DeSantis’ lawyers ask judge to toss parents’ lawsuit over school mask policy

The question is political and the courts shouldn’t interfere, brief argues

By: - August 17, 2021 2:00 pm
Tampa mask mandate protest

Families protesting potential mask mandates in Florida. Credit: Octavio Jones/Getty Images

The DeSantis administration has cited two school districts’ defiance of his ban on mask mandates in the classroom in defense of that policy.

The argument appears in a legal brief the administration submitted to Leon County Circuit Judge John Cooper in a lawsuit filed by a group of parents who claim the policy will put their children at risk of infection with COVID-19.

Cooper has said that he plans to rule on the administration’s motion to dismiss the lawsuit during a Zoom hearing on Thursday.

The bulk of the administration’s argument focuses on the doctrine of separation of powers — essentially, that decisions about how best to protect schoolchildren against the coronavirus are political in nature and shouldn’t be made by judges.

The Florida 1st District Court of Appeal, an intermediate appellate court, underscored that principle only last October, when it voided a lower court injunction against the administration’s plans to reopen brick-and-mortar classrooms in a lawsuit filed by the Florida Education Association, the brief says.

Gov. Ron DeSantis’ decision — encapsulated in an executive order and in rules promulgated by the state Department of Education and Department of Health — is to allow parents and guardians to opt out of any requirement by local districts to require mask wearing by children.

Two districts have defied the policy thus far — in Alachua and Broward counties. They stand to lose some of their state funding as a consequence of requiring everyone to wear masks inside school buildings.

The State Board of Education was meeting Tuesday and could decide upon a punishment. The Biden administration has promised to replace any money the state might take away from the districts.

“The executive order does not expressly preclude or otherwise ban county school boards from enacting mandatory masking” — it merely directs state educational officials to write rules covering mask mandates and threatens funding for districts that disobey, the brief asserts.

“Several counties have determined that less funding for schools was appropriate. Ultimately, the court cannot mandate masks in schools. Yet that is precisely that plaintiffs want,” it says.

DeSantis in his executive order told the agencies to abide by Florida’s Parents’ Bill of Rights, approved by the Legislature in the spring and signed into law by the governor in June. The law establishes that state and local governments “may not infringe on the fundamental rights of a parent to direct the upbringing, education, health care and mental health” of their children.

“The executive order and the rule are not determinative of whether children should wear masks in school. Instead, they aim to protect the persons who should make that decision and are entitled to do so under Florida law — the child’s parent,” the administration’s brief argues.

“The executive order and the rule were implemented after balancing the legitimate state interests of school safety and parental rights,” the document continues.

“Although plaintiffs may disagree with the governor’s policy decision, the court lacks the authority to elevate plaintiffs’ policy decision and impose it upon the state. 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 a court.”

Furthermore: “The executive order does not expressly preclude or otherwise ban county school boards from enacting mandatory masking” — it merely directs state educational officials to write rules covering mask mandates and threatens funding for districts that disobey, the brief asserts.

“Several counties have determined that less funding for schools was appropriate. Ultimately, the court cannot mandate masks in schools. Yet that is precisely that plaintiffs want,” it says.

The parents’ lawsuit cites language in the Constitution declaring that ‘adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public schools.”

It also mentions the following provision:

“The school board shall operate, control, and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein.”

The administration, in turn, cited constitutional language establishing that the State Board of Education, which administers the Department of Education, “has such supervision of the system of free public education as established by law.”

“[L]ocal school district do not have plenary” — meaning absolute — “authority to establish local education policy. To the contrary, the text and structure of the Florida Constitution demonstrate that the state Legislature has both primacy and presumptive authority over the state’s public education system,” the brief says.

The brief also argues that the parents lack standing to sue over the matter — that is, that they have suffered or will suffer harm that the courts have power to redress.

“But only local school districts, not the plaintiffs, would have standing to argue whether the executive order infringes their constitutional authority,” it asserts.

“No school district has raised such a suit because the law is clear that the Florida Constitution delineates a hierarchical structure between the State Board of Education and the local school districts, and the executive order and rule appropriately leverage the constitutional supervisory authority granted to the State Board of Education.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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