News Photo by Julie Riddle Judge Ed Black on Friday speaks to an attorney in a hearing regarding a lawsuit against Alpena Public Schools in Alpena's 26th Circuit Court.

ALPENA — Alpena schools can continue requiring students to mask, at least for now, a judge ruled on Friday.

A parent group called Freedom to Breathe asked Judge Ed Black to make Alpena Public Schools stop requiring students to wear facemasks while a lawsuit challenging the school district’s mask mandate makes its way through court.

Black on Friday dismissed that motion, saying the group can strengthen its argument and try again.

About 30 teenagers and adults and several children attended a hearing Friday in Alpena’s 26th Circuit court, in which Black heard arguments from both sides.

The parent group’s attorney did not prove the parent group had reasonable hope of succeeding in its lawsuit, nor that allowing APS to continue their policy in the interim would endanger students at this time, Black said.

Some of the group’s arguments, if restated, could convince the court that school masking policies violate state codes, Black told the attorney.

The group will amend and resubmit their request for an injunction, Freedom to Breathe attorney David Delaney said.

The Freedom to Breathe lawsuit does not ask the court to decide whether masks stop COVID-19, but to evaluate whether schools have a right to make students wear them, Delaney said.

“We’re not COVID deniers,” he said. “We’re not on that train. We’re just looking for authority in the Health Code.”

APS on Sept. 21 required all students, staff, and visitors to wear facemasks during school and at school events. At the time, health officials had reported about 30 confirmed COVID-19 cases among APS staff and students since the start of the school year, and hundreds of APS students transitioned to remote learning or had to quarantine because of COVID-19 exposure, according to court documents.

Freedom to Breathe filed the lawsuit in early October, saying the school lacked the authority to impose such a mandate or to suspend students who failed to follow it.

Delaney said APS suspended the children of several families included in the parent group.

The lawsuit names no families specifically, an issue Black said Delaney will have to address because a suit must specify a victim or victims.

Delaney agreed to share the names of some members of the parent group with APS attorney Robert Jordan, who can verify with APS that the district suspended the students. The court will not make those names public.

Scroll down to watch video from Friday’s hearing in Alpena’s 26th Circuit Court. Story continues below the video.

Freedom to Breathe claims the Public Health Code gives school districts authority to teach about communicable diseases but not to adopt policies addressing them, Delaney told Black on Friday.

That argument probably won’t win the lawsuit, Black told Delaney, saying the group should focus its arguments on the state’s school code, instead.

That state school code prohibits schools from using “any restraint that negatively impacts breathing,” Delaney said, arguing that the rule should apply to facemasks.

Legislators intended the rule to apply to forms of discipline, not to masks designed to protect health, the APS attorney argued.

The language of the rule never makes that distinction, however, Black said.

Scroll down to view an excerpt of the Michigan School Code. Story continues below the document.

Revised School Code Exerpt by Julie Riddle

Delaney said students suspected of any communicable illness should be excluded from the classroom but not suspended.

“The school is supposed to help the sick,” he told Black. “But they’re punishing the possibly sick by suspending them.”

The APS attorney countered that student suspensions resulted from students not obeying school rules, not from a suspicion they were sick.

Jordan, on behalf of the school district, said the state grants schools the right to create policies that protect the safety and welfare of their students, from providing in-school health clinics to stopping dangerous behavior on the playground.

The school does not have authority to regulate students’ health, but, “they have to be able to determine when the student body is in danger,” Jordan said.

To temporarily stop APS from enforcing its facemask policy, Black would have to believe the lawsuit, as presented, stood a reasonable chance of succeeding. At this time, he was not convinced, Black said.

The judge granted Freedom to Breathe an opportunity to amend its motion for an injunction. Delaney plans to submit that amended paperwork within two weeks, with a greater emphasis on the points Black called their better argument.