Lansing Catholic school set to appeal ruling on school mask requirements

Beth LeBlanc
The Detroit News

A Lansing Catholic school will ask for the full Sixth Circuit Court of Appeals to consider its case after a divided three judge panel denied the school's request to stop Michigan's school mask mandate. 

Resurrection School will ask for an "en banc" hearing — one before all of the appellate judges and not just a select panel — after a Sixth Circuit panel ruled 2-1 against the school in a ruling released Monday. 

"While we truly respect all three judges on the panel, we believe the dissenting judge presented the most accurate legal analysis and raised points that should be decided by the full court," said Erin Mersino, a lawyer representing the elementary school. "We look forward to continuing the appeal and hope for a favorable outcome that preserves the guarantees of the First Amendment."

Michigan Attorney General Dana Nessel celebrated the decision Tuesday as proof that the Michigan Department of Health and Human Services was "well within its jurisdiction" when it issued a school mask mandate last school year. 

“As science has proven and now the Sixth Circuit agrees, enacting a mask mandate in the manner in which MDHHS did so does not violate one’s rights — it is a measure by which we can better protect public health," Nessel said in a statement.

The statewide mask mandate is no longer in place, but some school leaders have pushed for the state to reinstate one instead of leaving the decision to individual school districts or county health departments. 

Resurrection's lawsuit is one of 51 suits filed against the pandemic orders that governed life in Michigan from March 2020 into June of this year. Of the 51 suits, 11 remain active.

Resurrection had argued in October that the orders violated their rights to freedom of speech, freedom of association, free exercise, equal protection and substantive due process. It also contended the orders violated Michigan's public health code and violated the state's separation of powers and non-delegation clauses.

The school's principal said the K-5 mask mandate violated the school's religious beliefs by preventing students from participating fully in their Catholic education. One of the parents said her child had breathing issues and was prone to respiratory infections but could not get a medical exemption from her doctor. 

But Kalamazoo U.S. District Judge Paul Maloney denied the school a temporary restraining order and preliminary injunction  — legal rulings that would have temporarily stopped the state's enforcement of the rules while the case was pending. Maloney ruled the state order was not motivated by hostility to any specific faith and that it was neutral because it applied to all schools. 

Resurrection School appealed to the Sixth Circuit Court of Appeals, where the state asked the case be denied because, with the mask mandate rescinded by that point, the issue was moot. 

The majority opinion by Judge Karen Nelson Moore on Monday found the case was not moot because it is uncertain whether Michigan's health department will re-issue a mask mandate.

But Moore wrote for the majority that the state orders were applied equally to religious and secular schools, disqualifying the arguments that the orders violated the free exercise or equal protection clauses. She also dismissed claims of a violation of due process as being "without merit."

Moore, who was appointed by Democratic former President Bill Clinton, was joined by Judge Bernice Donald, an appointee of Democratic former President Barack Obama.

Judge Eugene Siler agreed with Moore that the issue was not moot, but argued there were more recent pandemic-era decisions that the district court could have used to decide Resurrection's case.

Siler, an appointee of Republican former President George H. W. Bush, said he would remand the case back to the district court to re-examine its decision in light of the new decisions.