Opinion
Case No. 9:21-cv-81715-KMM
2021-10-29
Dustin LLOYD, individually and on behalf of his minor children, P.L., G.L., and E.L., et al., Plaintiffs, v. SCHOOL BOARD OF PALM BEACH COUNTY, et al., Defendants.
Cory Carsan Strolla, Law Offices of Cory Strolla, P.A., West Palm Beach, FL, Joel D. Medgebow, Medgebow Law, P.A., Coconut Creek, FL, Louis Frank Leo, IV, Florida Civil Rights Coalition, P.L.L.C., Saint Johns, FL, for Plaintiffs Dustin Lloyd, William O'Connor, Jr., Amber Santamarina, Shana Borowski, Emily Matchica, Joyce Van Etten, Lindsay Pasquale, Victor Nin, P. L., G. L., E. L., T. O., B. S., K. B., S. M., C. S., E. C., J. C., J. N. Louis Frank Leo, IV, Florida Civil Rights Coalition, P.L.L.C., Saint Johns, FL, for Plaintiffs P. C., L. S., W. S., Landon Swan, Rebecca Disney, W. S.(2). Sean Christian Fahey, The School District of Palm Beach County, West Palm Beach, FL, for Defendants.
Cory Carsan Strolla, Law Offices of Cory Strolla, P.A., West Palm Beach, FL, Joel D. Medgebow, Medgebow Law, P.A., Coconut Creek, FL, Louis Frank Leo, IV, Florida Civil Rights Coalition, P.L.L.C., Saint Johns, FL, for Plaintiffs Dustin Lloyd, William O'Connor, Jr., Amber Santamarina, Shana Borowski, Emily Matchica, Joyce Van Etten, Lindsay Pasquale, Victor Nin, P. L., G. L., E. L., T. O., B. S., K. B., S. M., C. S., E. C., J. C., J. N.
Louis Frank Leo, IV, Florida Civil Rights Coalition, P.L.L.C., Saint Johns, FL, for Plaintiffs P. C., L. S., W. S., Landon Swan, Rebecca Disney, W. S.(2).
Sean Christian Fahey, The School District of Palm Beach County, West Palm Beach, FL, for Defendants.
ORDER GRANTING MOTION TO DISMISS
K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant School Board of Palm Beach County ("School Board"), Defendant Michael Burke ("Burke"), and Defendant Frank Barbieri, Jr.’s ("Barbieri") (collectively, "Defendants") Motion to Dismiss. ("Mot.") (ECF No. 23). Therein, Defendants argue that the Amended Complaint ("Am. Compl.") (ECF No. 16) should be dismissed for failure to state a claim upon which relief can be granted. See generally Mot. Plaintiffs Dustin Lloyd, William O'Connor, Amber Santamarina, Shana Borowski, Emily Matchica, Joyce Van Etten, Lindsay Pasquale and Victor Nin (the "Parent Plaintiffs") filed a response, ("Resp.") (ECF No. 24), individually and on behalf of their minor children, P.L., G.L., E.L., T.O., B.S., K.B., S.M., C.S., E.C., J.C., and J.N. (the "Minor Plaintiffs"). Defendants filed a reply. ("Reply") (ECF No. 25). The Motion is now ripe for review.
I. BACKGROUND
The background facts are taken from the Amended Complaint and accepted as true for purposes of ruling on the Motion. Bacon v. McKeithen , No. 5:14-CV-37-RS-CJK, 2014 WL 12479640, at *1 (N.D. Fla. Aug. 28, 2014) ("[The Court] must construe all allegations in the complaint as true and in the light most favorable to the plaintiff.").
