A Florida judge on Thursday refused to dismiss a lawsuit challenging the order by Gov. Ron DeSantis that parents should decide whether their children wear masks at school to combat the coronavirus.
The order by Leon County Circuit Judge John C. Cooper clears the way for a three-day hearing next week on whether to block enforcement of the governor's order.
The lawsuit was filed Aug. 6 by parents opposed to the DeSantis order banning schools from imposing mask mandates unless parents can opt out of the requirements. Cooper decided the parents have a legal right to sue, overruling the state's position.
“I do believe they have a right to challenge the governor,” the judge said after a three-hour hearing. “I'm not deciding whether they are right or wrong. We'll have to see what the evidence shows.”
Five Florida school districts — including four of the largest — are defying the governor's order by permitting mask opt-outs only for medical reasons rather than parental choice. An attorney in the lawsuit, Charles Gallagher, said such decisions should be left to local school boards, not imposed by the state.
“They have a right to govern themselves. They can enact their own policies,” Gallagher said.
In their motion to dismiss, attorneys for the Republican governor and state education officials 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," attorney Michael Abel said. But Cooper said those rights include the right to sue.
“This case should be tried and a record made,” the judge said.
The decision came as worries grew that rapidly spreading infections could force officials to close classrooms. Thousands of schoolchildren are already being sent home, only days after their school year began.
Children — particularly those too young to get vaccinated against COVID-19 — are “really good” at transmitting the coronavirus, said Dr. J. Stacey Klutts, a special assistant to the national director of pathology and lab medicine for the entire Veterans Affairs system.
Klutts said the highly contagious delta variant makes it absolutely necessary to wear masks indoors and avoid large group gatherings, so if unprotected students sit for hours in classrooms every day, it could rapidly spread infection in the community at large.
“It’s terrifying. I’m afraid that we’re going to have a lot of really sick kids in addition to the spread which is going to be a lot of sick adults,” Klutts said.
School boards in Palm Beach, Miami-Dade and Hillsborough counties voted Wednesday to join Broward and Alachua in requiring students to wear facial coverings unless they get a doctor's note.
Students began their school year in Palm Beach County on Aug. 10 with a parental opt-out policy that allowed more than 10,000 children to attend classes without masks. The board reversed course after seeing the numbers: After just one week, 734 students and 112 employees had confirmed infections, and more than 1,700 students had been sent home home, interim Superintendent Michael Burke said.
Hillsborough, which also began its school year last week, also changed its policy during an emergency meeting Wednesday after tallying 2,058 confirmed cases of COVID-19 and sending more than 10,000 students into isolation because of infection or quarantine because of exposure.
Asked about the decision of the school board in Hillsborough County, DeSantis defended his stance that parents should continue to decide for their children.
“They had allowed the parents to make the decision and have an ability to opt out and that’s how school started,” DeSantis said. “They reneged on that and basically took the decision out of the parents’ hands.”
Statewide, Florida reported 23,335 new COVID-19 infections for Tuesday, the U.S. Centers for Disease Control and Prevention said. The U.S. Department of Health and Human Services dashboard reported 16,973 hospitalizations of COVID-19 patients Thursday.
DeSantis also is in an escalating power struggle with the Democratic White House. After President Joe Biden ordered possible legal action Wednesday, the U.S. Education Department raised the possibility of using its civil rights arm against Florida and other Republican-led states that have blocked public health measures meant to protect students.
“Some state governments have adopted policies and laws that interfere with the ability of schools and districts to keep our children safe during in-person learning,” Biden's executive order said.