Revamped Florida Mask Case For Disabled Children Gets Go-Ahead

CBS 12 | By Jim Saunders | January 20, 2022

TALLAHASSEE (CBSMiami/NSF) -— Despite objections from Gov. Ron DeSantis’ administration, a federal judge has allowed parents and children with disabilities to pursue a revamped lawsuit challenging state decisions that included banning student mask mandates in public schools during the COVID-19 pandemic.

U.S. District Judge K. Michael Moore on Wednesday issued an order that allowed attorneys for the plaintiffs to file an amended complaint contending that the state is violating federal laws designed to protect the rights of people with disabilities.

The plaintiffs contend that children with disabilities are more at risk for serious illness and death from COVID-19 and need protections against infection. They argue that the state is violating the Americans with Disabilities Act and a federal law known as the Rehabilitation Act.

“By its actions and inactions, all defendants are forcing children out of the schoolhouse into segregated and unequal environments and placing parents … into an impossible situation of having to choose between the health and life of their child and returning to in-person school,” the amended complaint filed by Miami attorneys Matthew Dietz and Stephanie Langer. “Further, each child’s public school has not offered these students any alternatives that provide them with an equal opportunity to receive equal access to its programs and services and leaves the blame of the failure of doing so at the hands of the state defendants.”

Families of children with disabilities initially challenged an executive order that DeSantis issued July 30 to prevent student mask mandates in public schools. Moore in September rejected a request for a preliminary injunction against the order.

The plaintiffs appealed Moore’s decision to the 11th U.S. Circuit Court of Appeals, but the plaintiffs and the state last month filed a joint motion to dismiss the appeal. The plaintiffs then sought to file the amended complaint.

In addition to DeSantis’ executive order, the amended complaint addresses a law that the Legislature passed in November during a special session. That law, backed by DeSantis, banned student mask mandates and loosened restrictions on students who have been exposed to people with COVID-19. Under the law, those students can attend school so long as they are asymptomatic and have not tested positive for the virus.

The amended complaint names as defendants DeSantis, the Florida Department of Education, Education Commissioner Richard Corcoran, the Florida Department of Health, state Surgeon General Joseph Ladapo and the school boards in Orange, Miami-Dade, Hillsborough, Palm Beach, Alachua and Volusia counties. Students who are plaintiffs in the case live in those school districts.

The children have disabilities such as Down syndrome, severe asthma and a condition known as Trisomy 18, which requires a student to breath through a tracheotomy.

In his September decision rejecting a preliminary injunction in the initial lawsuit, Moore wrote that the plaintiffs should have pursued administrative claims before filing the case. 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.

In a document filed Monday objecting to the filing of the amended complaint, DeSantis administration attorneys said the plaintiffs still had not pursued administrative claims.

“As with the original complaint, it is clear from the proposed amendment that plaintiffs have failed to exhaust their administrative remedies before asserting claims challenging the quality and availability of special-education accommodations from their local public schools,” the document said.

In his order Wednesday allowing the amended complaint, Moore wrote that “it makes sense to address state defendants’ arguments in the ordinary course of this case, such as through a motion to dismiss. Additionally, the court finds that leave to amend the complaint is warranted in order to afford plaintiffs the opportunity to cure previous deficiencies in the complaint.”