(CN) — A Florida court on Thursday evening rejected Governor Ron DeSantis' motion to toss out a lawsuit challenging his ban on in-school mask mandates.
Leon County Circuit Judge John Cooper ruled that the plaintiffs can move forward with their case, which alleges that DeSantis is needlessly compromising children's safety by prohibiting on-campus mask mandates amid a Covid-19 outbreak.
DeSantis handed down the executive order July 30. It imposes penalties on school districts if they do not give parents the final say on whether their children wear masks in school.
The plaintiffs, a group of concerned parents, sued DeSantis and the Florida Board of Education Aug. 6, claiming the governor's action violates a state constitutional clause that provides for a "uniform, efficient, safe, secure and high quality system of free public schools."
The Leon County judge on Thursday found that the plaintiffs have standing to sue after sufficiently pleading a link between the governor's action and an increased risk of contracting Covid-19. The judge made note of the high transmissibility of the coronavirus delta variant, while pointing out that some of the plaintiffs' children are under 12 years old and therefore ineligible for vaccination.
"These parents and children — they have a right to have their case heard in court," Judge Cooper said.
The judge added that although online classes are available in Florida in lieu of on-campus learning, many parents are unable to pursue that option for their children due to daily job obligations and financial constraints. The plaintiffs have meanwhile argued that enrolling in online classes through the Florida Virtual School program could result in students losing their spot at magnet schools.
The case will now proceed to evidentiary hearings starting Aug. 23. The judge deferred any factual rulings on the case until then.
The parents' attorney Charles Gallagher said in a phone interview that the "cost of wearing masks is potential inconvenience," while the "cost of not wearing a mask is potential sickness or death."
"Everyone has turned it into this big parental-choice, political stand, when it's just a simple public health issue," he said. "Wearing a mask in schools is not some kind of forced medical treatment, which is a ludicrous angle that some people have talked about."
DeSantis' counsel declined to comment on the case.
Since early July, the rate of Covid-19-linked deaths reported in the state has risen sharply. In the first week of July, the daily number of reported deaths linked to Covid-19 ranged from 20 to 30 averaged over a weekly basis. In the past week, that figure climbed to more than 150.
The percentage of parents who opted out of mask policies has varied across Florida counties. In Palm Beach County in South Florida, roughly 1 in 25 students had parents who opted them out of wearing masks on campus at the beginning of the school year, according to the local school district. In Central Florida's Seminole County, approximately one in six students were opted out of mask-wearing by their parents, the Orlando Sentinel reported.
On Wednesday, school boards for Miami-Dade and Palm Beach counties voted in favor of removing the parental option on student mask-wearing, according to reports from WPTV and the Miami Herald. Other counties, including neighboring Broward County, have taken similar action in defiance of the governor's order. Miami-Dade, Broward and Palm Beach are Florida's three most populous counties.
Michael Abel, the governor's lawyer, told the court Thursday that it would be "walking squarely into a non-justiciable political question" if it allowed the lawsuit against DeSantis to proceed.
"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 the court," states DeSantis' motion to dismiss, which was up for consideration during the court hearing.
The governor's legal argument was centered largely on the First District Court of Appeals' case law established last year in DeSantis v. Florida Education Association, which tackled some of the same state constitutional language. In that case, a federation of Florida teachers challenged a Department of Education order that incentivized school districts' reopening amid the pandemic by offering more funding to offset budget shortfalls.
The appellate panel wound up siding with the governor in that case.
"Appellees have invited the judiciary to second-guess the executive’s discretionary actions exercising emergency powers during a public health emergency to address the health, safety, and welfare of students in Florida’s public schools. The courts must decline the invitation," the 2020 appellate opinion reads.
During the Thursday hearing, Gallagher countered that the appellate ruling involved broad policy-making evaluations and was therefore inapplicable to his clients' lawsuit.
"This issue here is more targeted and more narrow and surgical in terms of banning mask mandates at the level of school districts," Gallagher argued. "It's not about many, weighty concerns of policy discussions and weighing all kinds of issues regarding reopening schools."
"What we have here is operational overreach. We have a unified decision, by fiat, on the masks," he said.
In Leon County, where the mask litigation is being fielded, more than 630 students, roughly 2% of the student population, were quarantined in connection with Covid-19 infections as of Wednesday.
When handing down the executive order banning in-school mask mandates, DeSantis referenced the recently passed Florida Parents' Bill of Rights, which purports, among other provisions, to protect parents' ability to make healthcare decisions for their children.
Florida Education Commissioner Richard Corcoran last week threatened to withhold funding from school districts in the amount of the salaries of superintendents and school officials who defy the governor's order. Corcoran and DeSantis' office have acknowledged that they cannot directly dock the pay of school district employees.
President Joe Biden's administration has characterized DeSantis' conduct as irresponsible. In a letter to the governor and Corcoran, Biden's Education Secretary Miguel Cardona said his department "stands with the dedicated educators who are working to safely reopen schools."
Cardona's letter indicated that Florida school districts are free to use money from the American Rescue Plan Act of 2021 to cover shortfalls if they are financially penalized by the governor's office for imposing mask mandates.
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