Miami-Dade schools join legal fight to stop state mask mandate prohibition

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Miami-Dade County schools are cutting right to the chase — filing suit against state Department of Health rules banning required student masks even before its state aid is reduced for disobeying Gov. Ron DeSantis’ executive order.

The suit, filed Tuesday, asks an administrative law judge to invalidate the emergency rule made after DeSantis forbade school districts from mandating that students wear masks. The 30-page filing calls the state’s requirement that school districts allow parents to opt out of mask mandates illogical and unsupported by fact, and says it promotes the spread of COVID-19.

“The Parental Opt-Out Provisions are directly contrary to the ostensible purpose of the DOH Rule, in that they facilitate, rather than control, the spread of a communicable disease,” reads the suit, signed by Jamie Cole and Edward Guedes, of the law firm Weiss Serota Helfman Cole & Bierman. “It was thoughtless, irrational, and without reason for the DOH to adopt such disease-facilitating provisions as an ostensible measure to control COVID-19.”

The suit notes that children younger than 12 years old can’t be vaccinated, making other means to stop the spread, such as masks, more critical.

Christina Pushaw, the Governor’s spokeswoman, said the administration intends to defend the law and parents’ rights.

“We are confident (we’ll) prevail on the merits,” she wrote in an email. She noted the Centers for Disease Control and Prevention’s guidelines are merely recommendations.

“The CDC does not have the authority to impose legally binding restrictions and mandates that overrule parents’ choices,” she said. “In various cases where the CDC overstepped its authority, such as the eviction moratorium, courts have affirmed that CDC edicts don’t have the force of law.”

This is the second suit against DOH rules surrounding student masks that have prompted 13 school districts to disobey the Governor’s order. His order requires that parents be allowed to opt out of any school requirement that students mask up for school. School districts in Alachua, Broward and Orange counties on Friday filed a similar, joint request for an administrative hearing. More lawsuits are expected to follow. School districts in Brevard, Duval, Hillsborough, Indian River, Lee, Leon, Palm Beach, Sarasota and Volusia counties are requiring students to mask up, unless they have a doctor’s note excusing them.

Now most Florida students go to school in districts that require masks. The mask mandates were a response to the surge of the delta variant of the virus. In some districts, the number of students testing positive for COVID-19 in the first few weeks of school threatened to out-pace the number who contracted the virus during the entire 2020-21 school year, when in-person students were required to wear masks.

Schools in Alachua and Broward counties were the first to pass mandates and went through hearings about their decisions last month. The state, in response, reduced state aid equivalent to the salaries of school board members, according to a state order. No other hearings regarding the other districts have yet been scheduled, however, according to Jared Ochs, a Department of Education spokesman.

On another legal track, parents have filed suit against DeSantis’ executive order and a Leon Circuit Court judge agreed the state was overreaching its authority in punishing school districts for mask mandates. That ruling was appealed last week, but the judge rejected a request for a stay that would allow the state to continue with punishing disobedient districts on Wednesday, according to ABC Action News in Tampa Bay.

Circuit Judge John Cooper’s ruling is echoed in Miami-Dade County schools’ filing against the state, although not specifically cited. Cooper said parents’ rights to make decisions for their children are not absolute. They must submit to schools’ vaccination requirements, for example.

“The codified right to make health care decisions for one’s own minor children does not include the right to place other children and staff at risk of harm, or the right to cause others harm,” Miami-Dade’s suit reads. “Indeed, the U.S. Supreme Court has made clear in the context of a parent’s right to determine the upbringing of a child that the right ‘does not include the liberty to expose the community or the child to communicable disease or the latter to ill health or death.’”