WLRN 91.3 FM | By Jim Saunders / News Service of Florida/ November 22, 2021
TALLAHASSEE — A federal appeals court is scheduled to hear arguments in February in a dispute about whether Gov. Ron DeSantis’ efforts to prevent school mask mandates violated laws designed to protect the rights of people with disabilities.
The 11th U.S. Circuit Court of Appeals issued a notice last week that said arguments will be held the week of Feb. 7 in Miami. The case centers on a July 30 executive order that DeSantis issued to try to prevent school districts from requiring students to wear masks during the COVID-19 pandemic.
Families of children with disabilities sought a preliminary injunction against the order, but U.S. District Judge K. Michael Moore rejected the request in September. That led attorneys for the families to go to the Atlanta-based appeals court, contending that the state has violated the Americans with Disabilities Act and another law, the Rehabilitation Act, that protect the rights of people with disabilities.
In a brief filed last week, attorneys for the families wrote that the “case is about whether children with disabilities who are at a heightened risk of severe illness or death if they contract COVID-19 can safely attend their schools.”
“These children are left in limbo as they face an increased risk of illness or death if they go to school or an irrecoverable loss to their education if they enroll in substandard virtual or homebound schooling,” the 81-page brief said. “A reasonable accommodation is available to make in-person classes safe to attend: universal masking.”
DeSantis’ executive order led to the Florida Department of Health issuing rules aimed at barring school mask mandates and the Florida Department of Education imposing financial penalties on districts that bucked the rules. The Republican-controlled Legislature went a step further during a special session last week, passing a law that bars local school officials from requiring students to wear masks.
While some school districts challenged the Department of Health rules and required students to wear masks, those districts in recent weeks have dropped mask mandates. DeSantis and other state Republican leaders have argued for months that parents should be able to decide whether children wear masks.
The disabilities lawsuit was filed in August and includes the families of 15 children with a variety of disabilities such as Down syndrome, autism-spectrum disorders and chronic kidney disease.
In a Sept. 15 decision rejecting a preliminary injunction, Moore wrote that the plaintiffs should have pursued administrative claims before filing the lawsuit. He said the plaintiffs have different circumstances, requiring “unique solutions.”
“The court finds all plaintiffs would be substantially benefited by pursuing administrative remedies that can provide tailored solutions to each child’s individual needs,” Moore wrote.
The judge also wrote that the plaintiffs had not shown “irreparable harm because they have not been denied educational services all together.” In a court document filed last month, attorneys for the state backed Moore on both issues.
“The district court was also right to conclude that plaintiffs have not alleged an irreparable educational injury sufficient to warrant a preliminary injunction,” the attorneys for the state wrote. “The temporary denial of plaintiffs’ preference for in-person instruction in the locations and on all the terms that they would dictate to their local schools is not an irreparable injury.”
But in the brief filed last week, attorneys for the families disputed that they needed to exhaust an administrative claims process. They also wrote that the Americans with Disabilities Act “prohibits discrimination against a qualified disabled person because of their disability.”
“At its heart, this case is about a challenge to a law that prevents the families’ children from attending school with other children,” the brief said. “Under the governor’s order, the defendants have unlawfully discriminated against the families by failing to make and enforce a reasonable modification — universal masking mandates — that would permit children with disabilities to safely attend in-person learning with their non-disabled classmates.”