Legal challenge to DeSantis masks-in-schools policy is headed to trial

Judge rules that parents challenging the governor must be heard

By: - August 19, 2021 7:16 pm

The Florida Capitol. Credit: Michael Moline

The DeSantis administration’s efforts to have a lawsuit targeting his masks-in-schools policy thrown out of court failed Thursday, when a Leon County judge ruled that the case will go to trial.

Circuit Judge John Cooper rejected administration arguments that the plaintiffs — parents whose children attend Florida public schools — lacked standing to bring the case. That is, that they haven’t suffered any particular harm from Gov. Ron DeSantis’s policy.

Cooper said the case is strong enough to justify hearing evidence of those claims. During an earlier preliminary hearing, he had scheduled the trial to begin Monday if it survived the administration’s motion to dismiss.

“This case should be tried and a record made, and then we’ll see where we are at the end of that,” Cooper said.

A judge in Broward County has rejected a similar lawsuit filed there, ruling that the proper venue for a claim against a state agency is in Leon County, the home of state government, as the South Florida Sun-Sentinel has reported.

Following a more than two-hour hearing, Cooper announced that plaintiffs’ attorneys in the Broward case have requested consolidating that case with the one before him. He set a hearing for 9:30 a.m. Friday to consider that request.

Cooper stressed that he has not made up his mind about the merits of the case, but cited the enhanced threat of infection from the Delta COVID-19 variant as one of his reasons for proceeding to trial. The 1st District Court of Appeal rejected a similar case last year on separation-of-powers ground, but that was before the more virulent viral strain emerged.

Additionally, remote learning options available then are not available now, he added.

“They have the right to contest the governor’s and the Department of Health’s actions in this case, as alleged. They seek to have their rights heard. They seek to have the school boards and the governor and the DOH to comply with the law of Florida,” Cooper said.

The administration’s other main argument — that interference by the court would violate the doctrine of separation of powers — will turn on the evidence presented at trial, the judge concluded.

“It’s not just that the court can never rule that any action by a state actor is unconstitutional — that’s not the law. It should not be an everyday occurrence,” Cooper said.

But “separation of powers doesn’t work if the law [challenged] is unconstitutional or violates some other law,” he said. “I just think that deserves an evidentiary hearing.”

At issue is DeSantis’ insistence — enshrined in his own executive order and a rule promulgated by the Florida Department of Health — that school districts should be required to let parents and guardians opt their children out of any mask mandate intended to limit spread of the coronavirus.

DeSantis argues that masks are unsuitable for small children and that in any event the state’s Parents’ Bill of Rights, approved by the Legislature earlier this year, leaves the decision to parents.

But a growing number of school districts, including some of Florida’s largest, are insisting that parents seeking out of masking requirements must provide medical evidence of necessity. The State Board of Education is considering sanctions including loss of state money and suspension of officials who buck the official policy.

The parents want the court to declare that DeSantis’ rules and threats against districts that buck it are unconstitutional, violate districts’ authority to set mask policy according to local conditions, are “arbitrary and capricious,” and deny due process. They also want an injunction barring enforcement of the rules.

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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.