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Middletown Students Join Anti-Mask Lawsuit In NJ Schools

Patch logo Patch 7/15/2021 Carly Baldwin
a young boy sitting at a table © Shutterstock

MIDDLETOWN, NJ — Two students at Middletown High School South are part of a lawsuit filed against Gov. Phil Murphy, state Commissioner of Education Angela Allen-McMillan and New Jersey's Department of Health Commissioner Judy Perischilli, seeking to prevent them from issuing a mask mandate for New Jersey schools this fall.

In June, Gov. Murphy announced that there would be no mask mandate for school this fall, but said he would leave it to each school district to decide. At the time, Murphy also said he was awaiting further guidance from the CDC to come out later this summer, and said the state could always revise its policy ahead of the first day of school.

The lawyer who filed the suit, Bruce Afran, said his lawsuit seeks to prevent any New Jersey school district from issuing its own mask requirement. Afran said his lawsuit also seeks to prevent Murphy from implementing a statewide mask mandate, should the governor decide to do that.

"Some school districts (such as Newark) are already saying the kids have to wear masks," said Afran, who is based in Princeton. "So it's already starting. And this lawsuit challenges their right to do that."

A spokeswoman for Gov. Murphy's administration said they will not be commenting on pending litigation.

The Middletown student is Gabe McMahon, 18, who will be a senior this year at Middletown South. The other student is a sophomore at South, and is unnamed because he or she is a minor.

McMahon declined to speak to the media, said Afran.

"In the past year, New Jersey schoolchildren have been not only forced to wear a mask. They have been prevented from going within six feet of their teacher or another classmate," said Afran. "They are forced to sit just two students at a lunch table and they must sit across from each other, not next to each other. They have had Plexiglas put up around their desks, and told not to leave their desk area. They are chastised daily or given disciplinary write-ups if their mask falls down. They no longer have the ability to socialize with other students.

"Additionally, all of this was done without parental consent," he added.

Afran filed the lawsuit last Friday, July 9 in federal court; it is scheduled to be heard by U.S. District Judge Kevin McNulty in the Newark federal courthouse. Afran said he will be petitioning to have the process expedited so his case can be heard sometime in August, before the start of the school year.

The Middletown teens joined 14 other plaintiffs in the lawsuit, 16 in total, all of them New Jersey public school students. Because McMahon is the only one who is 18, his other co-plaintiffs are not named and some are represented by their parents in the suit. The schoolchildren are from a wide range of ages and from a variety of New Jersey towns: Middletown High School South, a third grader in the River Vale school district, three siblings in the Mahwah school district, siblings at Barnegat High School, two children in West Orange, a Bordentown elementary school student, Jackson High School, two students at Old Bridge High School, a student at John P. Stevens High School in Edison and a student in the Sparta school district in Sussex County.

Kelly Ford, a mom in Barnegat in Ocean County, gave her daughter, a high school sophomore, and her son, a senior, permission to participate in the lawsuit. Both her children are enrolled at Barnegat High School.

"My kids could not wear the mask, so they were forced to stay home and do virtual school, which simply does not work," she told Patch. "They endured anxiety, depression and pain along with anger at how their world had changed and feeling like their school year was taken from them. They lost contact with friends and teachers that they had developed relationships with. The virus affects them the least and you cannot take away someone's right in order to protect other people who might get sick."

"All of these students have had their constitutional and basic rights violated," said Afran. "We have to remember that children have constitutional rights too, just like adults."

Afran argues that the forced wearing of masks, six-foot social distancing, cafeteria rules and Plexiglas barriers all violate the First, Fifth and 14th Amendments to the U.S. Constitution. All three of those amendments were written to ensure freedom of American citizens.

Murphy and his state Department of Education implemented all of these safety measures to prevent the transmission of COVID-19 last year.

But Afran argues that the current risk of coronavirus is not high enough to bring all these measures back for the 21/22 school year — although Murphy has given no indication he will do that.

"Just because he wants to avoid disease is not enough justification to impose these regulations, except among people who are known to have coronavirus, or known to be exposed to it," he said. "Gov. Murphy does not have the legal power to do most of what he's done in the past year. It's remarkable he's gotten away with so much of it and that's because nobody in New Jersey challenged him."

"In this country, COVID is no longer a crisis and if the governor attempts to say it is, we are going to force him in court to prove it's a crisis."

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