By John Haughey, The Center Square
School districts from Alachua, Broward, and Orange County have co-filed a 67-page lawsuit with the Division of Administrative Hearings, calling for an administrative law judge to invalidate the DOH’s emergency rule, which was crafted in July after DeSantis issued his executive order allowing parents to ignore school mask mandates in late June.
As the state appeals a ruling that determined Florida’s policy prohibiting school boards from imposing mandatory mask mandates is unconstitutional, the ban on universal masking in schools nevertheless remains in place across the state’s 67 county-based public school districts.
Gov. Ron DeSantis, Attorney General Ashley Moody, state Education Commissioner Richard Corcoran, and the Florida Board of Education (BOE) have all warned school boards that until the challenge is heard by the 1st District Court of Appeal, it will enforce the prohibition under Rule 64DER21-12, which authorizes the state’s Department of Health (DOH) to issue rules governing “the control of preventable communicable diseases” in schools.
The scenario could change Wednesday during a hearing before Leon County Circuit Court Judge John Cooper to ascertain if he should lift the automatic stay granted the state when it filed its appeal shortly after he issued a 37-page written order on Sept. 2 that determined the governor overstepped his authority in his June 30 executive order.
The judge warned the state not to take any actions against school boards based on the rule.
“If the defendants strictly enforce the executive order, the Department of Health rule, or any other policy prohibiting mask mandates without a parental opt-out, then they are acting without authority and are refusing to comply with all provisions of the law,” he wrote.
Cooper did not address the emergency rule in his verdict because the DOH was not named in the lawsuit. He ruled at the start of the trial that plaintiffs could not add a new defendant in the case.
Instead, the DOH is going to be sued separately in a lawsuit filed Friday challenging the legality of Rule 64DER21-12.
“This is the first of the actions the legal team expects to take,” Alachua County Schools spokeswoman Jackie Johnson told Florida Politics.
The suit cites much of Cooper’s written opinion, recommendations from the U.S. Centers for Disease Control & Prevention (CDC), and recommendations from the American Academy of Pediatrics that all children over age 2 wear masks indoors.
The three school districts contend that state law allows the DOH to make rules about schools regarding the “immunization of children against, testing for and control of preventable communicable disease.”
But allowing parents to ignore such orders under the guise of parental rights means there is no “control.”
“Providing parents and legal guardians with an unlimited opt-out leading to students not wearing face coverings cannot in any respect act as a means to ‘control … preventable communicable disease,'” the suit says.
The suit makes the same argument that Cooper did when he determined DeSantis violated the law he based his executive order on.
The governor based his order on House Bill 241, the ‘Parents’ Bill of Rights Act,’ adopted by lawmakers during the 2021 legislative session, which requires districts cede to parents in decisions regarding their children.
Under the law, the state cannot “infringe on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health” of a child “without demonstrating that such action is reasonable and necessary to achieve a compelling state interest.”
“The Parents Bill of Rights recognized the ability of governmental units, including School Boards, to take means that are ‘reasonable and necessary to achieve a compelling state interest’ and are ‘narrowly tailored,'” the suit states.
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