UPDATE on Lawsuit Challenging In-School COVID Testing as Illegal

by Michael Kane


The legal challenge to mandatory in-school COVID testing in NYC schools was argued in court on January 14, 2021 in the case AVILES vs. DE BLASIO. At that time the judge requested a supplemental briefing from plaintiff’s attorneys addressing 2 major parts of their argument, which are:

(1) PCR COVID tests cannot be mandatory to attend school because all such tests are operating under Emergency Use Authorization (EUA) by the FDA, and,

(2) How remote learning is harmful to the most vulnerable children in New York City.


Most people are unaware that PCR COVID testing has only received EUA status from the FDA, the same status that the Pfizer and Moderna COVID vaccines recently obtained. Under federal law, it is illegal to mandate any product that is under EUA status. Attorneys Jim Mermigis and Ray Flores argue that this fact alone is dispositive, meaning the law is clear and can’t be disputed. Thus, they argue, the judge must rule that PCR COVID testing in schools cannot be mandatory at this time.

Separate and Unequal Educations

Mermigis and Flores also argue, “Remote learning segregates, harms the most vulnerable, and implicates equal protection.” If you have a student in a family of ten all living in a one bedroom apartment, that child cannot learn as well in a remote setting as a family of four in a large house. As a New York City public school teacher myself, I can attest to the fact that this is 100% true and is hurting our students on a daily basis. When I ask one of my students a question, they unmute their microphones on GOOGLE MEET revealing noise and ruckus in the background that makes it impossible to stay focused on their school work while looking at the laptop, iPad or cell phone in front of them.

I encourage everyone to read the entire briefing from Mermigis and Flores, which is included as a pdf file you can download from this post. Plaintiff’s attorneys believe the judge will issue a ruling very soon.

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