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DeSantis lawyers try to dismiss federal school mask case; ruling to come soon

State says parents’ complaints don’t belong in court. Plaintiffs say governor’s ban on mask mandates makes school unsafe for disabled kids.
Students from Sunlake High listen to instructions in algebra class on Aug. 10, the first day of school in Pasco County. The Pasco district's voluntary mask policy is at issue in a federal lawsuit that challenges Gov. Ron DeSantis' ban on mask mandates. Two families from Hillsborough County are also among the plaintiffs.
Students from Sunlake High listen to instructions in algebra class on Aug. 10, the first day of school in Pasco County. The Pasco district's voluntary mask policy is at issue in a federal lawsuit that challenges Gov. Ron DeSantis' ban on mask mandates. Two families from Hillsborough County are also among the plaintiffs. [ DOUGLAS R. CLIFFORD | Times ]
Published Sep. 9

MIAMI — A Miami federal judge Wednesday heard arguments from a lawyer for Gov. Ron DeSantis seeking to dismiss a lawsuit filed by parents of children with disabilities who sued the state over his executive order prohibiting school districts from mandating students wear masks to protect against COVID-19.

The lawyers for the 12 parents, whose children go to school in eight school districts across the state, including Miami-Dade, Broward and Palm Beach, argue the children’s disabilities put them at particular risk of becoming ill or dying from COVID-19 if any of their peers attend school in-person without facial coverings.

“If students with disabilities cannot go to school safely, then no one can go to school safely,” Miami attorneys Matthew Dietz and Stephanie Langer wrote in the lawsuit, filed on behalf of the parents on Aug. 6 in Florida’s U.S. Southern District Court in Miami.

DeSantis, Corcoran, districts sued

The parents are suing DeSantis, Florida Education Commissioner Richard Corcoran, the Florida Department of Education, and the school boards of Miami-Dade, Broward, Palm Beach, Alachua, Hillsborough, Orange, Pasco and Volusia counties.

Judge K. Michael Moore could make a decision on the state’s motion to dismiss before the end of the week.

The case is one of several revolving around DeSantis’ July 30 executive order.

Thirteen of the state’s 74 public school districts, including Miami-Dade and Broward, defied the governor and the state’s Department of Education by requiring facial coverings with the only exemption coming from a doctor’s note. (The 74 districts represent one for each of the state’s 67 counties, plus one each for four research schools, one for the school for the deaf and blind, one for Florida’s virtual school and one for the youth development center. )

The Wednesday hearing came the same day a Leon County judge ruled the 13 districts could continue enforcing their mandates while the DeSantis administration appeals the judge’s ruling from last month. In that order, which went into effect Sept. 2, Leon County Circuit Court Judge John C. Cooper ruled the governor, the Department of Education and State Board of Education acted “without legal authority” because they selectively chose only parts of the Parents’ Bill of Rights law to enforce.

The state argues that the Parents’ Bill of Rights, which went into effect on July 1, stipulates that parents have “fundamental rights” to make health and educational decisions on behalf of their children.

Withholding state funds of the districts

The Florida Department of Education has already withheld state funds equivalent to the monthly salaries of school board members of Broward and Alachua counties, the two school boards that first enacted the mandates.

Dietz and Langer argue, however, that the state, in withholding funds from the districts, has violated the federal Americans With Disabilities Act, the Individuals with Disabilities Education Act and parts of the Rehabilitation Act.

“Governor DeSantis does not have the authority to interfere with these children’s rights under the Supremacy of the United States Constitution,” according to the suit.

Dietz told the Miami Herald that the eight school districts are included in the lawsuit for procedural reasons because they “are the entities that would directly implement the governor’s executive order and regulations.”

“Because the governor is attempting to enforce the order and regulations on these districts and the board members, it places my kids in continual danger of the rules changing until he is required to stop. He has accused them of breaking the law,” Dietz said.

Of the eight school districts being sued, the only district without a mask mandate is Pasco County.

Rising COVID cases in schools

Since students returned to class Aug. 18 in Broward County, 637 students and 279 schools employees have tested positive for the novel coronavirus, according to the district’s online dashboard tallying daily cases.

Miami-Dade began the school year Aug. 23. Since then, 211 students and 188 staff members have tested positive for the virus, according to the district’s dashboard.

Rocco Testani, the attorney representing the state, told Moore the plaintiffs’ complaints mainly revolve around dissatisfaction with their virtual learning options at their individual schools, which he said has no connection to DeSantis’ order.

“The problem they are identifying is not traceable to the governor’s executive order,” Testani said.

He said that the children’s parents must exhaust all administrative remedies with their children’s schools before taking the matter to court.

He also argued to dismiss the case under grounds of “futility” since the parents “are not going to get everything they want” through the courts or the administrative process.

Dietz, however, countered that because all students may not be required to wear masks for the entire school year, the plaintiffs’ children are not guaranteed to be safe if they return to in-person learning.

Therefore, the only relief they can expect is through the court stopping DeSantis from enforcing his mask mandate ban.

“The defendant says you have to go through the process even if you can’t get what you want in the end,” Dietz said. “That’s the definition of futility.”