This article about a Connecticut court decision regarding masks in schools was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On November 2, 2020, Judge J. Moukawsher of the superior court in Hartford District, Connecticut denied the request that children do not wear masks while attending school. The Connecticut Freedom Alliance, LLC sought an emergency injunction stopping Connecticut’s Department of Education’s order that Connecticut school children wear masks.
Connecticut masks court decision
The lawsuit was filed on August 25, 2020. It claimed, as summarized in the decision, that “masks don’t work, are the wrong way to fight the disease, and… are a grave danger for children.” Initially, the lawsuit had two expert witnesses – anti-vaccine ophthalmologist James Meehan, who we have met before making unfounded anti-vaccine claims, and Dr. Andrew Kaufman, a psychologist who, apparently, believes that “viruses do not exist and that COVID-19 is a hoax,” but Judge Moukawsher found them not qualified – ruling that they “lack specific expertise and hold anti-science views that make them unsuitable to testify in a case that ‘would require the Judicial Branch to seize from the Executive and Legislative Branches’ power over a matter of public health.’”
The alliance found two other expert witnesses to fight the Connecticut school masks order, a “California psychiatrist named Mark McDonald” and a “biostatistician and epidemiologist from New York called Knut Wittkowski.”
The alliance asked for an emergency injunction, claiming that the mask order threatens immediate “severe, irreparable physical and emotional harm” “to substantially all of the school children in this state.” The standard, as summarized in footnote 1, is for the plaintiffs to “(1) show [the Alliance’s] members face imminent and irreparable harm, and (2) prove that its legal claims are correct and that there is no other way to undo the harm its members face.”
The judge found that the Alliance has not made its case. The court found that Dr. McDonald’s views on masks were unsupported. Dr. McDonald drew on observations and things he read to claim masks do bad things to kids by blocking the parts of the fact that help kids understand what someone is saying and blocking the flow of oxygen to nose or mouth, and concluded that masks are harmful, describing them as potentially causing imminent and irreparable harm.
The court rejected his views because “he doesn’t have any relevant experience with oxygen deprivation or speech pathology” and his articles don’t support his claims.
The court’s views on this deserve quoting at some length:
First, several of the articles are just opinion pieces critical of mask wearing. They aren’t scientific studies. They reflect no research. They suggest no emergency. They are only the thoughts of people who like McDonald are doctors. McDonald could just as easily have recognized that the doctor who directs the Federal Center for Disease Control has a different opinion about masks and so do the doctors who speak for the 67,000 doctors of the American Academy of Pediatrics. They are just opinions, and most doctors disagree with McDonald.
One document does seem at least ot echo some of his language. The document is an internet post about a YouTube video purporting to translate from German a video of a doctor supposedly saying masks are an ‘absolute no-no’ for children…’
No matter how we look at it, this document is an unlikely foundation for a sweeping court order banning masks in public schools. In technical terms it is unauthenticated, quadruple hearsay…
In short, the court found that Dr. McDonald’s views are not supported.
Dr. Wittkowski fared better. The court acknowledged his experience in assessing studies. Nonetheless, it pointed out that Dr. Wittkowski brought to support his claim that children did not spread the virus did not show that; it only showed that younger children spread it less, and it is small, so offers limited support there, too. The study also does not show masks are dangerous, and Dr. Wittkowski did not claim it. He said he’s not an expert on masks and agreed masks worked.
The state brought two witnesses. Dr. Robert Dudley is the Chair of the Connecticut chapter of the American Academy of Pediatrics and works with children. Dr. Dudley said masks are not dangerous and pointed to the views of AAP. While the court pointed out this would be more convincing if he pointed to the science, the state could legitimately choose to just rebut the plaintiff rather than prove the science on masks, explained the court. It was on the plaintiff to support their claim for an emergency injunction.
The other state witness was Stephanie Knutson from the Department of Education, who surveyed over 70% of school administrators in the state and found that out of 390,000 students in their school district 221 asked for and received an exemption from the mask mandate, and 37 were refused. As a public record and general survey, the court accepted it as evidence that mask related issues are few.
On this evidence, the court found that:
…the other branches of government – the one whose job it is to do so – have that that [the drawbacks of masks] mostly minimal burdens on children are outweighed by the certainty that over 213,000 American grandparents, parents, and children are dead from COVID-19 and that it is a good thing to try to reduce the death rate.
The court reminded readers that under Supreme Court jurisprudence, it is for the other branches of government to choose the level of action, that the claims of harm have not been proven, and there is little evidence of harm.
This is a temporary decision. The case is not done; simply, the mask order stands while it’s litigated. But the decision casts substantial doubt on the plaintiffs’ experts and suggests the court finds their claims unconvincing. It suggests their chances of going forward are low.