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Florida Department Of Health Faces More School Mask Challenges

 Students wearing masks cross in front of a school bus at Carrie P. Meek/Westview K-8 in this Oct. 5, 2020 photo.
The governor issued an executive order July 30 that says the decision about masks should be left up to parents.

The Miami-Dade County School Board, the NAACP and other parties say the department did not have a legal basis for a rule aimed at preventing district mask mandates.

The Florida Department of Health faces two more challenges over a rule aimed at preventing school mask mandates, with the Miami-Dade County School Board, the NAACP and other parties saying the department did not have a legal basis for the rule.

The challenges were filed Tuesday in the state Division of Administrative Hearings and are similar to a case filed Friday by the school boards in Alachua, Broward and Orange counties.

In part, the challenges contend the Department of Health overstepped its legal authority last month in issuing the emergency rule, which was an outgrowth of efforts by Gov. Ron DeSantis to prevent schools from requiring students to wear masks during the COVID-19 pandemic.

The cases also argue that the rule is “arbitrary and capricious” and goes against the department’s role in preventing the spread of diseases.

“Rather, the emergency rule is facilitating the spread of COVID-19 by banning masks in public schools,” said one of the challenges, filed by the Florida State Conference of the NAACP, the Florida Student Power Network and several families.

The challenges also take aim at an argument by DeSantis and other state officials that their position on preventing mask mandates is backed by a new state law known as the Parents’ Bill of Rights. That law deals with parents’ right to control education and health decisions for their children.

“The codified right to make health care decisions for one’s own minor children does not include the right to place other children and staff at risk of harm, or the right to cause others harm,” attorneys for the Miami-Dade County School Board wrote.

The rule, in part, allows parents to opt-out of requirements that students wear masks. But with the delta variant of the coronavirus causing a major surge in COVID-19 cases during the past two months, several school boards have bucked the rule and required students to wear masks unless they have documented medical reasons.

DeSantis issued an executive order July 30 to try to prevent schools from requiring students to wear masks, arguing that the decision about masks should be left up to parents. The Department of Health followed up Aug. 6 by issuing the rule.

During an appearance Wednesday in Flagler County, DeSantis reiterated his position on giving choices to parents.

“I don't know why the masks have politics around it,” DeSantis said. “Let the parents make the decision that's best for their kids. If you want the masks, do it. If you don't, don't, that's fine.”

Education Commissioner Richard Corcoran has pursued financial penalties for districts that require parents to provide medical reasons for opting out of mask requirements. Those financial penalties involve the state withholding amounts of money equal to school board members’ salaries.

A key issue in the challenges filed at the Division of Administrative Hearings could be a law that the Department of Health cited as a basis for the rule. That rule deals with immunization of children against communicable diseases.

But attorneys for the school boards and the NAACP and other parties contend that the mask rule does not involve immunizations and, as a result, the department overstepped its legal authority.

“To be clear, the offending portion of the emergency rule does nothing to ‘control communicable diseases,’” the attorneys for the NAACP, the Florida Student Power Network and families wrote, partially quoting the law. “On the contrary, it promotes the spread of communicable disease.”

In addition to the cases filed at the Division of Administrative Hearings, the attempts to prevent mask mandates have drawn lawsuits in state and federal courts.
Leon County Circuit Judge John Cooper ruled that DeSantis overstepped his constitutional authority with the executive order, a ruling that the administration has appealed. Cooper on Wednesday lifted an automatic of his ruling during the appeal process.

Also, U.S. District Judge K. Michael Moore held a hearing Wednesday in Miami in a case in which parents argue that DeSantis’ order violates the rights of children with disabilities under the Americans with Disabilities Act and two other federal laws.

The parents are suing DeSantis, Corcoran, the Department of Education, and the school boards of Miami-Dade, Broward, Palm Beach, Alachua, Hillsborough, Orange, Pasco and Volusia counties. A ruling is expected this week.

News Service staff writer Jim Turner contributed to this report.

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