Legal filings take aim at school mask mandate ban

Two legal complaints filed Friday are asking separate courts to strike down Gov. Ron DeSantis’ recent executive order and a health rule that allows for parents to opt their children out of wearing face masks when school starts on Tuesday.

The executive order known as “Ensuring Parents’ Freedom to Choose – Mask in Schools” went into effect on July 30. It states that forcing students to wear masks “lacks a well-grounded scientific jurisdiction” and “may lead to negative health and societal ramifications.”

The order also asserts that there is “no statistically-significant evidence to suggest that counties with mask requirements have fared any better than those without” and threatens the loss of some state funding for districts that implement mask mandates. Last week, the Alachua County School Board did just that, voting unanimously to have students wear masks the first two weeks of school

In a complaint filed in the Circuit Court of the Second Judicial Circuit in Leon County on Friday, parents representing 15 minors who attend schools in Miami-Dade, Orange, Palm Beach, Hillsborough, Pinellas, and Alachua counties question the order “based on their rights under the Florida Constitution.”

The complaint says precluding county school boards from enacting mandatory masking means “the Emergency Order will cause further spread of the COVID-19 virus to Plaintiffs, their families, and the general public. Further, the Emergency Order fails to consider unique local circumstances, resources, and health data, as required by health experts.” 

The complaint cites Article 9, Section 4 of the Florida Constitution, which establishes home rule rights: “The school board shall operate, control and supervise all free public schools within the school district. As such, local school boards, elected by local citizens, have the power to operate, control and supervise public schools in the district under home rule powers.”

The complaint goes on to state that DeSantis’ order “wrongfully assumes that the state authorities can better determine the local health risks and educational needs of the students and teachers than the local officials that were elected for that purpose.”

Attorney and co-counsel for the plaintiffs Charles Gallagher III of St. Petersburg said the immediate goal of the complaint is to have a judge determine the executive order is dangerous.

“The order itself creates a risk,” he said in a phone interview. “The caveat is the delta variant. Kids are getting it and in the hospital. The injunction will preserve the status quo and strike the order which will allow schools to do what they need to.” 

Gallagher also wants the judge to declare a Florida Department of Health emergency rule a violation of local school boards’ home rule ability to mandate face masks without opt-outs.

On Friday, Florida State Surgeon General Scott Rivkees—a former professor at UF’s College of Medicine—signed the emergency rule, which states that it is aligned with the executive order’s goal “to ensure safety protocols for controlling the spread of COVID-19 in schools that (1) don’t violate Floridians’ constitutional freedoms; (2) do not violate parents’ rights under Florida law to make health care decisions for their minor children and (3) protect children with disabilities or health conditions who would be harmed by certain protocols, such as face masking requirements.”

The rule says schools must allow parents to opt-out from wearing facial coverings, which the complaint seeks to stop.

“This rule is contrary to the CDC’s and the American Academy of Pediatrics’ standards of mandatory masking and does not create a safe school environment in the present COVID-19 pandemic,” the complaint states, noting that the Florida Constitution requires public officials to “ensure that Florida’s schools operate safely.”

Americans with Disabilities Act

In a second complaint filed Friday, two Miami-based lawyers are seeking federal injunctive relief from the United States District Court for the Southern District of Florida. The complaint names DeSantis, Education Commissioner Richard Corcoran and school boards in Miami-Dade, Hillsborough, Palm Beach, Broward, Pasco, Volusia and Alachua counties as defendants.

The complaint argues the executive order violates the Americans with Disabilities Act and students’ right to safely return to brick-and-mortar schools. 

“By refusing to allow school districts to implement mask mandates, Governor DeSantis has placed an illegal barrier for students with disabilities which is preventing our state’s most vulnerable students from returning to public schools,” the complaint states. “By its actions and inactions, the Governor and the State are forcing children out of the public school system.”

Even though Alachua County Public Schools is mandating masks for staff and faculty indefinitely and for students during the first two weeks of school, the complaint states that two weeks of a mandate is not enough.

One of the parents involved in the case is Kristen Thompson, an Alachua County resident. She is named in the complaint because her 7-year-old child (called “P.T.” in the filing) lives with Trisomy-18, also known as Edwards syndrome, which causes developmental delays.

As a result, P.T. has a tracheostomy, an opening at the front of the neck for a tube.

The complaint states that because of this, P.T.’s doctors have told Thompson that it is too dangerous to return to in-person school without mandatory face masks and other precautions recommended in the CDC’s guidelines.

“I feel like our county has done almost everything right,” Thompson said in a phone interview on Sunday. “There’s only so much we can do other than keeping kids home from school.”

Thompson said she is concerned that the therapists working with her child travel throughout the school district visiting many different classrooms and, if all students are not wearing face masks, whoever the therapists come in contact with could be a potential exposure with the more contagious delta variant.

“It takes two people wearing masks to prevent the spread,” she said.

Thompson’s child cannot wear a mask because her developmental disability prevents her from understanding its purpose and she pulls them off.

“We tried having her wear a mask, but she won’t,” Thompson said. She believes the opt-out for face masks should only be available for “kids who truly cannot wear masks and have a true medical condition or developmental disability.”

With the first day of school approaching this week, Gallagher acknowledged that there is a limited window for the courts to provide injunctive relief. Once the defendants receive the complaint, they will have time to respond. Gallagher said even if the motions are filed on Monday or Tuesday, a hearing may not take place until the end of the week after school has started.

“We’ll be asking for an emergency hearing,” he said. “There’s not one day we can waste.”

At a press conference last Thursday, DeSantis expressed optimism that the executive order would survive the coming legal challenges because of the recently enacted Parents’ Bill of Rights law, which recognized parental rights related to education, upbringing and health care. 

“We believe the Parents’ Bill of Rights was a good bill to sign, and we believe that because the Legislature passed that, providing parents with this choice [on masks] flows directly from that—and we think we’ll win [in court],” DeSantis said.

Ken Cornell, Alachua County Board of County Commissioners (BOCC) chair, said he is watching the filings closely because they parallel the preemptive executive orders from DeSantis that prevent counties and cities from mandating face masks.

The key argument is that just like school boards in Florida, the duly elected BOCC has a constitutional duty to serve the voters who put them in office to establish policy that includes ensuring public safety. He said DeSantis has blocked the BOCC’s ability to act in the best interest of the constituents.

“We have a constitutional duty to protect public health and ensure public safety,” Cornell said. “I’m certain that the governor’s executive order’s and the recent legislation cannot prevent us from doing this. We’re looking at it.”

Editor’s note: This story has been updated.

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