Government lawyers pushed back Tuesday against a private Williamsville school's court effort to be exempted from public health orders mandating masks be worn by students and staff.
The premise behind Christian Central Academy's case is that it's "somehow outside the jurisdiction of any and all public health authorities," said Jeremy Toth, first assistant Erie County attorney.
The school said it relied on assurances from former Gov. Andrew Cuomo that individual schools would be able to develop and implement their own masking policies for the 2021-22 school year.
The county health commissioner's order requiring face masks for everyone entering schools mirrors Centers for Disease Control and Prevention guidance, he said.
"We are not out on a limb here," Toth told Justice E. Jeannette Ogden at a State Supreme Court hearing. "We're following recognized good practices inside a school building where most kids are not vaccinated."
Ogden rejected the school's request for a preliminary injunction against enforcement of the mask mandate. She set an Oct. 1 hearing for further arguments and will then decide whether to approve or dismiss the school's petition.
Key among the new school reopening mandates is that everyone has to wear a mask inside schools and on buses.
Attorney Todd Aldinger, who represents the pre-kindergarten through 12th-grade school, said the state and county health departments imposed a regulation that exceeds their authority because "there is no statutory authority for this." Their regulations require an act of the New York State Legislature, he said.
The school isn't contending "the state can't do it," Aldinger said. "But the Legislature has to do it when it comes to a private school."
On Aug. 27, the state Department of Health enacted an emergency regulation giving the state health commissioner the discretion to make determinations on masking, Assistant Attorney General Ryan Belka said.
The state's public health law allows the commissioner to “deal with any matters affecting the security of life or health or the preservation and improvement of public health," Belka said in court papers. "Certainly, securing a safe environment in which to conduct in-person learning during a once-in-a-lifetime pandemic fits within such broad authority."
While the county Health Department has no authority to mandate curriculum or teacher-student ratio, it does have the authority to regulate public health including within a private school, Toth said.
Erie County Department of Health officials are still working on guidance for schools this fall, though all students and staff in Buffalo Public Schools will be forced to don a mask upon returning next month.
"In Erie County, we now appear to be in the midst of a fourth wave and, in many ways, this is the worst wave," he said in court papers. "This wave is largely the result of the personal choices of thousands of community members who both refuse to get vaccinated and refuse to take any responsibility for their own behavior or acknowledge how that behavior impacts others. Instead, we are faced with another lawsuit filled with dubious legal claims and spurious medical conclusions."
In an affidavit, Erie County Health Commissioner Dr. Gale Burstein said only 47% of the county's 12- to 15-year-olds have completed their Covid-19 vaccine series.
Between Sept. 1 and Monday, there have been 250-plus Covid-19 positive cases among school populations, she said. It appears at least 85 of those testing positive attended school while they were almost certainly infectious, she added.
The Erie County Health Department told school leaders Thursday it would issue guidance as soon as possible.
"These numbers are concerning given that school has only just begun," Burstein said.
Dozens of parents chose to enroll their children at Christian Central Academy because of its parent-choice masking policy, the school said. The school spent more than $200,000 to implement alternatives to masking, including hiring five additional teachers, at a cost of more than $175,000. That enabled the school to reduce its class size to 12 to 13 students per class, affording 6 feet of social distancing to each student in each classroom. The school fears many parents will pull their children out of the school because of the mask mandate, and the loss of tuition would be financially devastating, according to the school treasurer.
Toth, the county lawyer, said "it seems quite preposterous that any institution would make inflexible plans in the midst of global pandemic that changes every month."