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On March 2, U.S. District Court Judge Paul G. Gardephe denied the motion for preliminary injunction to end mandatory polymerase chain reaction (PCR) COVID-19 testing and to reopen New York City (NYC) schools.

The plaintiffs in Aviles v. de Blasio are Children’s Health Defense (CHD) and parents of schoolchildren. The suit challenges NYC policy that children whose parents who do not consent to in-school testing cannot attend school and can have access only to remote learning.

The judge said that the reopening issue is moot because by now all NYC elementary and middle schools have reopened, at least partially. Plaintiffs disagreed, as their children still cannot attend school.

He further stated (in footnote 13) that because the random testing program is based on parental consent, it is lawful.

Nasal swab PCR tests, which are classified as medical devices, are “emergency use authorization” (EUA). Under federal law, when the U.S. Food and Drug Administration grants EUA, it means the medical device remains experimental with no assurance of its effectiveness.

Indeed, while the judge and NYC authorities acknowledge that PCR testing does not detect COVID infection, they nonetheless assert that it is the best tool they have.

Parents and CHD object to mandatory nasal swab PCR testing because it is ineffective and susceptible to abuse. According to the Centers for Disease Control and Prevention, it is unethical and illegal to mandate this experimental medical intervention unless there is consent. As the Nuremberg Code, incorporated into New York law,  states, truly free consent is “absolutely essential.”

In our view, the judge seems to have adopted the legal fiction that “separate is equal,” i.e. that in-person instruction is equal to “remote learning,” despite evidence to the contrary. Judge Gardephe implies that relegating children to remote instruction is acceptable and that parents’ consent is freely given — even when it’s not.

Plessy v. Ferguson, the U.S. Supreme Court decision proclaiming “separate but equal” regarding racial segregation in education, finally gave way to Brown v. Board of Education, acknowledging that separate is not equal. After decades of educational abuse and discrimination against children of color, courts began to end segregation in education.

This is no time for U.S. courts to reinvigorate “separate but equal,” under new guise, segregating those who submit to unlawful EUA testing from those who do not.

CHD and plaintiffs, with counsel James Mermigis and Ray Flores, are considering all legal options. Stay tuned.