Parents challenging Rhode Island’s school mask mandate scored a major court victory last week that will greatly impact how the state handles potential future public health outbreaks.
The legal saga began in September 2021, when several Rhode Island parents filed a complaint in Providence County Superior Court against Democrat Gov. Daniel McKee and Nicole Alexander-Scott, the director of Rhode Island’s Department of Health (RIDOH), over the state’s then-enacted school mask mandate. In response to the Covid outbreak, then-Democrat Gov. Gina Raimondo issued an executive order on March 9, 2020, declaring a state of emergency. From that date until July 2, 2021, Raimondo and McKee — who took office in March 2021 — issued a combined 78 executive orders related to Covid.
On July 6, 2021, the Rhode Island legislature passed a measure terminating the governor’s authority to issue Covid orders, prompting McKee to rescind all existing and related directives that same day. This, however, did not stop McKee from issuing a pair of Covid-linked executive orders on Aug. 19, 2021, one of which required Rhode Island public schools “to abide by a universal indoor masking protocol developed by the [RIDOH]” mandating “masking by all students (age 2 and older), staff, teachers, and visitors to K-12 schools.”
On June 29, 2021, the state’s education department, “in conjunction with the RIDOH and the Governor,” announced back-to-school guidance for the upcoming academic year, allowing local districts to decide whether masks should be mandatory or optional. Many localities subsequently adopted a policy of “strongly recommending,” but not mandating, masks for students, faculty, and visitors.
McKee’s August 2021 order prompted Rhode Island parents to file the aforementioned complaint, documenting the lack of evidence supporting universal masking and requesting the court declare the directive unlawful. Plaintiffs also requested the court issue a temporary restraining order and preliminary and permanent injunction prohibiting McKee from issuing additional Covid-related executive orders and declaring the governor’s standing orders and RIDOH’s school masking guidance as void.
While McKee and RIDOH lifted the school mask mandate in March 2022, parties in the case continued to engage in litigation for the next year and a half. On Dec. 12, they agreed to a settlement that commits RIDOH to follow the normal regulatory process and hold public hearings “on whether masking in schools is efficacious and safe.”
According to the plaintiffs’ press release, RIDOH has agreed to provide Notice of a Public Hearing “within 30 days of the entry of a dismissal stipulation” in compliance with the regulatory process as specified by the state’s Administrative Procedures Act that will determine “whether, in the future, forced masking in a public school setting is appropriate.” The dismissal stipulation is expected to be submitted before the end of this year.
Plaintiffs intend to call medical specialists to discuss the inefficacy and harms associated with forced masking during the aforementioned hearing, which will be open to the public. Following the hearing, RIDOH has agreed to produce a “cost-benefit analysis of the forced masking of schoolchildren,” which the state has declined to do until now. Greg Piccirilli, the plaintiffs’ lawyer, told The Federalist he expects the hearing to occur in spring 2024.
Furthermore, Rhode Island health officials agreed to alter guidance to public schools, clarifying that “there is not now and will not be a ‘mask mandate’ for students, even those who test positive for COVID,” who were exposed to the virus, or show Covid-like symptoms. In exchange for these actions, the plaintiffs have agreed to drop their lawsuit.
“This was never a case about parents looking for money. We just wanted the state to follow the regular normal regulatory procedure,” Piccirilli told The Federalist. “We’re hoping to really create a record that people will be able to look to in the future, so if they ever try to do something like this again, we’ll be able to say, ‘No, the evidence shows that [mandatory masking] doesn’t work.’”
Amended Complaint, Southwel… by The Federalist
The Science Is In
Despite so-called “experts,” like Dr. Anthony Fauci, flip-flopping on the subject, forced masking has proven to be ineffective at stopping the spread of Covid. Earlier this year, for example, a study published by the Cochrane Library — which is considered to be the “gold standard for health care data review” — found that wearing masks “makes little or no difference to influenza-like or COVID-19-like illness transmission.”
The study came roughly a year after the Centers for Disease Control and Prevention tacitly admitted that cloth masks “provide the least protection” against Covid.
Mandatory masking in schools is even more ludicrous when considering that children are the least at-risk age demographic with respect to Covid. In addition to children not being super-spreaders of the virus, research shows the majority of American children already recovered from Covid by early 2022 and therefore possess immunity to reinfection.
As part of their efforts to dispel Rhode Island’s baseless school masking policy, plaintiffs in Southwell v. McKee relied upon the expertise of Dr. Andrew Bostom, an epidemiologist and retired Brown University associate professor of internal and family medicine. In his capacity as an expert witness, Bostom presented data documenting the grossly inaccurate modeling used to justify tyrannical Covid policies such as forced masking. He also referenced data from the RIDOH’s own Covid information hub showing zero Rhode Island children died from Covid since the outbreak began.
“There is no justification” for masking, Bostom told The Federalist. “We have to rely on randomized controlled trials when it comes to questions like community masking, that’s the highest form of evidence. If there’s no other evidence, so be it. But we had a lot of evidence before Covid [that this policy doesn’t work in stopping the spread of respiratory disease.]”
Similar to their attacks against other doctors who refused to accept government narratives on Covid without question, legacy media have attempted to discredit Bostom as a credible voice on the issue. In its October 2021 report on Southwell v. McKee, for instance, The Providence Journal tried to delegitimize Bostom’s medical expertise by referencing his appearances in conservative media and prior scholarly writings on Islam.
“Some television viewers might recognize Dr. Andrew Bostom for his television appearances on Fox News and C-SPAN, where he has made appearances as an author with much to say about Islamic jihad,” the article reads. Another local outlet advanced claims questioning Bostom’s ties to Brown.
“I was just trying to get people to calm down and behave in a rational, evidence-based way, and these people were out” to destroy me, Bostom said. “It was shocking.”
The Road Ahead
In his closing remarks, Piccirilli expressed hope that last week’s court settlement will set a standard compelling other states and the federal government to follow the regulatory process and hold public hearings when issuing public health edicts that greatly impact people’s lives.
“If the evidence is so clear, have a public hearing. Have the debate. … That’s the way the law has been for decades,” Piccirilli said. This wasn’t done with Covid “because the evidence didn’t support what they were doing, and they were afraid to have public hearings. So, not only should every state be doing this like they do with every regulation they pass, but the federal government should be doing it [as well].”
Bostom voiced similar optimism, suggesting the exposure of health officials’ lies during the Covid pandemic will prompt more Americans to support evidentiary-based hearings on issues related to public health.
“Evidence needs to be needs to be presented and debated openly and fairly,” Bostom said.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
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