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Judge won't throw out school districts' challenge to health department mask rule

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The state asked an administrative judge to toss the challenge by six school boards. The court is slated to hear the case Thursday morning.

An administrative law judge Wednesday rejected a request by the Florida Department of Health to dismiss a challenge by six school boards to a rule that seeks to prevent student mask mandates during the COVID-19 pandemic.

The court is slated to hear the case Thursday morning.

The districts refiled the lawsuit against the Department of Health last month. A previous lawsuit by the districts was dismissed after the department made changes to its rule.

After the original version of the law was issued in August, some districts allowed only medical exemptions to mask wearing. The Sept. 22 revision specified masking is “at the parent or legal guardian’s sole discretion” and gave parents the decision on whether to quarantine children exposed to COVID if asymptomatic.

In trying to get the suit dismissed, attorneys for the Department of Health said the school districts don’t have legal grounds to challenge rules they must follow.

In part, the department cited what is known as the “public official standing doctrine,” contending that the doctrine prevents school boards from challenging laws and rules that they are legally obligated to follow. But Judge Brian Newman rejected the argument.

The Department of Health’s rule is an outgrowth of an executive order by Gov. Ron DeSantis that says parents should have the ultimate say over whether students wear face coverings in school. The order also sought to block school districts from requiring students to wear face coverings.

More than a dozen districts defied that order and made their own policies. Some have backtracked in the wake of financial penalties from the state and declining COVID-19 infections.

Districts in Leon, Miami-Dade, Broward, Orange, Duval and Alachua have not and are suing the state.

"As far as Broward County Public Schools is concerned, we will continue to implement our current face covering policy. Our school board will continue to review that policy at an upcoming meeting because the decision is based on the moment of now and what is occurring on boots on the ground, our local community," Broward schools Superintendent Vickie Cartwright said in September. Her comments were reported by sister station WLRN in Miami.

Leon County schools Superintendent Rocky Hanna believes, even with the rule revisions, the health department is still overstepping its authority.

“They can talk about stopping the spread of the virus and health-related things, but wearing masks and not wearing masks and the parental bill of rights, is out of their purview. We believe they’ve overstepped their bounds in that part of the rule. Then, No. 2, we believe, if you read the parental bill of rights, we’ve acted within it.," he said in a prior interview with WFSU.

Leon recently relaxed its face mask policy, making it voluntary for most students, except for those who have been exposed to COVID and would otherwise be quarantined. Even with those changes, the district is still out of compliance according to the state. Leon board members started having their salaries withheld as of last week.

The mask mandate in Miami-Dade schools could be eased as local COVID infection rates continue their downward trend, Superintendent Alberto Carvalho said this week. He said a decision will be based on data and advice from a task force of local doctors. An easing of the policy would give parents an opt-out provision.

Information from News Service of Florida and the Associated Press was used in this report.

Copyright 2021 WFSU