Appeal of M.F., on behalf of her child, from action of the New York City Department of Education regarding the mask mandate.

Decision No. 18,122

(May 17, 2022)

Brain Injury Rights Group, attorneys for petitioner, Ashleigh C. Rousseau, Esq., of counsel

Georgia M. Pestana, Corporation Counsel of the City of New York, attorneys for respondent, Marilyn Richter, Esq., of counsel

Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her child (“the student”) is not entitled to a medical exemption from respondent’s mask requirement during the 2021-2022 school year.  The appeal must be dismissed. 

During the events described in this appeal, the New York State Department of Health required that all students attending in-person instruction wear facial coverings.  In accordance with State and federal guidance, respondent provided an exemption from the mask mandate for “individuals who [we]re unable to wear or ha[d] difficulty wearing certain types of masks because of a disability” (“medical exemption”).

At the beginning of the 2021-2022 school year, petitioner requested a medical exemption on the student’s behalf.  By letter dated November 1, 2021, respondent indicated that it would not grant a medical exemption at that time.  This appeal ensued.

Petitioner argues that respondent’s denial of her request for a medical exemption violated the student’s rights under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”).  Petitioner also argues that the denial was arbitrary and capricious because she submitted sufficient proof that the student cannot wear a mask because of a disability.  Petitioner seeks, primarily, a determination that the student is entitled to a medical exemption.

Respondent contends that its denial of petitioner’s request for a medical exemption from the mask mandate was proper.  Respondent notes that the student consistently wears a mask in school “without any problems.”

First, I must address a procedural issue.  A reply must be served within 10 days after service of the answer to which it responds (8 NYCRR 275.14 [a]).  If the answer was served by mail, the date of mailing and the four days subsequent thereto shall be excluded in calculating the 10-day period (8 NYCRR 275.14 [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).  Petitioner’s reply was served beyond this time limitation.  Therefore, it has not been considered.

Additionally, petitioner’s alleged violations of IDEA and Section 504 must be dismissed for lack of jurisdiction.  Enforcement of Section 504 is within the exclusive jurisdiction of the federal courts, the United States Department of Justice, and the United States Department of Education and may not be obtained in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,676; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806).  Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC § 1415), Education Law § 4404, and section 200.5 (j) of the Commissioner’s regulations (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).

Relatedly, the appeal must be dismissed based on an election of remedies.  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of A.D., 46 id. 236, Decision No. 15,492).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum (Appeal of Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).

Prior to commencement of this appeal, petitioner filed a lawsuit concerning the same issues, seeking similar relief (Donohue, et al. v. Hochul, et al., Dkt. No. 1:21-cv-08463 [SD NY]).[1]  Plaintiffs’ request for interim relief was denied, the case was dismissed on February 23, 2022, and an injunction pending appeal was also denied; the appeal remains pending.  Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide claims that petitioner has elected to raise in court, particularly where these proceedings seek the same or similar relief (see Appeal of Chen, 60 Ed Dept Rep, Decision No. 17,914; Appeal of Minaya, 60 id., Decision No. 17,879; Appeal of Moriarty, 57 id., Decision No. 17,265). 

In any event, the appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

Facial coverings are no longer mandatory in New York schools  (see New York State Department of Health and State Education Department Joint Mask Guidance Letter [Mar. 1, 2022], available at https://coronavirus.health.ny.gov/system/files/documents/2022/03/joint-m... [last accessed May 11, 2022]).  Thus, the student is no longer required to wear a mask, obviating the need for an exemption thereto (Appeal of Scott and Edie, 59 Ed Dept Rep, Decision No. 17,808; Appeal of P.D. and C.C., 56 id., Decision No. 16,999; Appeal of Cham, 55 id., Decision No. 16,873).

In light of this disposition, I need not address the parties’ remaining contentions. 

THE APPEAL IS DISMISSED.

END OF FILE