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Fojo Law Files Fifth Lawsuit Challenging School District Face Mask Mandate

This afternoon, we filed another lawsuit challenging a New Hampshire school district’s requirement that students wear face masks while in school or participating in extracurricular activities.

This lawsuit comes after we filed one against the Hollis/Brookline School District (School Administrative Unit #41) and a second one against the Bedford School District (School Administrative Unit #25) in late May, a third one against Londonderry, Epping, and Timberlane School Districts in July, and a fourth one last week against the Exeter School District.  Like those lawsuits, this one was filed on behalf of 10 sets of parents and their children residing in the District and challenges its requirement that students wear face masks or coverings while in school or participating in extracurricular activities.  In addition to a claim that this mandate violates a New Hampshire statute (RSA 126-U:4) that prohibits schools from requiring restraints on children that restrict their breathing (including any restraint that involves covering the face or body with anything) or that restrict the normal function of a portion of their bodies, this lawsuit also alleges school district face mask mandates violate a parent’s fundamental Constitutional right to make medical decisions for their children and direct the care and upbringing of their children; school districts lack the statutory authority to issue face mask mandates; and any such mandates are preempted by the New Hampshire Department of Health and Human Services’ comprehensive regulatory scheme concerning communicable diseases.

The lawsuit, like the first action we filed on behalf of Mary Rivard last year, the action we filed last year challenging the City of Nashua’s face mask ordinance, and the action we filed challenging Governor Sununu’s closure of New Hampshire schools, also includes an emergency motion for a temporary restraining order enjoining each school district from enforcing its face mask requirement.  The motion can be found here.

The lawsuit principally alleges that the District’s mask mandate infringes on parents’ fundamental rights to make medical decisions for their children; the District cannot identify any compelling objective for the mandate because COVID-19 presents no risk to children in New Hampshire; and, even if there was such an objective, the mandate is not narrowly tailored to satisfy that objective because there is no evidence masks have curbed the spread of COVID-19, and masks are harmful for children.

The lawsuit also alleges that requiring children to wear face masks or coverings contradicts one or more of the prohibitions contained in RSA 126-U:4.  Wearing a mask requires a child to cover his or her face with certain material (whether a surgical mask or a cloth mask), mechanically restricts a child’s breathing by increasing the resistance of air movement during the child’s inhalation and exhalation process, and restricts the normal function of their bodies (breathing).

In addition, the lawsuit alleges that wearing a mask has also caused the Plaintiffs’ children, at times, to develop acne and rashes on their faces in the area where the masks are worn.  These problems have caused them to be afraid, suffer anxiety, and experience headaches.  Those issues, in turn, make it difficult and uncomfortable for them to participate meaningfully in in-person instruction.  They can also cause numerous physiological and psychological effects, as well as long-term health consequences.

We are seeking an emergency order restraining the District from enforcing its face mask mandate and from extending that mandate for the rest of the 2021-2022 school year so that children can continue attending school in-person without the burden of wearing a face mask.