On August 24, 2021, the School Board of Palm Beach County sent a letter ("Letter") (ECF No. 16-2) to parents to inform them that the School Board had approved a policy making facial coverings mandatory for students (hereinafter, the "Mask Mandate"). Am. Compl. ¶ 128; see also Letter at 1. The School Board's Mask Mandate affords one limited exception for students with documented disabilities. Letter at 1. Additionally, the School Board's Letter lays out the following "interventions and progressive discipline" for students who refuse to wear a facial covering:
1. Facial coverings will be offered to students who arrive at school without one.
2. Non-compliance may include, but is not limited to, the following in a progressive order of corrective strategies.
a. Conference with student
b. Conference with parent/guardian
c. Reiterate expectations and safety/health benefits
d. Loss of privileges (during school hours)
e. Loss of extra-curricular activities
f. Temporary removal from class
g. In-school suspension.
h. [Out-of-school] suspension.
Am. Compl. ¶ 129; Letter at 2. The Letter further states that the Mask Mandate would remain in place for ninety (90) days and be subject to periodic reassessment. Am. Compl. ¶ 126; Letter at 1.
On August 26, 2021, the Defendants received a letter from Florida Department of Education Commissioner Richard Corcoran and the State Board of Education, which informed them that an investigation was being opened as to the School Board's compliance with the Florida Department of Health Emergency Rule 64DER21-12. Am. Compl. ¶ 119. The regulation referenced in Commissioner Corcoran's letter was an emergency rule promulgated by the Florida Department of Health, 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.
However, despite the letter from Commissioner Corcoran, the School Board has kept its Mask Mandate in place, with no provision for parents to opt their children out of the mask requirement. Am. Compl. ¶ 122. On September 22, 2021, the School Board again reiterated its commitment to its masking policy. Id. ¶ 136.
Opposition to the School Board's masking policy has not been limited to Florida state officials. For example, at a School Board meeting held on September 22, 2021, a student testified:
[S]o far, we have been forced to wear masks for my entire time as a middle schooler. I have friends that I have never seen their smile. I have teachers that I have never seen their faces. It's really hard to hear people with masks on and I can't tell if my friends are happy or sad. I don't feel like talking to people much with a mask on.... The masks are hot, uncomfortable and hard to breathe and talk with. I loved going to school, but now I hate it because of the masks. I never got in any trouble before, but now I get yelled at if my mask accidently flips down.... I wore a mask all through sixth grade and now seventh. By my calculations, I've spent 6,300 hours in a mask in the past year. How much longer do we kids have to be the only ones forced to wear these masks?
Id. ¶ 138.
Minor Plaintiffs are children between the ages of five (5) and seventeen (17) who attend school within the School District of Palm Beach County. See id. ¶¶ 9–32. Minor Plaintiffs allege that they have been disciplined, or threatened with discipline, for noncompliance with the School Board's Mask Mandate. Id. Additionally, Plaintiffs allege that they face a continuing threat of progressive discipline, including a potential for out-of-school suspension. Id. Parent Plaintiffs have not consented to the masking of their children and have submitted "opt-out" forms to Defendant School Board. Id. ¶ 34.
On September 12, 2021, Plaintiffs filed a Complaint (ECF No. 1). Plaintiffs subsequently filed the operative Amended Complaint on September 27, 2021. See Am. Compl. at 1.
