Hayes v. DeSantis

561 F.Supp.3d 1187

Judity Anne HAYES, individually and on behalf of W.H., a minor, et al., Plaintiffs,

v.Governor Ronald Dion DESANTIS, in his official Capacity as Governor of the State of Florida, et al., Defendants.

Case No. 1:21-cv-22863-KMM

United States District Court, S.D. Florida.

Signed September 15, 2021

Stephanie Langer, Matthew Wilson Dietz, Disability Independence Group, Inc., Miami, FL, for Plaintiffs.

Lee A. Peifer, Pro Hac Vice, Rocco E. Testani, Pro Hac Vice, Stacey M. Mohr, Pro Hac Vice, Eversheds Sutherland (US) LLP, Atlanta, GA, Raymond Frederick Treadwell, Executive Office of the Governor Office of the General Counsel, Tallahassee, FL, for Defendant Governor Ronald Dion Desantis.

Anastasios Ioannis Kamoutsas, Florida Department of Education, Tallahassee, FL, Lee A. Peifer, Pro Hac Vice, Rocco E. Testani, Pro Hac Vice, Stacey M. Mohr, Pro Hac Vice, Eversheds Sutherland (US) LLP, Atlanta, GA, for Defendants Florida Department of Education, Richard Corcoran.

Amy J. Pitsch, Susana Cristina Garcia, Greenspoon Marder Law, Orlando, FL, for Defendant Orange County School Board.

Luis Michael Garcia, Jordan Alexander Madrigal, Sara M. Marken, Miami Dade School Board Attorney's Office, Miami, FL, for Defendant Miami Dade County School Board.

Jason L. Margolin, Melissa Torres, Zarra Ramirez Elias, Akerman LLP, Tampa, FL, Christine Burgess Gardner, Akerman LLP, West Palm Beach, FL, for Defendant Hillsborough County School Board.

Jon Erik Bell, Lisa A. Carmona, Sean Christian Fahey, School District of Palm Beach County, Laura Esterman Pincus, Patricia Morales Christiansen, A. Patricia M. Christiansen, P.A. Office of the General Counsel, West Palm Beach, FL, for Defendant Palm Beach School Board.

Michael Thomas Burke, Hudson Carter Gill, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Defendant Broward County School Board.

Dennis John Alfonso, McClain Alfonso PA, Dade City, FL, for Defendant Pasco County School Board.

David McKinnon Delaney, Natasha Gabriella Samri Mickens, Dell Graham, P.A., Gainesville, FL, for Defendant Alachua County School Board.

Carol Ann Yoon, Theodore Robert Doran, Doran Sims Wolfe, Yoon, Aaron Russell Wolfe, Doran Wolfe Rost & Ansay, Daytona Beach, FL, for Defendant Volusia County School Board.

ORDER DENYING PRELIMINARY INJUNCTION

K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court upon Plaintiff Judith Anne Hayes, individually and on behalf of W.H., a minor, Plaintiffs Robyn and John McCarthy, individually and on behalf of L.M., a minor, Plaintiff Amanda Banek, individually and on behalf of D.B. and B.B., minor children, Plaintiff Kas Arone-Miller, individually and on behalf of R.M. and L.M., minor children, Plaintiff Alisha Todd, individually and on behalf of R.M and L.M., minor children, Plaintiff Jamie Kinder, individually and on behalf of R.K., a minor, Plaintiff Chris Rodriguez, individually and on behalf of J.D.-F., a minor, Plaintiff Jack Koch, individually and on behalf of R.K., B.K., and A.K., minor children, Plaintiff Kristen Thompson, individually and on behalf of P.R., a minor, Plaintiff Eren Dooley, individually and on behalf of G.D., a minor, and Plaintiff Tom Collins, individually and on behalf of Q.C., a minor's (collectively, "Plaintiffs") Amended Motion for Preliminary Injunction. ("Mot.") (ECF No. 17). Therein, Plaintiffs request the Court to issue a preliminary injunction requiring Defendant Governor Ronald D. Desantis ("Governor DeSantis"), Defendant Commissioner Richard Corcoran ("Corcoran"), Defendant Florida Department of Education, Defendant Broward County School Board ("Broward"), Defendant Palm Beach County School Board ("Palm Beach"), Defendant Orange County School Board, Defendant Miami-Dade County School Board, Defendant Hillsborough County School Board, Defendant Pasco County School Board, Defendant Alachua County School Board, and Defendant Volusia County School Board (collectively, "Defendants"), to refrain from enforcing the Office of the Governor Executive Order 21-175. See generally Mot. Defendant Governor DeSantis, Defendant Corcoran, and Defendant Florida Department of Education (collectively, "the State Defendants") filed a joint response in opposition. ("Resp.") (ECF No. 51).¹ Plaintiffs filed a reply. ("Reply") (ECF No. 63). The Motion is now ripe for review.

