Parents of Children with Disabilities Sue to Permit Mask Mandates

little boy with Down syndrome wearing a blue shirt and brown pants and blue glasses with a pin that says Birthday boy

MIAMI, FL, August 6, 2021, Parents of 15 children across the State of Florida sued Governor Ron DeSantis to permit their children with disabilities to safely attend school without the fear of becoming seriously ill or dying from COVID-19.

On July 30, 2021, Florida Governor Ron DeSantis issued Executive Order 21-175, entitled “Ensuring Parents’ Freedom to Choose – Masks in Schools,” in response to several Florida school boards considering or implementing mask mandates in their school districts. In the Executive Order, DeSantis contended that wearing a mask is a limitation on a parent’s fundamental right to make health and educational decisions for their children. For school boards who defy DeSantis and implement mask mandates to protect all children and teachers in schools, he directed the Commissioner of Education to penalize those school boards and to withhold funding.

This has a devastating effect on 10-year-old Will Hayes, who was looking forward to going into fourth grade in Orange County. Will has Down syndrome, but it has never held him back from participating in public education. In the spring of 2020, when COVID-19 hit, he came home from school on a Friday ready for spring break, but hasn not been back in the classroom since then.

Will was looking forward to returning to school this year in fourth grade with all his friends. Due to a recent spike in transmissions fueled by the Delta variant and other factors, it doesn not look like can  happen for Will. People with Down syndrome are highly susceptible to bad outcomes from a COVID-19 infection – they are five times more likely to require hospitalization and four times more likely to die if infected.

The school’s plan was to put Will, who is susceptible to bad outcomes from COVID-19 by virtue of having Down syndrome, in a physical classroom with 22 unvaccinated children who could not be compelled to wear masks along with a teacher and a paraprofessional whose vaccination status is unknown and not required. “Solutions” included making Will sit alone by a window or in a corner.

For thousands of students across the State of Florida, it is too risky to return to brick-and-mortar schools without basic protections for their health and safety. For the 2020-21 school year, Florida had 2,795,691 students enrolled in public schools. Of the over two million students who attend public school, 14.9% are students who have been identified by the state as having a disability. As of the 2020-21 survey, 24,136 students were identified has having an intellectual disability; 47,667 students were identified as having an autism spectrum disorder;  438 have traumatic brain injuries; and,47,606 are identified as other health impaired.

The 15 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 other conditions that would compromise their immune systems, they are all being forced 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 Individuals with Disabilities Education Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act require that all public school districts ensure that all children with disabilities have a free and appropriate public education in the most integrated and least restricted environment. The bottom line is that these children with disabilities are entitled to learn and interact with all other children, receive the same education as all other children, and do so while being safe and returning home as safe and healthy as possible.

The U.S. Centers for Disease Control has indicated that children with underlying medical conditions are at increased risk for severe illness compared to children without underlying medical conditions. Recent studies are uncontroverted about the additional dangers to children with disabilities that are disproportionally affected by COVID-19 and who suffer more serious and life-threatening effects from the virus. Having a developmental disability was the strongest independent risk factor for presenting with a COVID-19 diagnosis and the strongest independent risk factor other than age for COVID-19 mortality.

This is exactly why these children and their parents decided to file this lawsuit. Their rights are being trampled by DeSantis’ Emergency Order and political whims. They are demanding that their education plans, which are required and governed by federal law, take into account and protect them from the deadly risks of COVID-19.

The Executive Order conflicts with the school districts’ and the State of Florida’s obligations under the Individuals with Disabilities Education Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. Will, his family, and the other families in this lawsuit are requesting that a federal court find that DeSantis’ Executive Order violates these laws  and that DeSantis does not have the authority to interfere with these children’s rights under these disability rights laws under the Supremacy Clause of the United States Constitution.

The case is Judith Anne Hayes  v. Governor Ronald Dion DeSantis, Case No. 1:21-cv-22863 in the United States District Court for the Southern District of Florida  Links to the Mask Complaint and preliminary injunction.

Disability Independence Group is a 501(c)(3) non-profit organization that promotes recruitment, education and employment of persons with disabilities thereby improving their lives through competitive employment and financial stability; and through the changing of society’s perception of person with disabilities.