PALM BEACH COUNTY, Fla. – Today, the Southern Poverty Law Center (SPLC) filed a legal complaint challenging part of an Emergency Rule issued on August 6 by the Florida Department of Health that prohibits school districts from requiring students to wear masks.
The petition was filed in Florida’s Fourth District Court of Appeal on behalf of the Florida State Conference of the NAACP and families in Palm Beach County who are either medically vulnerable themselves or live with others who would face severe health challenges, including death if they were to contract COVID-19 or the highly transmissible Delta variant. In Florida alone, nearly 500,000 people under the age of 20 are known to have been infected with the virus since the pandemic began.
The Centers for Disease Control and the American Academy of Pediatrics recommend the use of masks in schools to significantly reduce the spread of virus-laden droplets by asymptomatic and pre-symptomatic infected individuals.
The petition seeks a court order invalidating the mask-related portions of the Emergency Rule under the Florida Administrative Procedure Act, which outlines the specific criteria state agencies must follow to circumvent the normal rulemaking process to issue an emergency rule. Chief among these requirements is that the rule must be “necessary” to address “immediate danger to the public health, safety, or welfare.”
The Florida Department of Health stated that they were issuing the August 6 Emergency Rule because “a recent increase in COVID-19 infections, largely due to the spread of the COVID-19 Delta variant, coincides with the imminent start of the school year,” making it “imperative that state health and education authorities provide emergency guidance to school districts concerning the governance of COVID-19 protocols in schools.”
“The Department of Health’s rationale is nonsensical — the rise of the Delta variant makes it more, not less, important for schools to require masks, and the fact that schools plan to do so is not a danger to the public health, safety, or welfare,” said SPLC Senior Staff Attorney Sam Boyd. “The Department of Health abused its emergency rulemaking power to pass this rule, preventing the public and schools from being heard about how dangerous it is. It does zero to protect the public, especially children who desperately want to return to school but only if it is safe to do so. This rule cannot stand.”
The Emergency Rule exceeds the Department’s statutory authority because requiring masks as a preventative measure, which school districts across the state had already done for a full school year before the rule was issued, was something the Department could have attempted to address through ordinary rulemaking. That would have given the public the right to be heard and, if necessary, to bring legal challenges before the rule went into effect. Because mask requirements in schools, which already contain opt-out provisions for medical needs, promote public health, safety, and welfare, not endanger them, the Emergency Rule is not necessary to protect the public, as required by the Administrative Procedure Act, according to the petition.
The DOH issued the rule in response to Gov. Ron DeSantis’ July 30 Executive Order that bars school districts from requiring their students to wear masks in school. In it, he directs DOH to issue regulations in accordance with the order and Florida’s Parent’s Bill of Rights which was signed into law by Gov. DeSantis the day before he issued his anti-mask mandate order.
The Parents’ Bill of Rights, however, does not bar mask mandates in public schools. These latest actions by the Governor represent a pattern of tyrannical decisions that place children’s education, safety, and well-being in the crosshairs of his political goals. J.W. is a nine-year-old student in Palm Beach County.
She has Down syndrome and is seen by multiple physicians. Her pediatrician reports that she has a greater risk of dying from COVID-19 because of her high-risk medical condition and recommends that she not go in environments with unvaccinated and unmasked individuals.
The Governor’s Executive Order and the subsequent DOH rule, as well as the expiration of the executive order that had allowed and funded synchronous remote learning, forces J.W. to learn at home with no access to the synchronous remote classes and therapies she received throughout the pandemic during the 2020-21 school year.
Her 17-year-old sister attends school in person and diligently wears a face mask while there but fears that the Emergency Rule allows potentially infected students to go maskless, putting her at risk of contracting the virus at school and infecting her medically vulnerable sister.
Z.L., 11, is also a Palm Beach County student with a disability. When masks were enforced during the pandemic last school year, he was able to participate in an ASD cluster program at school where he received various support services. He cannot do that now with the current rules in place by Governor DeSantis and DOH. Contracting the virus would pose a serious health risk to not only Z.L. but also his mother who has lupus and rheumatoid arthritis, an autoimmune and inflammatory disease.
“These children and their families and many others like them have a right to attend safe schools, but the Florida Department of Health rule and the Governor’s relentless disregard for their well-being makes schools less safe and inaccessible,” said Adora Obi Nweze, president of the Florida State Conference of the NAACP. “We are suing to ensure they are not unfairly denied access and to reverse the disparate impact of the pandemic on communities of color who are already detrimentally impacted by discriminatory barriers in the healthcare and education systems.”