Therein, Plaintiffs assert the following claims: (1) a 42 U.S.C. § 1983 claim for violation of the Supremacy Clause of the United States Constitution ("Count I"), see id. ¶¶ 259–72; (2) a § 1983 claim for violation rights to privacy, parental rights, and right to bodily autonomy under of the Fourteenth Amendment of the United States Constitution ("Count II"), see id. ¶¶ 273–80; (3) a § 1983 claim for violation of the right to due process under the Fifth and Fourteenth Amendments of the United States Constitution ("Count III"), see id. ¶¶ 281–95; (4) a § 1983 claim for violation of the right to equal protection of the law under the Fourteenth Amendment of the United States Constitution ("Count IV"), see id. ¶¶ 296–309; (5) a declaratory judgment action based upon invalid exercise of statutory authority under Florida law ("Count V"), see id. ¶¶ 310–31; (6) a declaratory judgment action based upon a violation of the right to due process under Art. I § 9 of the Florida Constitution ("Count VI"), see id. ¶¶ 332–41; (7) a declaratory judgment action based upon a violation of the right to equal protection under Art. I § 2 of the Florida Constitution ("Count VII"), see id. ¶¶ 342–59; (8) a declaratory judgment action based upon a violation of the right to privacy under Art. I § 23 of the Florida Constitution ("Count VIII"), see id. ¶¶ 360–64; (9) a declaratory judgment action based upon a violation of the Florida Parent's Bill of Rights ("Count IX"), see id. ¶¶ 365–72; and (10) a "permanent injunction" action against the Mask Mandate based upon the foregoing claims ("Count X"), see id. ¶¶ 373–85.
Now, Defendants seek to dismiss Plaintiffs’ Amended Complaint, in its entirety, for failure to comply with Federal Rule of Civil Procedure 8(a)(2) and for failure to state a claim upon which relief should be granted under Federal Rule of Civil Procedure 12(b)(6). Mot. at 2–3. Additionally, Defendants contend that Plaintiffs’ claims against Defendants Burke and Barbieri should be dismissed because they are duplicative of the claims asserted against Defendant School Board. Mot. at 2.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted). This requirement "give[s] the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and alterations omitted). The court takes the plaintiff's factual allegations as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008).
A complaint must contain enough facts to plausibly allege the required elements. Watts v. Fla. Int'l Univ. , 495 F.3d 1289, 1295–96 (11th Cir. 2007). A pleading that offers "a formulaic recitation of the elements of a cause of action will not do." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis , 297 F.3d 1182, 1188 (11th Cir. 2002).
III. DISCUSSION
For the reasons discussed below, the Court finds that Plaintiffs have failed to state a claim upon which relief can be granted under Rule 12(b)(6) and the Amended Complaint is properly dismissed, in its entirety.
A. Plaintiffs’ Claims under the FDCA Are Not Cognizable under § 1983.
In Count I of the Amended Complaint, which asserts a claim under § 1983, Plaintiffs allege that the Mask Mandate is invalid because it is preempted by the Federal Food, Drug, and Cosmetic Act ("FDCA"), as codified at 21 U.S.C. § 360bbb-3(e)(1)(A)(ii), which relates to the emergency authorization of medical products. Am. Compl. ¶ 260. Specifically, Plaintiffs allege that masks are an "investigational product" and/or "experimental medical device" which are the subject of an Emergency Use Authorization and, as such, Plaintiffs must be informed of and afforded the option to accept or refuse administration of the product. Id. ¶¶ 260–272.
Defendants argue that a preemption claim cannot be asserted through § 1983 because "the Supremacy Clause, of its own force, does not create rights enforceable under § 1983." Mot. at 5 (quoting Golden State Transit Corp. v. City of Los Angeles , 493 U.S. 103, 107, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) ). Defendants also argue that Plaintiffs cannot bring an FDCA-based claim under § 1983 because the FDCA explicitly provides that there is no private right of action to enforce its provisions. Id. (citing Markland v. Insys Therapeutics, Inc. , 758 F. App'x 777, 779 (11th Cir. 2018)) ("[T]he FDCA says that its requirements may only be enforced by the United States government.") (citing 21 U.S.C. § 337(a) ).
In response, Plaintiffs contend that even if a statute does not create a cause of action, the Supreme Court has recognized that "if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted." Resp. at 10 (citing Armstrong v. Exceptional Child Ctr., Inc. , 575 U.S. 320, 324–25, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015) ) (citing Ex parte Young , 209 U.S. 123, 155–56, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ). Plaintiffs argue that state law tort claims have been allowed to proceed, in certain instances, with respect to issues governed by the FDCA. Id. at 10–11 (citing Wyeth v. Levine , 555 U.S. 555, 574, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) ). Additionally, Plaintiffs cite to two cases in which courts appear to have exercised jurisdiction for claims seeking declaratory relief involving the FDCA. Id. (citing Ringo v. Lombardi , 706 F. Supp. 2d 952 (W.D. Mo. 2010) ; Gaalla v. Citizens Medical Center , 2010 WL 2671705 (S.D. Tex. June 20, 2010) ).
