ALBANY — A federal lawsuit has been filed against state health Commissioner Howard Zucker on behalf of five parents whose nine mask-wearing children have all allegedly suffered in one way or another from having to don state-mandated face coverings at school.

Jeff Thomas, who lives in Knox and has two children in private school, was a driving force behind the suit. Thomas is the administrator of the 17,800-member Facebook group Unmask New York School Children Now and spoke against mask-wearing at a contentious Guilderland School Board meeting on Aug. 10.

Before Kathy Hochul became governor in late August, Zucker had announced it was up to individual school districts to come up with their own rules.

The state Department of Health filed an emergency regulation, which became effective on Aug. 27, that requires all students, faculty, and staff of all public and private schools in the state to wear masks inside school buildings.

The state Department of Health “does not comment on pending litigation,” but did point The Enterprise to another federal mask-mandate lawsuit in which the state had recently filed court papers: Jane Doe and her minor child, Sarah Doe, vs. Zucker and Franklin Square Union Free School District, in Nassau County.

The Department of Health did not exceed its authority, it argued in the Franklin Square motion, because the emergency rule that allowed the department to institute the mandate “comes well within the broad powers that the Legislature has conferred on DOH to fulfill its critical mission in protecting public health.”

The legislature may “declare its policy in general terms by statute,” and “endow administrative agencies with the power and flexibility to fill in details and interstices and to make subsidiary policy choices consistent with the enabling legislation,” the state argued. 

In the case the Franklin Square mask mandate, the Department of Health, at the recommendation of the Public Health and Health Planning Council — which is an advisory body to the department  made up of academics, scientists, and physicians — created the emergency rule under the sections of the state’s Public Health Law that authorizes the commissioner “to supervise the reporting and control of disease, and to provide treatment for communicable diseases like COVID-19.”

The Sept. 20 lawsuit, in which Thomas is a plaintiff, filed in the United States District Court in Albany seeks to have the mask mandate declared unconstitutional; its enforcement stopped; a dollar in damages awarded to each of the plaintiffs; attorneys’ fees paid; and that the court “grant such other and different relief” it “deems just and proper.”

The complaint alleges, among other things, that:

— Masks are ineffective in preventing the spread of COVID-19.

Albany County Health Commissioner Dr. Elizabeth Whalen in answers to emailed questions from The Enterprise, responded, “YES,” masks are effective in preventing the spread of COVID-19.

She then provided The Enterprise with a link to a news story about 49 scientific studies that backed the claim; 

— Masks “prevent children from effective learning” and they affect a child’s ability to communicate with others, which results in social and emotional problems.

“At this point there is not enough evidence to support that these concerns can be supported by evidence,” Whalen writes. “They are hypothetical concerns and need further study.”

Mary Rozak, the county spokeswoman, wrote of Whalen’s responses, “Please note that Dr. Whalen has answered these questions based on what scientific evidence can support. It is also essential to note that the COVID19 pandemic remains a rapidly evolving situation, which means we continue to learn and gather more evidence to inform decisions and policy. Evidence means this has been studied at a rigorous academic level”;

— “For a majority of the population, including the vast majority of children and young adults, Covid-19 infection poses less of a mortality risk than seasonal influenza.”

Whalen writes, “COVID19 is far more harmful and deadly than seasonal flu. The burden of serious disease and death is largely in those with preexisting conditions and older adults, but childhood asthma and other underlying conditions can affect outcomes. In addition, there are more concerning sequelae of COVID19 including MISC and long COVID which affect children and which we are still learning about.”

MISC stands for multisystem inflammatory syndrome, a condition where different body parts can become inflamed, including the heart, lungs, kidneys, brain, skin, eyes, or gastrointestinal organs.

Plaintiffs

Thomas told The Enterprise his kids wore masks all last school year, and he had thought the mandate would be pulled at the start of the new school year, but wasn’t.

Thomas’s two children attend a private religious school in Albany County and have had difficulty both giving and receiving communication because of the masks, the lawsuit states. In addition, according to court papers, Thomas’s children suffer from physical symptoms of mask-wearing such as headaches and exhibit psychological effects like anxiety.

Karen LeClair, another plaintiff, has four children in Clinton County public schools, three who have “suffered headaches, dizziness, and upset stomach,” from wearing a mask, the suit alleges.

Saratoga County’s Andrea Penamora has a child with an autism spectrum disorder for whom mask-wearing makes it difficult to receive communication, the suit alleges, which has led to him attending school virtually.