I. BACKGROUND

On July 30, 2021, Florida Governor Ron DeSantis issued Executive Order 21-175 ("Exec. Order 21-175"), entitled "Ensuring Parents’ Freedom to Choose – Masks in School." See Exec. Order 21-175 (July 30, 2021), https://www.flgov.com/wp-content/uploads/2021/07/Executive-Order-21-175.pdf. Therein, Governor DeSantis directed the Florida Department of Health and the Florida Department of Education to "execute rules" and "take any additional agency action necessary" to ensure that safety protocols for controlling the spread of COVID-19: (1) "[d]o not violate Floridians’ constitutional freedoms," (2) "[d]o not violate parents’ rights under Florida law to make health care decisions for their minor children," and (3) "[p]rotect children with disabilities or health conditions who would be harmed by certain protocols such as face masking requirements." Id. at 3–4. Further, Executive Order 21-175 requires that any actions taken pursuant to the foregoing "shall at a minimum be in accordance with Florida's ‘Parents’ Bill of Rights’ and protect parents’ right to make decisions regarding masking of their children in relation to COVID-19." Id. at 4. Executive Order 21-175 also requires the Florida Commissioner of Education to "pursue all legal means available to ensure school districts adhere to Florida law, including but not limited to withholding state funds from noncompliant school boards[.]" Id.

Following the issuance of Executive Order 21-175, on August 6, 2021, the Florida Department of Health and the Florida Department of Education each issued rules governing COVID-19-related health protocols in schools. The Florida Department of Health issued a single emergency rule ("the FDH Rule") which requires, as relevant to the issue of mask-wearing in schools, that "[s]tudents may wear masks or facial coverings as a mitigation measure; however, the school must allow for a parent or legal guardian of the student to opt-out the student from wearing a face covering or mask." Emergency Rule 64DER21-12(1)(d), Fla. Admin. Reg., Vol. 47/153 (Aug. 9, 2021), https://www.flrules.org/gateway/ruleNo.asp?id=64DER21-12. The FDH Rule also requires that students who have been opted out of masking requirements "shall not be subject to any harassment or discriminatory treatment." 64DER21-12(6). The Florida Department of Education also promulgated a rule ("the FDE Rule") entitled "Hope Scholarship Transfer Procedures" which provides:

The Hope Scholarship Program provides funding for a K-12 public school student to transfer to a private school or to another district in the state if the student has been subjected to harassment or other qualifying adverse, intimidating treatment at school. Applying the Hope Scholarship Program to instances where a child has been subjected to COVID-19 harassment will provide parents another means to protect the health and education of their child by moving their child to another school.

Emergency R. 6AER21-02(1), Fla. Admin. Reg. Vol. 47/153 (Aug. 9, 2021), https://www.flrules.org/gateway/ruleNo.asp?id=6AER21-02.

Plaintiffs are 11 parents of 16 students that are enrolled in eight public school districts throughout Florida. See generally Compl. Each student presents unique health-related concerns that they allege makes attending school without a "universal mask mandate"² difficult or impossible. The Court will give a brief background on each student here:

First, Plaintiff Hayes's son, W.H. is ten (10) years old and is not eligible for the vaccine. Second Declaration of Judith Anne Garabo Hayes ("Hayes Aff.") (ECF No. 80-1) ¶ 1. W.H. has down syndrome and is currently not attending Orange County Public Schools in person, although he has in the past. Id. ¶¶ 4, 8. Plaintiff Hayes requested an accommodation which would "allow for W.H. to appear in his classroom virtually, until it [becomes] safe for him to return to school once vaccinated, with a universal mask mandate, and with the school following the CDC guidelines related to social distancing, contact tracing and the like." Id. ¶ 10. However, this request was denied and, instead, the school's plan was to place W.H. in an "overcrowded classroom ... without any assurance that other students and adults would be wearing masks." Id. ¶ 11. For these reasons, Plaintiff Hayes opted to keep "W.H. home and not send him to school, because his health and safety are of paramount concern." Id. ¶ 16. However, Plaintiff Hayes states in her affidavit that even after a universal mask mandate "was put into place, it was still too dangerous for W.H. to return to school because of the number of students how [sic] have been able to opt-out of the mandate." Id. ¶ 17. For example, Plaintiff Hayes states that some students got letters from chiropractors in order to medically opt-out of the universal mask mandate. Id. Plaintiff Hayes is concerned that the class that "W.H. is slated to return to has students who are not required to wear a mask because they have been able to [opt-out]." Id.

Second, Plaintiff Dooley's daughter, G.D., is a ten (10) year-old who has asthma and an emotional behavioral disability. Second Declaration of Erin Dooley ("Dooley Aff.") (ECF No. 80-2) ¶¶ 4, 8–9. G.D. is currently attending school in person in Hillsborough County public schools now that "the school board put into place a 30-day mask mandate." Id. ¶ 6. Despite the mask-mandate being in place in Hillsborough County, Plaintiff Dooley raises various concerns with masking in the cafeteria during lunchtime and is concerned that G.D.’s counseling sessions at school have not aligned with her Individualized Education Program ("IEP"). Id. ...