In reply, Defendants contend that a mask requirement that accompanies school attendance does not implicate the federal statute pertaining to the emergency authorization of certain products. Reply at 3 (citing Norris v. Stanley , 1:21-CV-756, 567 F.Supp.3d 818, 822-23 (W.D. Mich. Oct. 8, 2021) ) (finding that a vaccine mandate, as a condition of employment, does not preclude informed consent because the vaccine is a condition of employment which the plaintiff did not have a constitutionally protected interest in).
1. Background on the Emergency Authorization for Facial Coverings.
Title 21, United States Code, Section 360bbb-3 establishes the statutory framework for emergency authorization of products (including drugs, devices, and biological products) by the Secretary of Health and Human Services ("the Secretary"). See generally § 360bbb-3. As relevant here, the Secretary "may make a declaration that the circumstances exist justifying the authorization" for a product on the basis of "a determination by the Secretary that there is a public health emergency ... that affects, or has a significant potential to affect, national security or the health and security of United States citizens living abroad, and that involves a biological, chemical, radiological, or nuclear agent or agents, or a disease or condition that may be attributable to such agent or agents." § 360bbb-3(b)(1)(C). As to the conditions for authorization of a product for emergency use, the FDCA requires that, "to the extent practicable," steps be taken to ensure that individuals "on whom the product is administered" are informed "of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks." § 360bbb-3(e)(1)(A)(ii)(III).
On February 4, 2020, the Secretary determined there to be a "public health emergency that has a significant potential to affect national security or the health and security of United States citizens living abroad and that involves a novel (new) coronavirus (nCoV) first detected in Wuhan City, Hubei Province, China in 2019 (2019-nCoV)." See Determination of Public Health Emergency, 85 Fed. Reg. 7316-01 (Feb. 7, 2020). Then, based upon the Secretary's determination of a public health emergency, on April 24, 2020, the Secretary issued an Emergency Use Authorization ("Mask EUA") clarifying that facemasks, including cloth face coverings, are "authorized for use by the general public to cover their noses and mouths, in accordance with CDC recommendations." See FOOD AND DRUG ADMINISTRATION , (April 24, 2021), available at: https://www.fda.gov/media/137121/download. The Mask EUA does not include any provision regarding informed consent. See generally id.
2. Plaintiffs May Not Bring a Section 1983 Claim to Assert Their Rights under the FDCA Because Congress Has Foreclosed the Ability of Private Plaintiffs to Enforce or Restrain Violations of the FDCA.
In Golden State Transit , the Supreme Court stated that the "Supremacy Clause, of its own force, does not create rights enforceable under § 1983." 493 U.S. at 107, 110 S.Ct. 444. The Supremacy Clause "is not a source of any federal rights," rather, it "[secures] federal rights by according them priority whenever they come in conflict with state law." Id. (citing Chapman v. Houston Welfare Rights Organization , 441 U.S. 600, 613, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) (other citations omitted)). "Given the variety of situations in which preemption claims may be asserted, in state court and in federal court, it would obviously be incorrect to assume that a federal right of action pursuant to § 1983 exists every time a federal rule of law pre-empts state regulatory authority." Id. at 108–09, 110 S.Ct. 444. However, in certain circumstances, a federal statute that preempts state law may include a federal right for which § 1983 provides a remedy. Id. at 109, 110 S.Ct. 444. Thus, the availability of the § 1983 remedy turns on whether the statute: (1) "by its terms or as interpreted, creates obligations ‘sufficiently specific and definite’ to be within ‘the competence of the judiciary to enforce,’ " (2) "is intended to benefit the putative plaintiff," and (3) "is not foreclosed ‘by express provision or other specific evidence from the statute itself.’ " Id. (quoting Wright v. City of Roanoke Redevelopment & Hous. Auth. , 479 U.S. 418, 423, 432, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) ).