Danielle Schipano’s pre-kindergartener in Hamilton County public schools
“has autism spectrum disorder, sensory processing disorder, epilepsy, conductive hearing loss, speech delay, and other learning disabilities,” according to the filing. 

Schenectady County’s Joseph Whitehead has a seventh-grade daughter who suffers “headaches, dizziness, and upset stomach,” the suit states.

Thomas, who lives above the village, is a well-known developer in Altamont, and the administrator of the private Facebook group Unmask New York School Children Now. 

He started the Facebook group in May, trying to get 200 “like-minded people like me,” he said. Two-hundred quickly became 500. It soon exploded, overnight. He went to bed one night with 3,500 and woke up with 7,000 and by the end of the same day, that number was 9,000, he said. Unmask New York School Children Now now has about 17,800 members, as of Wednesday.

At the end of the last school year, with its 96-degree days, Thomas said his kids were sent to school with freshly-washed masks and came home with ones that were “disgusting.”

In June, the week before the last week of school, Thomas said, his daughter came home and her mask was “completely saturated.” He said his at-the-time 7-year-old daughter told him she tried to pull it down but a teacher wouldn’t let her. 

He made the case that, across the country, thousands of unmasked people are congregating in places like football stadiums and concert venues, but “our kids are made to wear masks in school.”

It was pointed out to Thomas that those events are attended by adults, some of whom are vaccinated. Currently, vaccination is authorized only for people 12 and older.

Thomas countered with the low mortality rate of children who contract COVID-19. He then said, “There’s absolutely no reason for a child to be in a mask. And we’re going to have experts that are probably the best experts across the country testify to that behalf.”

Thomas said masks do not stop the spread of COVID-19, because the virus is 1,000-times smaller in diameter than a strand of hair.

Thomas said there isn’t a “viable study in the United States or world for that matter that shows that masks can stop the spread.” Thomas said his words were coming from the experts that were hired for the court case. 

“Claims that masks have any ill effects on children have been largely debunked. At least two studies have found that wearing an N95 mask has no significant effect on children’s ability to breathe,” the state argues in the Franklin Square motion. “A review of these studies, and of eight other studies on various types of face masks in adults, determined that surgical and cloth masks did not significantly compromise ventilation and oxygen supplies in healthy individuals.”

COVID-19 is less harmful to our children than the regular flu, Thomas said, reiterating these were the words of experts tapped for the group’s lawsuit. 

Asked if he would have his own children vaccinated when they were eligible, Thomas pivoted. “Well, that’s not the discussion, right now. It’s a parent’s choice,” he said. “I’m not anti-vax; I’m pro-parent choice. If somebody wants to get vaccinated, they can get vaccinated. If somebody wants to wear a mask, they can wear a mask.”

Thomas said mask-wearing is causing children physical harm, that it causes the carbon dioxide in their bloodstream to increase, which makes them “loopy.”

Known as hypercapnia, increased carbon dioxide levels in the blood can cause shortness of breath, dizziness, headache, and, in the most severe cases, hyperventilation, seizures, or death.

About wearing a mask increasing a child’s carbon dioxide intake, Whalen, the county’s health commissioner, states, “At this point there is not enough evidence to support that these concerns can be supported by evidence. [It is a] hypothetical concern and need[s] further study.

Lawyers

The lawsuit has some well-known attorneys signed on. 

John Sweeney, a former Republican congressman who played a role in the 2000 Florida recount and more recently was tapped by former president Donald Trump in his baseless claims to challenge the vote-count in states he lost to now-President Joseph Biden, is one of the group’s lawyers.

Locally, Sweeney was the lawyer for a group of Berne residents who sued the town in an attempt to nullify the purchase of Switzkill Farm. The suit was ultimately dropped. 

Thomas Marcelle, another lawyer arguing the anti-mask case, was the Albany County attorney from 2012 to 2016.

His nomination faced opposition from gay-rights and progressive activits for his work as an attorney for a group that used the courts to oppose abortion, the separation of church and state, and same-sex marriage. At the time, Marcelle said he would uphold New York’s same-sex marriage law.

In 2019, he was nominated for a federal judgeship but withdrew after the nomination was blocked by Senator Kirsten Gillibrand because of Marcelle’s opposition to abortion. 

In 2001, Marcelle successfully argued before the United States Supreme Court. In that case, Good News Club v. Milford Central School, the court, in a 6-to-3 vote, determined that a group of elementary school students could hold religious-studies meetings on public school grounds.