Four parents challenging the School Board’s mandatory face mask policy are due to get their day in state Circuit Court on Jan. 29.
But if a recent court ruling in a similar case in Hillsborough County can be used as a guide, the face mask policy the School Board enacted in response to the COVID-19 pandemic will be upheld and the lawsuit will be thrown out.
Judge Martha Cook, of the 13th Circuit Court in Hillsborough County, recently dismissed a lawsuit filed on behalf of nine parents by Patrick Leduc, the same attorney representing the Indian River County parents.
The judge ruled the Hillsborough County School Board had the legal authority to establish a mandatory face mask policy to protect the health, safety and welfare of students during the COVID-19 pandemic.
“In the wake of the current pandemic, Florida courts have repeatedly held that requiring individuals to wear face covering in a public location is not a constitutional violation,” Cook wrote. “The court finds these opinions persuasive.”
“The court further finds that plaintiffs cannot allege any set of facts or circumstances which would entitle them to relief,” Cook wrote in a Dec. 15 order. “Therefore, further amendment is futile.”
The Hillsborough County parents are not going to appeal the dismissal because it’s not worth the expense, Leduc said Monday. The School Board has far more spending power than the parents.
Another judge elected in a different circuit could come to the opposite conclusion even though the facts are similar, Leduc said.
“It depends on your judge,” Leduc said. “We’ll see what other judges think.”
The solo practitioner is also representing parents challenging mandatory face mask policies in public schools in Brevard, Lee and Sarasota counties.
In the 19th Circuit Court, Judge Janet Croom scheduled a hearing on Zoom from the County Courthouse in downtown Vero, starting 1 p.m., Friday, Jan. 29.
Croom will hear Leduc’s arguments for the suspension of the face mask policy until a full-blown hearing can be held on claims the policy violates the parents’ Constitutional and parental rights.
The judge will also hear the School Board’s request to dismiss the complaint on the grounds the Board possesses the authority to require students and employees to wear facial coverings to slow the spread of COVID-19.
The parents claim the mandatory face mask policy violates the state Constitutional requirement of providing free public education, creates a system that is separate and unequal and violates parental authority to determine their minor child’s medical treatment.
The lawsuit filed Oct. 28 by parents Jennifer Pippin, Alexandra Nobregas, Nicole Campanelli and Sandy Campiglia equates the mandatory mask policy to requiring medical treatment.
Leduc has also filed similar complaints in Brevard and Sarasota counties.
The School Board approved a Safe at School Plan with a mandatory face mask policy on July 21 based on guidance from the Centers for Disease Control and Prevention and the School District’s Pandemic Response Team. The plan was also approved by the Florida Department of Education.
The law firm representing the School Board, Akerman LLP of Tampa, asked Croom to throw out the lawsuit because the School Board’s duty to protect students and employees from COVID-19 outweighs a parent’s right to decide whether their child wears a face mask in public school.
There is no Constitutional right to expose others to a contagious and potentially deadly virus during a global pandemic, the School Board’s attorneys argued.
