By Team

TALLAHASSEE (CBSMiami/NSF) – Attorneys for families of children with disabilities have asked a federal appeals court to block an executive order by Gov. Ron DeSantis aimed at preventing school masks requirements during the COVID-19 pandemic.

The attorneys filed a 34-page motion Thursday at the 11th U.S. Circuit Court of Appeals seeking an injunction against the executive order while an appeal of a lower-court ruling moves forward.

In the lower-court ruling, U.S. District Judge K. Michael Moore last month refused to issue a preliminary injunction against DeSantis’ executive order.

But the filing Thursday said children with disabilities are at a “heightened risk of severe illness or death if they contract COVID-19” and can’t safely attend school without mask requirements.

The underlying lawsuit contends that the state has violated the Americans with Disabilities Act and another law, the Rehabilitation Act, that protects the rights of people with disabilities.

DeSantis’ executive order and subsequent Florida Department of Health rules were designed to give parents of schoolchildren the ability to “opt-out” of mask requirements — though some school districts have refused to go along with DeSantis on the issue.

“The governor’s order unlawfully discriminates against the families (of children with disabilities) by prohibiting local school districts from adopting universal masking mandates as a reasonable accommodation for the families’ disabilities,” Thursday’s motion said. “By requiring schools to give parents and their children an unqualified right to opt-out from masking, the governor’s order has removed the one reasonable means that would permit disabled children to attend school without risking their health.”

The motion was the latest development in a series of legal battles in state, federal, and administrative courts stemming from the July 30 executive order.

DeSantis argues that parents should be able to decide whether children wear masks, and the state Department of Education is pursuing financial penalties against districts that restrict the ability of parents to opt-out of mask mandates.

The disabilities lawsuit was filed in August and includes the families of 15 children with a variety of disabilities such as Down syndrome, autism spectrum disorders, and chronic kidney disease.

In his Sept. 15 decision rejecting a preliminary injunction, Moore wrote that the plaintiffs should have pursued administrative claims before filing the lawsuit. 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.

The plaintiffs filed a notice Monday of appealing Moore’s decision and followed with the motion Thursday seeking an injunction against the executive order while the appeal is pending.

The motion took issue with Moore’s ruling that plaintiffs should have exhausted administrative remedies before filing the lawsuit.

Florida mask “The families do not challenge the quality of their children’s education at their public schools,” the motion said. “They instead seek a reasonable accommodation that permits their disabled children to safely enter their schools. Every other federal court to consider a similar claim by disabled students against a universal masking bar in schools during COVID-19 has found that the claims do not require exhaustion.”

If the Atlanta-based appeals court does not grant the injunction, attorneys for the families asked that it “expedite” briefing and arguments in the case.

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