Judge says lawsuit against Gov. Ron DeSantis’ school mask mandate ban can move forward

Florida families ‘have their right to have their case heard in court’

A judge determined Thursday a lawsuit against Gov. Ron DeSantis’ mask manadate ban for schools filed by Florida parents can move forward.

During a more than three-hour hearing held over Zoom with eight attorneys -- two representing the state and six representing 27 Florida families -- presented their case to Leon County Circuit Judge John Cooper, who oversees the Second Circuit Court in Florida.

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The lawsuit, filed Aug. 6 by attorneys representing Florida parents and their children, challenges the state’s department of education and DeSantis’ executive order passed last month that prevents schools from requiring masks, essentially banning blanket face-covering mandates. Parents are arguing the order is unconstitutional and prevents schools from providing a safe and secure educational environment.

Florida filed a motion to dismiss, however, Cooper did not and determined the case should proceed.

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

The judge said not all parents can choose to have their children attend virtual school because their jobs don’t allow that. Cooper said a trial would allow both sides to fully present evidence and all the facts.

Attorneys for the families argue “inherent harm” in elected officials overstepping by banning local school districts from making the decision to require masks.

Attorneys for the families said DeSantis overstepped his authority as Florida governor.

Attorney Craig Whisenhunt said that some school districts have “decided they don’t care” about the order and have moved ahead with mask requirements while other districts “are fearful” of the consequences.

Five Florida school districts are defying the governor’s order by permitting mask opt-outs only for medical reasons rather than parental choice.

Nothing in the newly passed Florida “Parental Bill of Rights” says that parents should determine public health for everyone, the attorneys said.

“We’re living in a state of essentially being hostages,” Whisenhunt said.

Gallagher asked the judge to declare the executive order “unconstitutional” and “check” the overreach of the state government, which would allow individual school districts to decide over mask mandates.

Defense Attorney Michael Abel, representing Florida, argued that would essentially be “micromanaging” the state leadership.

In their motion to dismiss, Florida’s attorneys contended that the parents have no legal standing to sue in a matter between DeSantis and the 67 Florida school boards.

Beyond that, they argue that the governor’s order properly reserves to parents the right to decide whether their child should wear a mask at school.

The governor’s decision is aimed at “protecting safety in the schools while protecting parent rights,” Abel said.

During a three-day hearing beginning Monday, both sides will present their cases and make closing arguments.

“I do believe they have a right to challenge the governor,” Cooper said. “I’m not deciding whether they are right or wrong. We’ll have to see what the evidence shows.”

The governor’s press secretary Christine Pushaw responded to the judge’s decision Thursday with the following statement:

We are confident in the legal basis and merits of our position. Under Florida law, parents have the right to make health and educational decisions for their own children. The DOH/DOE rules protect parents’ freedom to choose whether their own kids wear masks to school or not.

Governor DeSantis stands for parents’ rights, makes data-driven decisions, and follows the science. There is no empirical evidence to support the assertion that the benefits of forced masking of schoolchildren outweigh the potential harms. Masking kids under 12 is not recommended in many EU countries, because their health authorities have found that the risks are not well understood – and the data shows that forced-masking of young children has a negligible impact on COVID prevalence and spread.

In fact, some students with special needs (Deaf/hard-of-hearing, speech impediments, autism, etc.) may be harmed by mandatory masking. That’s why Governor DeSantis believes every parent should have a choice as to whether their child wears a mask or not – because every child is different, and one-size-fits-all mandates do not work for everyone.

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