Judge to anti-mask parents: Constitution doesn't allow you to set school policy

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REUTERS/Jonathan Ernst

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  • Nevada judge finds school mask mandate violates no constitutional rights
  • Parents posited that due process allowed them to participate and that mandate not science-based
  • Parents will appeal the decision, says their counsel

(Reuters) - A federal judge has rejected a lawsuit by two Nevada parents challenging the state's mandate that students in public schools in large counties wear masks for instruction and other indoor activities.

U.S. District Judge Jennifer Dorsey on Wednesday denied the parents' bid for a preliminary order blocking the mandate, finding they failed to explain how their constitutional rights were violated.

"Our office has been and will continue to be the first line of defense between our health experts and those who wish to peddle debunked, fear-mongering arguments in the court of law," Nevada Attorney General Aaron Ford, whose office defended the mandate, said in a statement.

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Sigal Chattah of Chattah Law Group, a lawyer for the parents, said her clients have already filed a notice of appeal.

"It's unfortunate that issues of science and public health and safety have become so politicized, that judges have become political advocates instead of arbiters of justice," she said.

Parents Monica Branch-Noto and Tiffany Paulson sued the state and the school district of Clark County, which includes Las Vegas, on behalf of their children in August.

They claimed that the mandate violated their fundamental right to make medical decisions for their children and to have a hand in setting the policy, which they said followed from the right to due process in the U.S. Constitution's Fifth Amendment.

"But these perceived wrongs don't violate any constitutional rights," Dorsey wrote Wednesday. "The Constitution does not require an opportunity to participate in the decision-making process for such broadly applicable policies, and the fundamental right to parent does not include the prerogative to dictate school health and safety policies."

The parents also said that the mandate violated the Constitution's equal protection clause because it applied only to counties with populations of 100,000 people or more. Dorsey, however, said the state had posited a rational basis for the difference - that larger districts are both more prone to outbreaks and more able to enforce mask mandates - which the parents had not rebutted.

She also rejected the parents' argument that the mandate was not supported by science, saying that, while the parents and the state disagreed about the effectiveness of masks, it was "well settled that the choice between these opposing theories rests soundly in the prerogative of the policymakers, not the courts."

School mask mandates have been the subject of controversy and litigation around the country, with some Republican-led states seeking to ban districts from imposing them. A federal judge last month struck down such a ban in Texas.

The case is Branch-Noto et al v. Sisolak, U.S. District Court, District of Nevada, No. 2:21-cv-01507.

For plaintiffs: Sigal Chattah of Chattah Law Group and Joey Gilbert of Joey Gilbert Law

For the state: Deputy Solicitor General Craig Newby

(NOTE: This article has been updated with a comment from plaintiffs' counsel.)

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.