Florida parents push back against state's attempt to dismiss lawsuit challenging ban on school mask mandates

TALLAHASSEE, Fla. - With a judge set to hear arguments Thursday, attorneys for a group of Florida parents are pushing back against the state’s attempt to scuttle a lawsuit challenging Gov. Ron DeSantis’ efforts to prevent mask mandates in schools.

In a 28-page court document filed Tuesday, the parents’ attorneys wrote that the governor’s power "is not absolute; it is limited by the Florida Constitution" and said the lawsuit against DeSantis, the State Board of Education, the state Department of Education and Education Commissioner Richard Corcoran should not be dismissed.

The lawsuit centers on an executive order that DeSantis issued July 30 aimed at preventing school districts from requiring that students wear masks amid the COVID-19 pandemic. The parents, who are from various parts of the state, contend the order violates the Florida Constitution, including a requirement for providing "safe" and "secure" public schools.

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"The effect of the executive order renders schools unsafe by leaving school boards without the means to enact safety procedures to mitigate the spread of COVID-19," the document said. "No child has died from the onerous obligation to wear a mask while indoors at a school; however, children have died from contracting COVID-19."

Leon County Circuit Judge John Cooper is scheduled Thursday to hold a hearing on the state’s request to dismiss the lawsuit, which was filed Aug. 6. In part, the state contends that DeSantis’ executive order and an associated rule are policy decisions and that rejecting them would violate the constitutional separation of power between the executive branch and the judiciary.

"The executive order and the rule were implemented after balancing the legitimate state interests of school safety and parental rights," attorneys for the state wrote Monday in a motion to dismiss the case. "Although plaintiffs may disagree with the governor’s policy decision, the court lacks the authority to elevate plaintiffs’ policy decision and impose it upon the entire state. The governor, as the public official duly elected by the majority of the citizens of the state of Florida, was entrusted with the sole authority to make such statewide policy determinations --- not the parent plaintiffs and not a court."

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The lawsuit is playing out amid controversy in many parts of Florida about whether students should be required to wear masks as the delta variant of the coronavirus has caused COVID-19 infections to soar. The State Board of Education on Tuesday threatened penalties against school officials in Alachua and Broward counties who want to require doctors’ notes before students can opt out of mask requirements.

DeSantis, Corcoran and other backers of the executive order contend that parents should be able to decide whether children wear masks.

The attorneys for the state argued in their motion to dismiss that the issues in the case are a "political" question. They also cited a 1st District Court of Appeal ruling last year that rejected a lawsuit spearheaded by the Florida Education Association teachers union. That lawsuit challenged an order by Corcoran aimed at requiring schools to reopen campuses amid the pandemic.

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"The First District Court of Appeal has already concluded that whether a school policy regarding precautions during a pandemic is ‘safe’ and ‘secure’ is a political question that lacks a judicially manageable standard and relies upon policy determinations that should be left to the executive branch," Monday’s motion said. "Plaintiffs’ claims (in the mask case) similarly present a non-justiciable political question and therefore must be dismissed."

But in disputing the state’s arguments to dismiss the case, the parents’ attorneys wrote that children "face a real threat every day of becoming seriously ill due to COVID-19, and they have an imminent harm."

"The opportunity cost of mandatory masking in schools is nominal inconvenience," the document filed Tuesday by 10 attorneys said. "The opportunity cost of schools without mandatory masking --- sick and dead children --- is quickly becoming our reality in Florida. The idea that the factual issues before this court amount to ‘parent choice’ is nothing more than pretext for the clear public health crisis that is COVID-19."

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