Tampa Bay families join lawsuits over DeSantis school mask order

Eren Dooley faced a problem as the first day of school arrived this week.

Her 10-year-old daughter, who attends elementary school in southern Hillsborough County, has asthma severe enough that contracting the coronavirus could cause a major medical situation.

“Her pediatrician said if we can’t get everyone in school in masks, she can’t go,” Dooley said.

At the same time, she suffers anxiety that can be equally triggered by staying home and being isolated, and by being in school without everyone wearing a mask.

“We’re in a hot mess situation,” said Dooley, who kept her daughter home sick as classes resumed Tuesday — and is angry at the state for its role in her plight.

She is one of several Tampa Bay area parents who have joined lawsuits challenging the orders and threats from Tallahassee that have prevented schools from implementing full mask requirements. Both actions target what lawyers contend is Gov. Ron DeSantis’ overreach in forcing his views about masks onto all public schools in Florida.

Attorneys for the Pasco and Hillsborough county school districts, which are listed as defendants in a case filed in Miami federal court, said they had no comment on pending litigation. The Florida Department of Education, a defendant in both lawsuits, did not respond to a request for comment.

One case, brought in Leon County circuit court by St. Petersburg attorney Charles Gallagher, focuses on aspects of the state Constitution he argues the state ignored with its edicts. The primary issue in that lawsuit centers on the constitutional provision that the state must provide “a uniform, efficient, safe, secure, and high quality system of free public schools.”

The governor’s order “impairs the safe operation of schools,” Gallagher wrote in his brief.

He further noted that the order takes away local school boards’ constitutional authority to “operate, supervise and control” schools within their districts.

“They’re allowed to govern themselves,” Gallagher said. “They have elected officials for a reason.”

Plaintiffs in that case include three Hillsborough and two Pinellas County families. One of them is Hillsborough activist Damaris Allen.

“I’m concerned about the health and safety of all our kids, not just mine,” Allen said. “I’m also concerned about overreach and the ability of local governments to make local decisions.”

She questioned DeSantis’ repeated support of parents making choices whether their children should wear masks. She argued that the families seeking to protect themselves from the virus’ spread should not be at the mercy of those who do not follow the recommendations of health experts.

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“I don’t understand the allegiance to this idea of parental choice, because it’s really not parental choice when you’re taking away my choice to protect my children,” Allen said. “It’s elevating one parent’s choice over another.”

Amy Nell, whose child is in fifth grade in Tampa, also joined the Leon County lawsuit. She sent her child back to in-person classes last spring after determining that masks and social distancing were keeping the coronavirus at bay.

In the first few days of the new school year, with a more contagious version of the virus in play and no full mask mandate in place, she said Thursday that she no longer has that sense of security. In three days, she got calls daily with alerts that 10 positive cases had been identified on her child’s campus.

Districtwide, about 2,900 students and 280 staff members had been isolated or quarantined over the first two days, she said she learned from a public records request.

“I don’t feel like we as parents who are doing the most to protect the community should be penalized for having rational decision-making,” Nell said. “I can’t do nothing when the health of my child is at risk.”

The other lawsuit, filed in federal court in Miami, includes two families from Hillsborough, including Dooley, and one from Pasco County.

It focuses on the federal education rights of students with disabilities. They are guaranteed a free public education in the least restrictive environment possible.

That protection is not subject to others’ personal preferences on issues such as masks, said Matthew Dietz, the Miami attorney leading that case.

“There is no protected right to put others at danger,” he said, adding he looked forward to reading the state’s legal arguments for creating a system with no mask requirement and no online option as an alternative to in-person education.

“There’s tens of thousands of children at risk because of this,” Dietz said. “Politics should not be on the backs of children with disabilities.”

Dooley shared that perspective. When COVID-19 was affecting children less, she said, schools required masks and the virus had little community spread.

Now the situation is worse and the restrictions are gone, without consideration for all that has changed, she suggested.

“We are just blindsided by this stuck-in-the-mud approach,” Dooley said. Her child “is supposed to have her needs met. They are not meeting them.... That is why we decided to jump in and force the issue. All children are in danger.”

The state case is set to have an initial hearing at 2:30 p.m. Friday. The federal case has responses due from the defense by Aug. 24.

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