Western New York Students First Legal Update

As you all are aware, it has been a roller coaster in New York State over the past month with respect to our state government and their role in the reopening plans for schools in the fall.

Over the course of the summer, school districts were alerted by email that they could choose to use camp/ daycare guidance to allow for mask choice, 2020-21 CDC school guidelines, or 2020-21 NYS school guidelines. The vast majority of school districts chose to put parents in the decision making seat as to what was best for their child, with the exception of a few (Buffalo Public Schools and NYC schools). Some families chose to send their children with masks and some chose to send their children without masks. There has been no indication of uncontrolled spread within summer schools or camps.

The CDC and AAP have now recommended universal masking for schools, regardless of vaccination status.

It is important to note that these decisions made by the CDC (and AAP) have not been supported by data and neither of these organizations have made any effort to investigate the most disruptive pieces of remaining COVID school policies- quarantines and masking- or adjust recommendations. Thankfully there has been acknowledgment from both organizations on the importance of in person education, acknowledgment of the science WNYSF and others brought to light in the spring of the arbitrary nature of social distancing requirements and there is no longer a color coded community transmission matrix that forces children into hybrid schooling.

NYSED put forth their own suggested protocols for schools last Thursday. It is the current legal opinion of our counsel that this is not a binding document that mandates compliance. At this point, school districts are responsible for creating their own COVID policies. A few school districts have announced their mask choice policies, but most are in a holding pattern and plan to release details "at a later date." Erie County Department of Health also indicated to area superintendents that they would also be issuing guidance "as soon as possible." It is unclear if this ECDOH guidance would be mandates or not, but there is a current state of emergency in Erie County that was extended by County Executive Poloncarz until September. With the impending resignation of Governor Cuomo, we anticipate that Kathy Hochul will move to make a universal mask requirement for schools as evidenced by several comments she has made to media outlets. This would change our legal approach to be a statewide action.

As the ultimate mandates to be imposed on NY schoolchildren remains undetermined, we are working through various contingent legal strategies to address what we anticipate are the likely outcomes.

The ultimate outcome of any legal action is of critical importance, not only to our children now but in the future. Creating legal precedent on this issue must be done carefully and with the best interests of this and future generations.

Our delay in commencing legal strategy is not a result of waning interest in this issue. Instead, it is a result of carefully evolving legal strategy during an ever evolving challenge while simultaneously advocating to school boards and legislators.

We are still very much in this fight.

We understand how frustrated parents feel and are living and breathing the same emotions. What is the plan one week gives way to something different the next week. Once we see what ECDOH and incoming Governor Hochul do, we will be able to take the next necessary steps.

Please continue advocating for your children by writing and calling your legislators. Thank you for your support and for giving hope to the dream of parents deciding what is best for their children.

Dana Hensley
Board Member & Legal Liaison