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Federal judge refuses to block DeSantis mask order

Federal Judge K. Michael Moore wrote Wednesday that the plaintiffs should have pursued administrative claims before the lawsuit.
Governor Ron DeSantis listens as Education Commissioner, Richard Corcoran answers a reporter’s questions at High Point Elementary School, Tuesday, September 14, 2021 in Clearwater.
Governor Ron DeSantis listens as Education Commissioner, Richard Corcoran answers a reporter’s questions at High Point Elementary School, Tuesday, September 14, 2021 in Clearwater. [ MARTHA ASENCIO-RHINE | Times ]
Published Sep. 15
Updated Sep. 16

TALLAHASSEE — A federal judge Wednesday rejected a request by parents of disabled children to block Gov. Ron DeSantis’ efforts to prevent school districts from requiring students to wear masks during the COVID-19 pandemic.

Federal Judge K. Michael Moore issued a 34-page ruling that denied a request for a preliminary injunction against an executive order that DeSantis issued July 30. The executive order led to the Florida Department of Health issuing a rule that required districts to allow parents to opt out of any student mask mandates.

The lawsuit, filed in federal court in Miami, contends that the executive order violated the Americans with Disabilities Act and other laws designed to protect the rights of students with disabilities.

But Moore wrote Wednesday that the plaintiffs should have pursued administrative claims before the lawsuit. Such administrative claims, he wrote, are required under a federal law known as the Individuals with Disabilities Education Act, or IDEA.

Moore said plaintiffs in the case have different circumstances, demonstrating “that there are unique problems facing plaintiffs, which require unique solutions.”

“The court finds all plaintiffs would be substantially benefited by pursuing administrative remedies that can provide tailored solutions to each child’s individual needs,” Moore wrote.

The ruling was a victory for DeSantis and state education officials who have faced challenges in state and federal courts while contending that parents should be able to decide whether children wear masks in schools. The state has threatened the salaries of school officials who do not comply with the Department of Health rule, but some districts have bucked the state and are only allowing students to opt out of mask requirements if they have doctors’ notes.

In the federal case, attorneys for the parents contend that the executive order violates disabilities laws, in part, because children with disabilities are more susceptible to serious illness or death from COVID-19.

“In refusing to allow school districts to implement commonly accepted protections for these children, such as a mask requirement, the Florida governor and his executive departments have essentially excluded them from the public schools and made parents of children with disabilities have to choose between their child’s life and health, and the rights of other parents who do not want their children to be told they must wear a piece of cloth on their face,” the parents’ attorneys wrote in a court document.

In a statement Wednesday to The News Service of Florida after Moore’s ruling, plaintiffs’ attorney Matthew Dietz said he believed the judge “misconstrued” a U.S. Supreme Court decision about the exhaustion of administrative remedies in cases involving children with disabilities.

Since it takes at least 75 days for administrative preconditions to be exhausted in Florida, Moore’s decision “essentially blocks all children with disabilities who would be seriously injured or die if they became infected with COVID-19 from being able to return safely to their school,” Dietz said.

“We are disappointed in the decision of the court and are evaluating our options at this point,” Dietz said, adding that he “would hope and expect” federal education officials and the U.S. Department of Justice will weigh in “on the rights of children with disabilities to be safely integrated into their local schools.”

Pointing to potential effects on students with disabilities, the U.S. Department of Education’s Office of Civil Rights has said it is investigating Florida and other states that have sought to prevent schools from requiring student masks.

By Jim Saunders and Dara Kam