AMHERST, N.Y. (WIVB) – State senator George Borello and Niagara County Legislator John Syracuse joined a group called NY Parents to Unmask Children Inc. in filing a lawsuit Friday against Gov. Hochul and the Department of Health to challenge the state’s requirement that all students, staff and faculty must wear masks while in school buildings due to the ongoing pandemic.

The lawsuit, filed in state supreme court, advocates for parental choice and claims the state’s regulation “is arbitrary and capricious given the absence of any emergency justifying the use of emergency adoption procedures.”

“Throughout this country, the legislative and judiciary branches have stepped back and allowed the executive branch at all levels of government to assume sole control of all government functions when it has any association with the COVID-19 virus and taken fundamental decision-making away from the individual,” attorney Corey J. Hogan of HoganWillig said in a statement announcing the suit.

HoganWillig has been active in lawsuits regarding health and safety restrictions, representing parents in similar lawsuits over masking requirements near the end of the last school year, as well as suits seeking to get youth hockey players back on the ice.

In one case pertaining to Lancaster last June, a judge ruled in favor of the school district and called the lawsuit “a mad-dash to the courthouse” to attract attention.

But the issue remains contentious. Christian Central Academy in Williamsville, for example, sued the state earlier this month over this year’s mandate. A state supreme court judge, however, denied their request for a preliminary injunction.

The Centers for Disease Control and Prevention (CDC) recommend universal indoor masking for all students age 2 and older, as well as staff, teachers, and visitors to K-12 schools, regardless of vaccination status.

The Erie County Health Department noted this week that “the highest positivity rates continue to be in persons under age 19.” It said the 5-10 and 14-17 age groups each had positivity rates of more than 7% for the week ending Sept. 11 while the 11-13 age group’s positivity rate was nearly 10%. It added that these age groups tend to have lower overall testing numbers than adults.                               

You can view the full lawsuit below.