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Judge Clears Way For Lawsuit Over Florida School Mask Order

 Mask protesters holding signs outside school board meeting
Anti-mandate advocate Heather Tanner, right, tries to persuade Mary Tereilleger, who teaches 3-year-olds in Broward County’s Head Start program, that students do not need to wear masks when they return to school next week. This during a protest outside of a Broward County School Board meeting in Fort Lauderdale on Tuesday, Aug. 10, 2021, to discuss a possible mask mandate.

A legal battle over Gov. Ron DeSantis’ attempts to prevent school mask mandates will go ahead next week after a circuit judge refused to dismiss the case Thursday.

A legal battle over Gov. Ron DeSantis’ attempts to prevent school mask mandates will go ahead next week after a circuit judge refused to dismiss the case Thursday.

Attorneys for a group of parents are challenging a July 30 executive order by DeSantis that seeks to prohibit county school boards from requiring students to wear masks. The lawsuit, in part, alleges that the executive order violates a section of the state Constitution that requires providing a “uniform, efficient, safe, secure and high quality system” of public schools.

Leon County Circuit Judge John Cooper said Thursday that the attorneys “sufficiently” proved that the parents have standing to bring the case. He pointed to parents’ arguments that their children are too young to get vaccinated against COVID-19. Cooper also cited a heightened risk to children from the highly contagious delta variant of the coronavirus.

“If you’re not vaccinated, and you are in a class that can catch it --- which the allegation is that this COVID variant includes children --- then without masking, distancing, other things, you’re deprived of an ability to protect yourself against COVID infection, in particular for younger, unvaccinated children,” Cooper said.

Michael Abel, an attorney representing the state, contended that the governor and top education officials took into account the risks associated with the delta variant in crafting the executive order. DeSantis’ order resulted in a state health department rule that requires parents to be allowed to opt out of mask requirements.

“The risk factors, particularly when it comes to the governor’s executive order, and when it comes to the Department of Health’s regulation, have been assessed. And determinations have been made that balance, in the view of the executive branch, safety and health,” Abel said.

DeSantis, Education Commissioner Richard Corcoran, the Florida Department of Education and the State Board of Education are named as defendants in the lawsuit.

In seeking to have Cooper dismiss the case, attorneys for the state also argued that the parents raised a “political” question over whether the state policy adequately provides safety in schools.

Abel said during Thursday’s hearing that DeSantis’ executive order didn’t “direct any state action to these individual plaintiffs,” which he said was an underpinning of the state’s argument that the parents lacked standing to bring the lawsuit.

Instead, Abel contended that DeSantis’ order directed Corcoran to ensure school districts follow state law, including a new law known as the “Parents’ Bill of Rights” that deals with parents’ ability to control health and education decisions for their children.

But Charles Gallagher, an attorney representing the parents, called DeSantis’ order “executive overreach” and characterized the lawsuit as seeking to allow county school districts to have “their own fate in their own hands” and enact mask policies.

“We don’t seek relief in this case to have any reforming or revision of that order. We seek to have the executive overreach in this order checked and declared unconstitutional,” Gallagher said.

Lawyers for the state argued that the lawsuit is “most analogous” to a 2020 lawsuit filed by the Florida Education Association, which sought to block requirements that schools open for in-person instruction during the pandemic. The 1st District Court of Appeal sided with the state and rejected the teachers union’s arguments.

But attorneys for parents in the mask case argued that their complaint is more “targeted” and “narrow,” asserting that it deals with a pressing health issue about wearing masks as the delta variant is more harmful to children.

“Right now, the numbers are belying any kind of argument that COVID delta is not affecting kids, unlike last year when COVID alpha was not quite as severe,” Gallagher said.

Cooper will begin hearing evidence in the case Monday, and the judge is expected to make a ruling by Wednesday at the latest.

“These parents and children, they have a right to have their case heard in court,” Cooper said Thursday.

Five school districts as of Thursday had enacted mask mandates that allow exceptions only for medical reasons. The Alachua, Broward, Miami-Dade, Palm Beach and Hillsborough districts made the decisions despite heavy pressure from the state Board of Education, which contends that requiring medical reasons goes against the state rule.

The state board this week directed Corcoran to further “investigate” dissenting school districts. The board is eyeing financial penalties for the school districts, and even floated the idea that school officials could be removed from their posts if they don’t reverse course and comply.

DeSantis criticized the Hillsborough school board’s decision Wednesday to approve a 30-day mask mandate.

“What they voted to do, they had allowed the parents to make the decision and have an ability to opt out. And that’s how school started. They reneged on that, and basically took the decision out of the parents’ hands,” DeSantis said Thursday.

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Ryan Dailey / News Service of Florida