Here, Plaintiffs may not assert their rights under the FDCA in a § 1983 premised upon a violation of the Supremacy Clause because the FDCA clearly states "that its requirements may only be enforced by the United States government." Markland , 758 F. App'x at 779 (citing 21 U.S.C. § 337(a) ); see also Merrell Dow Pharmaceuticals v. Thompson , 478 U.S. 804, 817, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) (stating that there is no private cause of action for violation of the FDCA). In particular, where a plaintiff sues to enforce a duty that exists "solely by virtue of the FDCA," that kind of claim is preempted. Markland , Inc., 758 F. App'x at 780 (citing Buckman Co. v. Plaintiff's Legal Comm. , 531 U.S. 341, 353, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) ). Thus, because the availability of private relief under the FDCA is "foreclosed by express provision [ ] of the statute itself," the Court finds that the § 1983 remedy is unavailable to Plaintiffs insofar as they seek to assert a claim that the FDCA preempts the Mask Mandate under the Supremacy Clause. Golden State Transit , 493 U.S. at 107, 110 S.Ct. 444 ; see also Wright , 479 U.S. at 423, 107 S.Ct. 766 (noting that although § 1983 is available to enforce violations of federal statutes by state agents, an exception exists where "where Congress has foreclosed such enforcement of the statute in the enactment itself[.]")
Title 21, United States Code, Section 337(a) provides that except in certain circumstances where a state may bring its own action, "all such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States."
Defendants argue that the Supreme Court has also stated that "if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted." Armstrong , 575 U.S. at 326, 135 S.Ct. 1378 (citing Ex parte Young , 209 U.S. 123, 155–56, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ). However, in Armstrong the Court was clear, again, that "the Supremacy Clause is not the ‘source of any federal rights,’ and certainly does not create a cause of action[.]" Id. at 324, 135 S.Ct. 1378 (quoting Golden State , 493 U.S. at 107, 110 S.Ct. 444 (1989) ; (internal citation moved to end; other citations omitted)). Relatedly, Supreme Court Justice Antonin Scalia remarked:
It is unlikely that the Constitution gave Congress such broad discretion with regard to the enactment of laws, while simultaneously limiting Congress's power over the manner of their implementation, making it impossible to leave the enforcement of federal law to federal actors.... It would be strange indeed to give a clause that makes federal law supreme a reading that limits Congress's power to enforce that law, by imposing mandatory private enforcement—a limitation unheard-of with regard to state legislatures.
Id. at 326. Thus, the Court finds that Armstrong does not stand for the proposition that any federal statute, such as the FDCA, can serve as the basis for a § 1983 claim under the Supremacy Clause—Plaintiffs’ request for relief under Ex parte Young is likewise curtailed by the explicit limitations of the FDCA. 21 U.S.C. § 337(a).
To the extent Plaintiffs argue that the Court can enjoin the Mask Mandate in equity, this argument, too, is without merit. In Armstrong , the Court clearly stated that "[t]he power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations." Armstrong , 575 U.S. at 329, 135 S.Ct. 1378 (citing Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ). Relatedly, the Court stated that "[c]ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law." Id. (quoting INS v. Pangilinan , 486 U.S. 875, 883, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) ). In Armstrong , the Court found that "the Medicaid Act implicitly precludes private enforcement of § 30(A), and respondents cannot, by invoking our equitable powers, circumvent Congress's exclusion of private enforcement." The same is true here because the FDCA is explicit in its exclusion of private enforcement. Markland , 758 F. App'x at 779 (citing 21 U.S.C. § 337(a) ); see also Merrell Dow , 478 U.S. at 817, 106 S.Ct. 3229.
