher risk of serious illness from COVID.”

The judge also dismissed arguments that children are “at relatively low risk of the most serious health impacts from COVID” and said that the virus is still dangerous to children. He cited one study from the Peterson Center on Healthcare and the Kaiser Family Foundation that found COVID-19 was the sixth leading cause of death for children 5 to 14 years old.

The Murphy administration praised the ruling.

“Gov. Murphy believes that we must use the tools available to us to ensure that students can be in school safely and avoid closures of school facilities,” said spokeswoman Alyana Alfaro. “The court’s decision to allow continued masking requirements in schools will keep a valuable mitigation tool in place, ensuring that New Jersey students continue to have access to the in-person education they deserve.”

The decision was not a surprise to Afran, who said he plans to appeal the decision to the U.S. Court of Appeals.

“We do not believe there are adequate medical facts produced by the Governor to support an order masking only schoolchildren and no one else,” he said.

Saturdays just got more interesting.

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