Speech-delayed boy, 3, does not qualify for emergency relief, must wear mask to school, rules judge

A judge has denied a family’s request for a speech-delayed 3-year-old boy with learning disabilities to attend preschool without a mask.

Judge Jeffrey Rabin ruled that the child did not qualify for the emergency relief his mother, Katherine Hart, requested.

Hart’s lawsuit against the Medford Lakes School District asked that her son be allowed to start preschool immediately without a mask requirement for the entire school day, on the grounds that he had not attended preschool since Jan 18.

The school argued that it was Hart’s choice to hold her son back from preschool. Hart has acknowledged this, saying she did not send him to school because her non-verbal child would not be able to cope with the frustration and anxiety of having to wear a mask in a new environment where he is already at a disadvantage because of his learning disability.

In his ruling, the judge agreed with the school that the break in services for the child was brought on by Hart's decision to keep him home until the mask issue was resolved and was not the school’s fault, which disqualified her request for emergency relief.

Hart was also unable to prove the “irreparable harm” her son would suffer if he attended preschool with his mask and in compliance with the mask mandate, the judge wrote.

Gov. Phil Murphy recently announced that the school mask mandate will be lifted on March 7. It will be left up to individual districts whether to keep the mandate or make masking voluntary.

Hart did not send her son to preschool after the administration's denial of her request to amend his Individualized Education Plan (IEP), part of a state-approved program designed for special needs children, with an exemption from the mask mandate.

The law that mandates masks in school during the COVID-19 emergency makes an exception for children whose IEPs say they are unable to wear masks. The school refused to issue this exception. Hart sued for emergency relief, asking that her child be allowed to attend school mask-free immediately, which would have required the school to amend the learning plan.

The school mask mandate issued by Murphy in an executive order in March 2020 for the COVID-19 public health emergency requires anyone inside public and private K-12 schools in the state to wear a mask to reduce virus spread.

In oral arguments to the court during a virtual hearing conducted on Zoom, Hart, who represented herself, said her son suffered from two speech-related learning disabilities and that he would be traumatized by adults repeatedly placing a mask on his face.

“He does not understand most of what is being said to him, and he does not have the ability to verbalize,” Hart said.

The ruling did not take a position on what could qualify as a reason to be excused from the mandate. Instead, it noted that Hart’s son suffered from learning disorders, and not from a medical disorder that could prevent him from wearing a mask.

The decision comes at a time when lawsuits contesting mask mandates are unexplored territory even for judges and the courts.

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“These are cases of first impression before the New Jersey judiciary, and neither party offered any precedential case law setting out legal guidelines concerning mask mandates,” wrote the judge. He described issues around mask mandates as “new and unique,” but because Hart brought the lawsuit, the burden of providing previous court rulings was on her and she was unable to provide any.

That highly politicized debate around mask mandates appears to be new territory for advocacy groups and organizations, too. Private consultants who advise families of special needs children about IEPs and some of the state’s leading advocacy groups for parents and education, such as the SPAN Parent Advocacy Network and the Education Law Center, did not want to take a position on the lawsuit when contacted by The Record. Disability Rights New Jersey did not immediately respond to an email asking for comment.

Rabin wrote in his ruling that the damage mask-wearing could do to a single child did not outweigh the public health benefit of wearing masks in school. In “balancing the saving of students’ lives throughout the school system against one student’s unproven claims of harm,” the balancing clearly leans in favor of the school district, he wrote.

The key issue is whether Hart's request met the standard for emergency relief. It did not, for all these reasons, the ruling said.

The school's attorney also argued that it offered Hart's son unmasked speech therapy sessions and that he attended one therapy session on Feb. 11. The school district did not respond to a request for comment.

“It was what I expected would happen as those courts always side with the district regardless of how much evidence, data or just plain common sense you bring in," Hart said. "I don’t take it as a total loss, as everything I did say and share is now part of the record.”

The family is looking into other placements for the child.

“The district’s actions violated our trust in placing him there, as they clearly do not care about his best interests or his needs,” Hart said.

Mary Ann Koruth covers education for NorthJersey.com. To get unlimited access to the latest news about New Jersey's schools and how it affects your children, please subscribe or activate your digital account today.

Email: koruthm@northjersey.com

Twitter: @MaryAnnKoruth

This article originally appeared on NorthJersey.com: Speech-delayed boy, 3, must wear mask to preschool, says judge