Plaintiffs have not cited, nor is the Court aware of, any case which has allowed a Plaintiff to vindicate his or her rights under the FDCA through a § 1983 claim premised upon the Supremacy Clause. To the contrary, it appears that every court which has addressed this issue directly has concluded the opposite. See Guilfoyle v. Beutner , No. 221CV05009VAPMRWX, 2021 WL 4594780, at *27 (C.D. Cal. Sept. 14, 2021) ("[T]he Court agrees with the LAUSD Defendants that Plaintiffs cannot state a claim for violation of this statute." (citing 21 U.S.C. § 337(a) )); Foli v. Metro. Water Dist. of S. California , No. 11CV1765 JLS BLM, 2012 WL 1192763, at *3 (S.D. Cal. Apr. 10, 2012) ("Congress's intent is plain: there is no private right of action under the FDCA. Accordingly, Plaintiffs may not use § 1983 as a means to enforce the FDCA" (internal citation omitted)).
Plaintiffs cite Wyeth for the proposition that "private lawsuits can be used to enforce federal laws with mandates similar to those of the [FDCA]." Resp. at 10 (citing Wyeth v. Levine , 555 U.S. 555, 574, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) ). In Wyeth , the Supreme Court found that the FDCA did not preempt private state law tort claims to vindicate claims arising from unsafe drugs. Wyeth v. Levine , 555 U.S. 555, 574, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). The Supreme Court reasoned that:
If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA's 70–year history. But despite its 1976 enactment of an express pre-emption provision for medical devices, see § 2, 90 Stat. 574 (codified at 21 U.S.C. § 360k(a) ), Congress has not enacted such a provision for prescription drugs.... Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.
Id. at 574–75, 129 S.Ct. 1187 (citing Riegel , 552 U.S. at 327, 128 S.Ct. 999 ) ("Congress could have applied the pre-emption clause to the entire FDCA. It did not do so, but instead wrote a pre-emption clause that applies only to medical devices."). The Court finds Plaintiffs’ reliance on Wyeth for the stated proposition is highly tenuous for two reasons. First, the notion that a state tort claim can proceed despite the existence of the FDCA does not remotely stand for the proposition that an individual can assert rights under the FDCA, independent from any state tort claim. Second, Wyeth placed great emphasis on Congress's decision not to preempt state-law for issues in involving drugs in the manner that it did for medical devices. Id. Therefore, the reasoning in Wyeth is inapplicable to this case which involves medical devices and, if anything, stands for the opposite proposition—that is, that because Congress enacted an express preemption provision for medical devices, Congress did not intend for individuals to bring private state law claims to vindicate their rights under the FDCA. In other words, because Congress was not silent on preemption with respect to medical devices, that is powerful evidence that Congress did intend for FDA oversight to be the exclusive means of medical device safety and effectiveness.
Plaintiffs do not explicitly invoke the Declaratory Judgment Act in Count I. However, at the bottom of the Amended Complaint in the request for relief, Plaintiffs do seek a declaratory judgment that the School Board's Mask Mandate violates the Supremacy Clause. See Am. Compl. ¶ 85. Thus, the Court finds it necessary to note that "the Declaratory Judgment Act is not an independent source of federal jurisdiction; the availability of such relief presupposes the existence of a judicially remedial right." Glen v. Club Mediterranee S.A. , 365 F. Supp. 2d 1263, 1272 (S.D. Fla. 2005), aff'd , 450 F.3d 1251 (11th Cir. 2006) (citing Schilling v. Rogers , 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960) ). Here, the FDCA is explicit that it may only be enforced by the federal government, and in certain cases by state governments. 21 U.S.C. § 337(a). Thus, to the extent Plaintiffs assert their rights under the FDCA through the Declaratory Judgment Act, the Court is without jurisdiction to hear such a claim. Glen , 365 F. Supp. 2d at 1272 ("For this Court to create a private right of action for declaratory relief under TWEA would be contrary to legislative intent.").
