UPDATE: Stay Granted, School Mask Mandate In Effect

HUDSON VALLEY, NY — An appellate court has issued a temporary stay keeping New York's mask mandate for schools in effect while the state appeals a Nassau County Supreme Court judge ruling late Monday that the mandate was unconstitutional.

Gov. Kathy Hochul commended the Attorney General for filing the appeal and applaud the Appellate Division, Second Department for granting an interim stay to keep the state's important masking regulations in place. She said the appellate court had "sided with common sense."

"As Governor, my top priority is protecting the people of this state. These measures are critical tools to prevent the spread of COVID-19, make schools and businesses safe, and save lives," she said in a statement. "We will not stop fighting to protect New Yorkers, and we are confident we will continue to prevail."

School districts had scrambled Tuesday morning after Judge Thomas Rademaker's ruling.

Some officials leaped at the chance to make masks optional in their districts; some said that the mandate was still in place while the state appealed; others recommended parents follow the state health department's subsequent instruction to follow the mask protocol while it all gets ironed out.

The confusion re-ignited exchanges among many New York residents on social media.

Some said any school official who required masks to be worn Tuesday was acting illegally and should be sued. Some said kids should stay masked as health officials recommend to protect themselves and others. Some said school officials deserved more than 12 hours to figure it out. Lots of arguments about the virus, the science and the government were recirculating.

On Facebook, Rockland County Executive Ed Day commended the Ossining school district for "a moderate approach that respects the rule of law, citing the article "Ossining Responds To Judge Rejection Of NY School Mask Mandate" on Patch. In response to questions, he pointed out that school districts are responsible for their own policies over which the county has no control. "If you have further questions about the policies that your school district is following, we urge you to contact them directly or the New York State Education Department. That is where you address this matter," he said.

In Clarkstown, parent Alan Sheynin told a community Facebook group that he dropped his daughters off at school with the judge's ruling in hand and without masks. After learning from the principal that they wouldn't be allowed in their classrooms, and having a conversation with the acting superintendent, "Obviously this was infuriating, however, the last thing I wanted to do was punish my daughters and thus I chose to stay composed, drive back to school with their masks, give them big hugs and tell them how brave they are and how proud I am of them and send them to their classrooms," he said.

He was angry about the district's note to parents Tuesday morning which said the state's appeal resulted in an automatic stay, calling it "an outright lie/fabrication."

"I am not a regular poster here or into social media much and am not looking for pats on the back, recognition, etc. I am posting this because we need to do this for our children," he said. "Enough is enough and if we want things to change we have strength in numbers."

SEE ALSO: Unmasked Students 'Reassigned' At Riverhead School, Police Called

Putnam County Executive MaryEllen Odell issued a news release decrying the confusion and disarray in school districts which left children, in some cases, to bear the brunt of what she called "a misguided state policy."

All of the districts in Putnam County had notified parents that the mask rule is still in place, she said. “I have heard reports, however, of children as young as 6 years old being forced to socially distance in class because their parents sent them to school without a mask,” Odell said. “That is heartbreaking and unacceptable.”

So what was actually going on? It turns out the issue is, of course, complicated.

According to Hofstra University Law Professor James Sample, Judge Rademaker ruled that the state Department of Health did not have the authority to issue the mandate. It was up to the state Legislature to issue the mandate, or to authorize the governor to do so, Rademaker ruled. Therefore, the mask mandate couldn't be enforced.

The state appealed the decision.

There are provisions in New York State law that say, under certain circumstances, the state is automatically granted a stay when it appeals a ruling. But these circumstances apparently did not qualify.

The state at 2 p.m. Tuesday requested a stay of the judge's ruling while it appeals. The stay was granted.

The argument that Hochul and her administration make is that the surge in coronavirus cases caused by the omicron variant was a new emergency. And since the Legislature was not in session at the time, the Department of Health had the authority to deal with emergency health situations and enact the mandate.

Which side is right will be up to an Appellate Court judge to decide.

Another issue at play in the ruling is timing. The state's mask mandate was set to expire on Feb. 1, Sample said.

"Given that there's really only one week left in the mandate as it is, I suspect that if the state seeks and receives a stay of the judge's order, then they will effectively be able to maintain the mandate for another week and run out the clock," said Sample.

Patch Editor Alex Costello contributed to this report.