Florida faces more legal battles over school masks

Gov. Ron DeSantis’s effort to prevent Florida schools from issuing blanket mask mandates is continuing to draw legal challenges.

Friday’s ruling by a Leon County circuit judge who said the governor had overreached appears to be just the start of a court fight that could play out on many fronts.

The challenges are expected to keep coming in state and federal courts as school boards in several counties have asked their attorneys to explore all avenues to protect their authority to adopt policies they find in the best health interest of students and staff.

“There will be more,” said Ed Guedes, a Coral Gables lawyer representing the Miami-Dade County school district in its latest effort to fight the state rules.

Guedes on Friday asked the state’s 3rd Circuit Court of Appeal to review an issue that the Leon County case did not touch — the validity of the Aug. 6 Department of Health emergency rule that requires schools to include an opt-out clause in any mask rules they adopt. The Department of Education has used the rule in its attempts to keep 10 districts, including Hillsborough County, from imposing mask mandates.

The Leon County judge, John C. Cooper, said he could not tackle the rule because the Department of Health was not included in the case before him.

The Miami-Dade district is questioning whether the health department complied with state laws for rule making.

“Our contention is there was no basis at all for them to have enacted their rule on an emergency basis,” Guedes said.

The reason for the rule, the state said, was “an immediate danger to the public health” — not from the summer spike in coronavirus cases but from the possibility that school districts might “violate Floridians’ constitutional freedoms” by requiring students to wear masks.

In an interview, Guedes said the Department of Health is supposed to be the agency dealing with communicable disease and regulating health matters, yet its rule offered only suggestions on how to quarantine and related issues.

“It doesn’t really pass the straight face test,” he said.

The Department of Health did not respond to a request for comment.

The district’s challenge came shortly after education commissioner Richard Corcoran sent Miami-Dade and seven other school systems letters threatening to withhold funding equal to school board members’ salaries if they do not change their mask mandates to include parents’ right to choose.

It did not include a challenge to the Department of Education’s enforcement effort. Guedes said a separate filing on that aspect could come in the next couple of days.

A Florida case in federal court, meanwhile, moved ahead with additional arguments being filed in anticipation of quick action by Judge K. Michael Moore of the Southern District of Florida.

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Lawyers for a group of parents suing over the educational rights of their children with disabilities on Monday asked Moore to take note of Judge Cooper’s findings in Leon County to bolster their case against the ban on mask mandates.

In reading his ruling Friday, Cooper took aim at the governor’s use of the newly passed “Parents’ Bill of Rights” law to justify his emergency order banning school mask mandates. The judge said DeSantis did not heed part of the law that allows school boards to enact policies as long as they are reasonable, address a compelling state interest, are narrowly tailored, and are the least restrictive way of dealing with an issue.

Miami-based lawyer Matthew Dietz said he was particularly interested in Cooper’s statements supporting the efficacy of masks in slowing the spread of COVID-19 in schools. Dietz said those findings could bolster some of his arguments that the children he represents face imminent health risks if they attend classes under the state’s requirement.

Cooper’s order was expected to be finalized Tuesday, to be followed quickly by a state appeal.

The Department of Education did not respond to requests for comment.

Lawyers for the department filed a response to the families’ initial complaint by the Aug. 24 deadline. They argued the plaintiffs, who include parents from Hillsborough and Pasco counties, do not have standing to bring the lawsuit. They also contend the parents did not exhaust all their options under the federal students with disabilities law before seeking a court remedy.

Dietz countered that the state’s focus on process and standing ignored the bigger picture.

“The continuing pressure on the School Districts to violate the rights of children with disabilities is an injury to these parents and children,” he wrote, citing the Americans with Disabilities Act. He also contended that the state is improperly penalizing school districts with “a barrage of civil litigation” that violates the “retaliation provisions” of the law.

The Biden administration has said it would look into complaints such as this one as families bring them forward.

But Florida did not come under increased scrutiny by the U.S. Department of Education on Monday, when it announced investigations into five states — Iowa, Oklahoma, South Carolina, Tennessee and Utah — that also have prohibited universal indoor masking of students in schools.

The department’s Office of Civil Rights did not launch reviews in Florida, Texas, Arkansas, or Arizona “because those states’ bans on universal indoor masking are not currently being enforced as a result of court orders or other state actions.”

The department stated it will continue to monitor Florida and is “prepared to take action” if state leaders refuse to allow universal mask mandates or if the court rulings are overturned.

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