JACKSONVILLE, Fla. — Parents of nearly two dozen Duval County schoolchildren sued the School Board Thursday and are seeking an emergency injunction to block the district’s mask mandate.
The lawsuit claims the School Board violated numerous constitutional protections, as well as the right of Florida students to a high-quality education, when it adopted a 90-day mandatory mask mandate, set to take effect Sept. 7.
First Coast News obtained a copy of the petition and the lawsuit, which alleges a variety of physical and mental ailments suffered by the plaintiffs' children, ranging from persistent migraines to anxiety to poor academic performance. The plaintiffs consist of 18 parents, some of whom have children with learning disabilities. Others say they've been unable to find doctors to sign the medical waivers required to opt-out of school mask requirements.
“The immediate goal is to get the mask mandate terminated,” says attorney Nick Whitney, who filed the case with attorney Greg Anderson. “This is a case where the parents are standing up for their rights, and saying under these fundamental constitutional rights – the right privacy, right of free speech, the right of equal protection, due process -- we have the right to decide for our children, and the county cannot tell us how to do that.”
“It's about freedom,” said Anderson. “These children should not be part of a political football game.”
First Coast News has reached out to the school district and Board Chair Elizabeth Andersen for comment and has not yet heard back. But in a letter to the state Department of Education Wednesday night, Superintendent Dr. Diana Greene defended the district's mask mandate, citing “abundant testimony … about the critical and compelling need for students and staff to wear masks in an effort to reduce the spread of COVID-19.”
Greene wrote, “In the face of such testimony and the rapid and widespread increase in infections, the DCSB was compelled to take action to protect the health of students and staff.”
Dr. Jeffrey Goldhagen, chief of pediatrics at UF Health, says that while there "may be some impacts in a "very small exception" of cases when children have profound learning disabilities, there is "no evidence whatsoever that masks cause harm to children."
The new lawsuit is one of a handful of cases around Florida filed by parents opposed to mandatory masks. It claims the district’s mandate “is not based on science or reason, but instead some combination of political leanings, emotions, irrational fears and psychological anxieties of its Superintendent and School Board members.” Because masking isn’t mandatory in other public places, the suit says the district has embraced “the magical belief that the COVID-19 virus can only spread on school property.”
The suit questions the effectiveness of masks in preventing the spread of COVID-19 and says rather than protecting kids, it “aims to stigmatize and intimidate.”
The Centers for Disease Control and Prevention, the World Health Organization and most doctors recommend masking as a tool to prevent transmission of COVID, particularly the highly contagious Delta variant. However, state agencies like the Florida Department of Health and the Department of Education have prioritized parental choice over mask mandates.
This lawsuit is just the latest skirmish in an ever-escalating battle over mask mandates in Florida. In July, Gov. Ron DeSantis’ banned mandates in schools, threatening to punish districts that disobeyed by withholding school funds. As coronavirus infections soared in recent weeks, nearly a dozen school boards defied the governor and adopted mask mandates anyway, with opt-out provisions for legitimate medical reasons.
The Governor’s mandate-ban was struck down in court last week in a case brought by parents demanding mandatory masking. Although the judge’s order would appear to prohibit the state from penalizing schools that have mandates, the governor vowed to appeal. And earlier this week, the Florida Department of Education began withholding money from Broward and Alachua counties' schools. DOE sent a letter threatening Duval County with similar penalties.
Duval’s 90-day mask mandate was approved 5-2 following a marathon emergency meeting on Aug 23. It requires students to wear masks indoors, though they can remove them if they are participating in sports. Students can opt out for documented medical, physical or psychological reasons, with a doctor’s note.
Whitney says the medical opt-out provision isn’t sufficient. He calls the medical certification form “difficult to find” and says it fails to spell out important information. “It doesn't say who to submit it to at the school, it doesn't say who the school is gonna be looking at this. … Does the person looking at have any medical training? Who's reviewing it? Who's decided on sufficiency? What does that process look like?”
Attorney Greg Anderson contends district officials are putting politics over science. “We're not convinced, based on our research thus far, that masks really work, at least the type of masks that most people have access to,” he says. He acknowledges COVID “is scary” and that “people are very worried about it.” But he says new research about the aerosolized spread of the virus makes masks more about political signaling than safety.
“We don't want anything bad to happen to anyone because of this, but life is a series of balances. And especially with freedom. You've got to weigh the pros and cons.”
The language of the lawsuit is more pointed. It says school officials “wield [power] like a gorilla with an oversized paint brush, blotting out valid concerns of parents.” It calls the mask mandate “odious … the most destructive of all potential alternatives” and cites “cancel culture” as one of the obstacles anti-mask parents face.
It continues, “The message [of the mandate] is simple: ‘We hold the power and we will weaponize it against you at a moment’s notice. And your Constitutional rights be dammed.’”
The language of the request for an emergency injunction is similarly strong, referencing “authoritarian board members” and their capricious “diktats.”
It may be no accident that the language echoes an opinion issued by the First District Court of Appeal in June. In that ruling (Green v. Alachua County), the 1st DCA knocked down Alachua County’s mask mandate, saying it infringed on the plaintiff’s constitutional right to privacy.
The ruling hinged on a 2017 Florida Supreme Court decision that essentially shifted the burden of proof to the government when a disputed law involves the right to privacy. In that case (Gainesville Woman Care v. State), the Florida Supreme Court said any law that infringes on the right to privacy “is presumptively unconstitutional.”
In cases where a privacy claim is asserted, therefore, it’s no longer up to the plaintiff to argue that the law deserves strict scrutiny, or review, by the court. Instead, the government must prove that the law serves a compelling state interest in the least restrictive manner possible.
The supreme court ruling reversed a decision by the 1st DCA, saying the lower court “misapplied and misconstrued” legal precedent. In his majority opinion in Green v. Alachua, 1st DCA Judge A.S. Tanenbaum acknowledged the correction, noting dryly, “We will not make that mistake again.”
Tanenbaum goes on to attack the “diktats” and “fiats” imposed in Alachua County, in which residents were living “under the yoke of a mask mandate” … “subjected to whispering informants” and “the threat of government-sponsored shaming.”
In a dissenting opinion, 1st DCA Judge Joseph Lewis called masks a “minimal inconvenience” in the face of a deadly pandemic, and likened them to motorcycle helmet laws, or rules prohibiting smoking in public places.
“A person’s right to be let alone is no more precious than his fellow citizen’s right not to become infected by him with a contagious, airborne, and potentially fatal virus," Lewis wrote.
But Whitney contends that the harms to children from masks are real, and says until the district can prove they do more good than harm, wearing them should be an individual choice.
“The emergency rule is ‘only 90 days,’ but then after that, it's another 90 days, and then it's next year, and then it's in your high school, and then once you're in college, and then you're fired if you don't wear a mask. So I think this is the right time to take a stand,” he says “ The virus isn't going anywhere. But liberty still matters.”
Parents have created a fundraising page to help finance the lawsuit.
First Coast News will update this story with a response from the School District.