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School mask mandate could fall with rest of executive order if found unconstitutional, despite Hochul efforts to prove otherwise

What’s next for New York’s mask mandate in schools? Attorneys say it comes down to how the state’s highest courts rule on it.

Governor Kathy Hochul says the mask mandate imposed on private businesses, covering all public indoor spaces is different than the one covering schools.

Last week an appeals court granted a temporary stay for the New York State mask mandate. Hours earlier, a Supreme Court justice ruled it was unconstitutional.

State health officials, as well as Governor Hochul, have said that they’re confident the court will rule in their favor. At the end of the week, the Governor extended the potentially unconstitutional mask mandate through February 10.

The mask mandate will be re-evaluated every two weeks if it holds up in court. As for defining ‘why’ it would continue for another 10 days, as COVID-19 infections continued to drop, Hochul said New York wasn’t ready.

Will New York State defend mask mandate in schools even if it’s found unconstitutional?

However, Albany Times Union reporting seems to suggest that the state is preparing for a situation where they need to enforce a mask mandate in schools- even if the mandate is deemed unconstitutional in public spaces at-large.

“Again, as the (schools’) guidance is distinct from the regulation, it is and will continue to be in effect and would not be impacted by the current case,” explained Samantha Fuld, a spokeswoman for the health department.

Constitutionality of the mask mandate hinges on the lack of state legislature involvement. Last spring, the legislature stripped the power of then-Governor Andrew Cuomo, which allowed him to rule by executive order. Because of that move, it paved the way for this executive order to be challenged in court.

State health commissioners can effectively make rules around laws. But state agencies can only make rules that involve existing, legislatively approved law. The justice compared the current mask mandate to the Department of Motor Vehicles issuing rules to change speed limits on highways without the Legislature granting that move through legislation first.

Attorneys fighting the mask mandate say they’re one-in-the-same despite the ‘false narrative’ being presented by state officials, including the Hochul Administration.

“The truth is that if our victory is upheld, then the guidance falls as well, like dominoes. That is, when 10 NYCRR 2.60 falls, so does the school regulations,” Chad J. LaVeglia, the Long Island attorney who challenged the mask mandate in court.