• Children's Health Rights of MA

Massachusetts Judge Upholds School Mask Mandate, Compares Masks to Snow Pants

In another bizarre ruling, the Judge again got it wrong and denied our appeal for injunctive relief in our pursuit to make masks optional for school children in Massachusetts.


One of the more tiresome aspects of the past two years is being subjected to terrible analogies: for example, that face masks are like seatbelts or parachutes. A bunch of bad mitigation measures, when combined, are like Swiss cheese.


Not to be outdone in the bad analogy department is Associate Justice Joseph M. Ditkoff, who writes:

The plaintiffs' calling mask wearing a "healthcare decision[]" does not make it so. That the department expects masks to reduce the risk of illness does not make them medical devices any more than snow pants become medical devices because schools mandating their use expect them to reduce frostbite.

Never mind that snow pants serve a useful purpose, can be taken on and off with free will, and don’t impede breathing.


Regardless of the lack of safety and efficacy behind mask wearing, it is illegal to mandate emergency use-authorized (EUA) investigational medical therapies without informed consent.


Mask use for viral transmission prevention is authorized under EUA provisions only.


Emergency Use Authorization means “the products are investigational and experimental” only. The statute granting the FDA the power to authorize a medical product of emergency use requires that the person being administered the unapproved product be advised of his or her right to refuse administration of the product [21 U.S.C.§ S360bbb-3 (The FD&C Act)]. This statute further recognizes the well-settled doctrine that medical experiments, or “clinical research,” may not be performed on human subjects without the express, informed consent of the individual receiving treatment [21 U.S.C. § 360bbb-3(e)(1)(A) (“Section 360bbb-3”)].


Masks are considered medical devices under the EUA, yet the Judge compares them to snow pants and goes on to say "Parents who choose to send their children to public schools do not thereby gain the constitutional right to exempt their children from the school's dress requirements.". Masks are now part of the dress code? We think not.


The writing is on the wall that the tides are turning, too slowly, but turning. The CDC now admits the cloth masks that people have been wearing for two years are ineffective and have updated their recommendations to N95 and KN95 masks for personal protection.


Boston doctors are now urging school officials across MA to change their masking policy because they see the harm it is doing to our children—harm we have made clear in our lawsuits and have been trying to prevent.


Many people across the country are exploring Surety Bonds as a way to get mask mandates rescinded in their schools. Our attorneys are looking into this tactic and they recommend exploring any and all options.


In the meantime, over 100,000 truckers in a Freedom Convoy have descended upon Ottawa, Canada to protest Government mandates, sparking trucker convoys all over the world. You can feel the world waking up and people coming together. The tides are turning.


As we carefully assess our next steps in pursuing legal justice, please continue to reach out to your school committees and school officials to share the facts and urge them to make masks optional. Consider acts of civil disobedience. And never give up on our children.


Courage is contagious.


For background on our quest to remove masks, read the original complaints and a recap of the appeal hearing.


You can also watch the full appeals hearing for yourself.



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