By CBSMiami.com Team

TALLAHASSEE (CBSMiami/NSF) — As a legal battle has played out in Tallahassee over Gov. Ron DeSantis’ efforts to prevent school mask mandates, attorneys for the state are trying to fend off a separate lawsuit alleging violations of federal laws designed to protect the rights of students with disabilities.

Parents of children with disabilities are asking a federal judge in South Florida for a preliminary injunction against an executive order that DeSantis issued July 30 to try to block school districts from requiring students to wear masks amid the COVID-19 pandemic.

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Attorneys for the parents contend that the executive order violates the Americans with Disabilities Act and two other federal disabilities laws, in part because children with disabilities are more susceptible to serious illness or death from COVID-19.

“It is uncontroverted and a matter of common sense that vulnerable children with disabilities (especially when unvaccinated) have a much higher probability of getting sicker and potentially dying if they get infected with COVID-19,” attorneys for the parents wrote in a document filed Friday. “In refusing to allow school districts to implement commonly accepted protections for these children, such as a mask requirement, the Florida governor and his executive departments have essentially excluded them from the public schools and made parents of children with disabilities have to choose between their child’s life and health, and the rights of other parents who do not want their children to be told they must wear a piece of cloth on their face.”

But attorneys for the state last week argued that the request for a preliminary injunction should be rejected for a series of reasons. For example, they wrote in a court document that the plaintiffs cannot show that the executive order is preventing school districts and school administrators from addressing concerns “on the individualized, case-by-case basis required by federal law.”

“The proper resolution of this matter — in accordance with federal law and long-standing precedent — is for plaintiffs to work with their schools to design an individualized solution to accommodate their particular student’s educational and health needs,” the state’s attorneys wrote. “There are many ways that solutions can be accomplished, but the injunction sought here is not one of them.”

The issue of whether school districts should be able to require students to wear masks has sparked a massive controversy during the past month, as schools have reopened amid a surge in COVID-19 cases linked to the highly contagious delta variant of the coronavirus.

DeSantis’ executive order led to a state Department of Health rule that required districts to allow parents to opt out of any student mask requirements. The state has threatened the salaries of school officials who do not comply, but 10 districts have bucked the order and the rule and are only allowing students to opt out if they have doctors’ notes.

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After days of testimony and arguments, Leon County Circuit Judge John Cooper on Friday barred the Florida Department of Education, Education Commissioner Richard Corcoran and the State Board of Education from enforcing DeSantis’ order. But the DeSantis administration immediately vowed to appeal Cooper’s ruling, which came in a challenge filed by a group of parents.

The federal lawsuit in South Florida, filed Aug. 6, is more narrowly focused on the rights of students with disabilities. In addition to DeSantis and Corcoran, the lawsuit also named as defendants the school boards in Orange, Miami-Dade, Hillsborough, Palm Beach, Broward, Pasco, Alachua and Volusia counties.

The lawsuit, assigned to U.S. District Judge K. Michael Moore, raises issues under the Americans with Disabilities Act and federal laws known as the Individuals with Disabilities Education Act and the Rehabilitation Act. In a motion for a preliminary injunction, attorneys for the plaintiffs wrote that the laws require school districts to “ensure that all children with disabilities have a free and appropriate public education in the most integrated and least restricted environment.”

The motion said DeSantis’ efforts to prevent mask requirements are “forcing parents with children with disabilities to choose between their child’s health or their child’s education.”

“The children in this lawsuit have multiple disabilities that make them susceptible to severe injury or death if they contract COVID-19. … Whether these children live with autism, Down syndrome, kidney disease, asthma, or some other conditions that would compromise their immune system, they are each in the predicament to forego their right to a free and appropriate education in the least restrictive environment due to a requirement that places them at greater danger of death or serious injury,” the motion said.

But in arguing against the motion for a preliminary injunction, attorneys for the state wrote last week that an alleged loss of educational opportunities for students with disabilities is “conjectural and hypothetical.” They also wrote that other accommodations could be available to students through such things as virtual or in-home instruction.

“(This) case is ultimately about plaintiffs’ individualized remedies under federal disability law — not about the state’s and school districts’ authority and responsibility for mask policies during the pandemic,” the attorneys for the state wrote. “Nor does this case require the court to decide the wisdom of the competing views on those policy issues at the state, local, and household levels. Plaintiffs have failed to show a likelihood of success on the merits or a threat of irreparable injury, and their motion for preliminary injunction should be denied on either (or both) of those grounds.”

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CBSMiami.com Team