Part Of NJ Students' Anti-Mask Lawsuit Denied By U.S. Court

MIDDLETOWN, NJ — A federal judge has denied a request from 16 New Jersey schoolchildren and their parents for a temporary restraining order against Gov. Phil Murphy's mask mandate in K-12 schools. However, the judge allowed the anti-mask lawsuit to proceed in the courts, and a final hearing is set for early October.

U.S. District Judge Kevin McNulty issued his ruling Thursday. He said that he could not find Murphy's mask order to be "irrational" and that the state of New Jersey was only relying on advice from the Centers for Disease Control and Prevention.

“For the purpose of a temporary restraining order, I cannot find that this is an irrational classification. And I find that the state could reasonably rely on the guidance from CDC and other places to promulgate such a rule,” McNulty in his ruling. "I'm not seeing a clear legal entitlement here."

Bruce Afran, a Princeton-based lawyer, represents the 16 New Jersey schoolkids and their families.

As Patch previously reported, he filed the lawsuit July 9 against Murphy, state Commissioner of Education Angelica Allen-McMillan and New Jersey's Department of Health Commissioner Judy Perischilli.

Afran said he does not view the Sept. 9 decision as a setback.

"That was just the temporary restraining order that was denied. And he denied it because the law is not absolutely clear and for TROs, you need the law to be clear," Afran told Patch. "We are having another hearing with Judge McNulty today in fact [Wednesday, Sept. 15], and we are scheduled to have a final hearing on this matter in about three weeks."

McNulty did allow the lawsuit to move forward in the U.S. court system. However, the judge said he thinks the suit will be "unlikely for success" as Afran tries to argue it on the grounds that the students' First Amendment rights were violated.

"What he said was the law was not clear," countered Afran. "He said clearly several times he has not decided on this issue and he agrees there are First Amendment issues with mask-wearing."

In the case, Afran argues that the forced wearing of masks, 6-foot social distancing, cafeteria rules and plexiglass barriers — all of which were implemented last year in New Jersey schools — violate the First, Fifth and 14th Amendments to the U.S. Constitution. Those three amendments were written to ensure freedom of American citizens. He also said children's right to privacy was invaded by having to wear the masks.

You can watch the two-hour legal hearing last Thursday before Judge McNulty.

Two Middletown South High School students in the suit

Two students at Middletown High School South were part of the lawsuit, which you can read.

The Middletown teens joined 14 other New Jersey schoolchildren, ranging from elementary students to high school seniors, as plaintiffs.

The Middletown student is Gabe McMahon, 18, who is a senior this year at South. The other student is a sophomore at Middletown South, and is unnamed because he or she is a minor.

McMahon was the only plaintiff who was 18 when the suit was filed, so he was the only student publicly named. Previously, McMahon declined to speak to Patch. His other co-plaintiffs were named by their parents.

Murphy issued the executive order in August requiring masks for students and staff in schools at the start of the 2021-22 school year due to increasing spread of the coronavirus in New Jersey and the rising prevalence of the delta variant. Read more: NJ K-12 Students Must Wear Masks This Fall, Gov. Murphy Says

Many districts in New Jersey — including Middletown, Holmdel, Brick, Wall Township, Toms River, Wayne in North Jersey, Barnegat and Manasquan — sent formal letters to Murphy after he issued the order, asking him to drop the statewide school mask mandate or leave it up to the individual districts to decide.

The Middletown Board of Education has been the most aggressive fighting the K-12 mask mandate. It tried to pass a policy that would have allowed students to submit a note from either themselves or their parents, saying mask wearing inhibits their health. When Murphy found out about this, he threatened to "immediately sue" the Middletown school district, and the school board backed off the idea.

The Middletown Board of Education now accepts a note from a medical professional to exempt mask-wearing, although it does not have to be from a doctor.

Brick, Toms River, Lacey Township and Marlboro also started the school year last week with masks optional due to the heat.

16 children from across New Jersey joined the lawsuit

The 16 schoolchildren in the suit represent a wide range of ages and a variety of New Jersey towns: two from Middletown High School South, a third grader in the River Vale school district, three siblings in the Mahwah school district, two teen siblings at Barnegat High School, two children in West Orange, a Bordentown elementary school student, Jackson High School, two students at Old Bridge High School, a student at John P. Stevens High School in Edison and a student in the Sparta school district in Sussex County.

A GoFundMe was started to pay the legal fees for the case. So far, it has raised $60,000.

"In the past year, New Jersey schoolchildren have been not only forced to wear a mask. They have been prevented from going within six feet of their teacher or another classmate," said Afran in July.

"They are forced to sit just two students at a lunch table and they must sit across from each other, not next to each other. They have had Plexiglass put up around their desks, and told not to leave their desk area. They are chastised daily or given disciplinary write-ups if their mask falls down. They no longer have the ability to socialize with other students."

"Additionally, all of this was done without parental consent," he added.

Prior: Middletown Students Join Anti-Mask Lawsuit In NJ Schools (July 15)

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