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Families want an appeals court to block DeSantis' school mask order

Gov. DeSantis holds
The Florida Channel
Gov. Ron DeSantis' executive order requires that parents decide whether their children wear masks in school.

The families of students with disabilities are seeking an injunction against the governor's executive order while an appeal of a lower-court ruling moves forward.

Attorneys for families of children with disabilities filed a motion Thursday asking the 11th U.S. Circuit Court of Appeals to block an executive order by Gov. Ron DeSantis on school mask requirements.

The attorneys filed a 34-page motion seeking an injunction against the order while an appeal of a lower-court ruling moves forward. The order requires that parents decide whether their children wear masks in school to protect against COVID-19.

In the lower-court ruling, U.S. District Judge K. Michael Moore last month refused to issue a preliminary injunction against DeSantis’ order. But the filing Thursday said children with disabilities are at a “heightened risk of severe illness or death if they contract COVID-19” and can’t safely attend school without district-imposed mask requirements.

The underlying lawsuit contends that the state has violated the Americans with Disabilities Act and another law, the Rehabilitation Act, that protect the rights of people with disabilities.

DeSantis’ executive order and subsequent Florida Department of Health rules were designed to give parents the ability to “opt out” of mask mandates -- though some school districts have refused to go along with DeSantis on the issue.

“The governor’s order unlawfully discriminates against the families (of children with disabilities) by prohibiting local school districts from adopting universal masking mandates as a reasonable accommodation for the families’ disabilities,” Thursday’s motion said. “By requiring schools to give parents and their children an unqualified right to opt out from masking, the governor’s order has removed the one reasonable means that would permit disabled children to attend school without risking their health.”

The motion was the latest development in a series of legal battles in state, federal and administrative courts stemming from the July 30 executive order. DeSantis argues that parents should be able to decide whether children wear masks, and the state Department of Education is pursuing financial penalties against districts that are in violation of the health department rules.

The disabilities lawsuit was filed in August and includes the families of 15 children with a variety of disabilities such as Down syndrome, autism spectrum disorders and chronic kidney disease.

In his Sept. 15 decision rejecting a preliminary injunction, Moore wrote that the plaintiffs should have pursued administrative claims before filing the lawsuit. He said the plaintiffs have different circumstances, requiring “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 plaintiffs filed a notice Monday of appealing Moore’s decision and followed with the motion Thursday seeking an injunction against the executive order while the appeal is pending. The motion took issue with Moore’s ruling that plaintiffs should have exhausted administrative remedies before filing the lawsuit.

“The families do not challenge the quality of their children’s education at their public schools,” the motion said. “They instead seek a reasonable accommodation that permits their disabled children to safely enter their schools. Every other federal court to consider a similar claim by disabled students against a universal masking bar in schools during COVID-19 has found that the claims do not require exhaustion.”

If the Atlanta-based appeals court does not grant the injunction, attorneys for the families asked that it “expedite” briefing and arguments in the case.

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Jim Saunders is the Executive Editor of The News Service Of Florida.