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Federal judge rejects school mask mandate challenge

Updated December 23, 2021 - 11:25 am

A federal judge in Las Vegas on Wednesday dismissed a challenge to the Clark County’s School District’s student mask requirement, rejecting claims by parents of two students that the pandemic-driven mandate and its enactment violated their constitutional rights.

U.S. District Judge Jennifer Dorsey’s ruling unsparingly denies the plaintiff’s various claims, citing precedents from U.S. Supreme Court rulings and other court jurisdictions both contemporaneous with the current COVID-19 pandemic and dating as far back as a 1905 Massachusetts case.

She denied the parents’ request for a preliminary injunction, finding that they had shown no legal basis for their constitutional claims, and further declined to exercise jurisdiction over their state law claims.

Finding that the complaint “lacks any viable legal theory to support a plausible federal claim for relief, this case must be dismissed,” Dorsey wrote.

Claiming constitutional violations

Plaintiffs, in a lawsuit filed in August, took aim at the school district, Gov. Steve Sisolak and Attorney General Aaron Ford over the district’s mask policy for students, enacted in July, and two of the governor’s pandemic emergency directives requiring use of masks indoors, including in schools.

Citing the Ninth and Fourteenth Amendments, plaintiffs argued that forcing their children to wear masks in school violated their rights as parents, including the right to make medical choices for their children, and said they were unconstitutionally excluded from “the decision-making medical process” behind the mask policies.

“But these perceived wrongs don’t violate any constitutional rights,” Dorsey wrote, noting that the Constitution “does not require an opportunity to participate in the decision-making process for such broadly applicable policies.” Parents’ rights, she said, do not “include the prerogative to dictate school health and safety policies.”

Her 22-page ruling also dismisses plaintiffs’ claim that there is no scientific evidence to support mask mandates, noting plaintiffs’ counsel in court “denied the existence of a pandemic, though the World Health Organization, the White House, and the United States Supreme Court have all consistently acknowledged it.”

Claims ‘unsupported by case law’

The district’s mask policy allowed parents to enroll their children in online distance-learning programs as an alternative to in-person instruction and also provided accommodation for students who could not safely wear a mask. But despite such ”reasonable alternatives,” plaintiffs’ counsel confirmed in court “that they chose to send their children to schools subject to the policy and did not seek any accommodations,” Dorsey wrote. “And counsel largely conceded that plaintiffs federal claims are unsupported by any case law.”

Co-counsel for the plaintiffs were Reno attorney Joey Gilbert, who is running for the Republican nomination for governor, and Sigal Chattah, a Republican candidate for attorney general. Gilbert Wednesday night did not return a phone call seeking comment. Chattah wrote in a tweet that the case was being appealed.

Dorsey compared the state mask mandate to state laws on seat belt and helmet use, smoking bans, and shirt-and shoes-requirements in public places. She found similarities and precedents in the 1905 Massachusetts case, where the Supreme Court upheld the state’s smallpox vaccine mandate, and in COVID-era mask mandate challenges arising in California and elsewhere that courts similarly rejected.

The prior rulings “compel the conclusion that the right to parent as one sees fit does not entitle parents to undermine local public-health efforts during a global pandemic by refusing to have their children comply with a school mask requirement, particularly when they’ve affirmatively chosen that option over the maskless, distance-learning alternative that (the Clark County Schools) also made available,” Dorsey wrote.

Ford praised the ruling, saying in a statement that his office “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.”

Contact Capital Bureau reporter Bill Dentzer at bdentzer@reviewjournal.com. Follow @DentzerNews on Twitter.

Branch-Noto et al v. Sisolak et al by Las Vegas Review-Journal on Scribd

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