Reprinted with permission from Daily Kos
Last Friday Florida Gov. Ron DeSantis won a victory for bad public health when a three-judge panel in the First District Court of Appeals ruled that the governor could continue trying to punish school districts that enacted mask mandates for their schools. The decision overruled 2nd Judicial Circuit Court Judge John C. Cooper's ruling that the governor's ban on mask mandates was unconstitutional.
Lead attorney for the parents who brought the lawsuit against DeSantis, Charles Gallagher, told reporters "We are disappointed by the ruling and will be seeking pass-through jurisdiction of the Supreme Court of Florida. With a stay in place, students, parents and teachers are back in harm's way."
Shortly after the 1st District Court of Appeal's decision, the Biden administration announced that the U.S. Department of Education's civil rights division would open up an investigation into whether or not DeSantis's order violates the federal civil rights statutes that protect students with disabilities.
Suzanne Goldberg, acting assistant secretary for civil rights in the Department of Education, sent a letter to Florida Department of Education Commissioner Richard Corcoran stating the intention of the federal government. "OCR's investigation will focus on whether, in light of this policy, students with disabilities who are at heightened risk for severe illness from COVID-19 are prevented from safely returning to in-person education, in violation of Federal law. The remainder of this letter sets out in more detail the basis for this investigation and how the investigation will proceed."
This investigation mirrors the claims made by Florida parents in their lawsuit against Gov. DeSantis and Commissioner Corcoran. Law professor Claire Raj, who specializes in special education law and has written about the current investigations and litigations regarding these conservative bans on mask mandates, writes that while there is "no bright-line rule setting the limits of what modifications" on what would be called "reasonable accommodations for students with disabilities, one need only look at existing accommodations that have been created in schools across the country in order to protect children's civil rights."
For example, in certain instances schools must offer allergen-free spaces such as nut-free classrooms when tasked with educating students with severe or life-threatening allergies to certain foods. Schools may have to take other precautions to ensure safe classrooms for students with severe allergies, such as wiping down tables frequently, installing or changing air filters, or running air-quality tests to ensure that a child with chemical or other allergen sensitivities can safely attend.
The Florida investigation is an extension of the Department of Education's existing civil rights investigations into Iowa, Oklahoma, South Carolina, Tennessee, and Utah. The department had previously declined to investigate Arkansas, Arizona, Florida, and Texas because of the existing litigation in those states that were preventing these conservative officials' bans from being enforced. Today's decision leaves those children and those educators unprotected from this truly awful political football of a policy.
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