39 parents sue Hillsborough schools over masking rule

The group says school officials overreached with a mask mandate that defied state directives.

Tampa Bay Times | By Marlene Sokol | September 30, 2021

A group of parents who oppose the Hillsborough County school district’s strict masking policy have filed a lawsuit in circuit court, seeking a judge’s order to stop schools from enforcing the rule.

The lawsuit contends that, in imposing a masking order that requires a medical certificate before a student can be excused, the district violated parents’ constitutional freedoms and the state’s new Parents’ Bill of Rights law. The position taken by Gov. Ron DeSantis and the state Department of Health is that student masking should be a parent’s decision, and that to impose such a rule constitutes discrimination and harassment.

The lawsuit, filed on Sept. 22, alleges that the policy subjects children to the harmful effects of hours-long masking and does not allow for religious objections to the rule.

Luke Lirot, a civil liberties attorney who represents the 39 parents, said he avoided issues of science because he is not a scientist and “every day, somebody sends me a new study leading one way or another.”

The lawsuit did not name any children as plaintiffs because, Lirot said, children who do not wear masks are already being ostracized inside and outside school.

Instead, he made a straightforward argument that the district’s actions are “diametrically opposed” to state directives, dating back to DeSantis’ July 30 executive order, that leave the decision up to parents.

“It’s the law, end of story,” Lirot said. “And the school district does not get to violate the law with impunity, no matter how well-intentioned their actions may be.”

To the argument that non-mask wearers endanger other children’s health, Lirot said enforcement is haphazard. Students do not wear the masks at lunch, for example. “There are so many exceptions to the rule,” he said. “And these inconsistencies render it as arbitrary.”

School Board Attorney Jim Porter said the district has been notified of the lawsuit. In an email to School Board members, he wrote, “we will defend the Board’s decision in court and will keep you informed.” He had no further comment.

Hillsborough leaders have argued in the past that their policy does allow for parental opt-out, and the need for medical documentation is merely an additional component to that process. The lawsuit says such requirements “are burdensome, impose an undue and unfair expense on parents and serve no legitimate government purpose.”

The Hillsborough district, along with about a dozen others in the state, enacted the rule in response to escalating COVID-19 rates during and shortly after the resumption of classes in August, on the advice of medical professionals.

At one point, Hillsborough schools were reporting more than 500 cases a day. That’s more than 10 times what they experienced during a comparable period in the 2020-21 school year.

The numbers continued to rise, then came down sharply after the strict rule was approved at an emergency School Board meeting on Aug.18. Supporters say the rule has cut down on in-school transmission. But skeptics point to neighboring Pasco and Pinellas counties, where the number of COVID-19 cases in schools is also falling even though masking in those districts is voluntary.

The case counts are continuing to fall areawide. In the week since Sept. 22, Hillsborough schools have logged 361 cases — a number that, in late August, would represent a typical day.

The School Board has several options to consider at its next meeting on Tuesday where masking is concerned.

The district can continue to defend its position in court, allowing the strict rule to continue until it expires on Oct. 15. The State Board of Education has called an emergency meeting for Oct. 7 to discuss the COVID-19 and masking situation, and sanctions it has announced against those districts that have gone against the state orders.

If Hillsborough were to revert to the policy it used at the beginning of the school year, of a masking order that allowed for a parental opt-out, it would be in keeping with the state orders.