Plaintiffs’ reliance Gaalla v. Citizens Med. Ctr . is puzzling because, in that case, the Court declined to allow the plaintiffs to use the Declaratory Judgment Act to obtain a declaration that the defendants violated 42 U.S.C. § 1320a–7b(b) (a criminal law that prohibits "kickbacks" for medical treatment involving federal programs), stating:
The Court concludes that Plaintiffs may not use the Declaratory Judgment Act to seek a declaration that Defendants have violated Section 241.1015(b) of the Texas Health and Safety Code and the Anti–Kickback Statute, 42 U.S.C. § 1320a–7b(b). To rule otherwise would be to create a private right of action where none exists. See Qwest Commc'ns Corp. v. Maryland-Nat'l Cap. Park & Plan. Comm'n, No. RWT 07CV2199, 2010 WL 1980153, at *11 (D. Md. May 13, 2010) ("[T]he Court concludes that there is no private right of action for damages under § 253. Allowing Qwest to proceed in a declaratory judgment action with § 253 as the source of the underlying substantive law is tantamount to allowing a private cause of action."). Moreover, it would essentially transform the Declaratory Judgment Act into an independent jurisdictional source for any statute, which the Supreme Court has made clear it is not. Schilling v. Rogers , 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960).
No. CIV.A. V-10-14, 2010 WL 2671705, at *5 (S.D. Tex. June 30, 2010) (internal citations reformatted) (emphasis added). Thus, the Court finds that this case does not support the proposition for which Plaintiffs relied on it. , Accordingly, Defendants’ Motion as it pertains to Count I is GRANTED.
Plaintiffs have cited a case arising in the Western District of Missouri where a district court found that it could exercise jurisdiction over a declaratory judgment claim alleging that the FDCA preempted state law because it could do so "as a matter of discretion." Ringo v. Lombardi , 706 F. Supp. 2d 952, 959 (W.D. Mo. 2010). The Court respectfully disagrees that a federal court can simply exercise jurisdiction over claims that Congress explicitly foreclosed the ability of private plaintiffs to pursue. To the extent the Court is afforded any discretion on this issue, the Court respectively declines to do so for the reasons stated above.
Plaintiffs’ arguments based on 21 C.F.R. § 50.20, which requires informed consent as to risks posed to subjects involved medical research, are simply meritless in the absence of any allegation that the School Board is conducting a medical experiment.
B. Plaintiffs Have Failed to State a Substantive Due Process Claim under the U.S. Constitution.
In Count II of the Amended Complaint, Plaintiffs assert their right to privacy, right to bodily autonomy, and parental rights, under the Fourteenth Amendment to the U.S. Constitution. Am. Compl. ¶¶ 273–80. In Count III of the Amended Complaint, Plaintiffs assert their right to Due Process, under the Fifth and Fourteenth Amendments to the U.S. Constitution. Id. ¶¶ 281–95.
Defendants argue that Plaintiffs have failed to state a claim for violation of their substantive due process rights because the School Board's policy does not infringe upon any fundamental rights under the U.S. Constitution and withstands rational basis review. Mot. at 5. In response, Plaintiffs argue that their fundamental rights are implicated by the School Board's Mask Mandate. Resp. at 12–13. Additionally, Plaintiffs contend that the Mask Mandate is arbitrary and irrational, and therefore fails rational basis review. Id. at 17–20.
"Laws that burden the exercise of a fundamental right require strict scrutiny and are sustained only if narrowly tailored to further a compelling government interest." Lofton v. Sec'y of Dep't of Child. & Fam. Servs. , 358 F.3d 804, 815 (11th Cir. 2004) (citing Zablocki v. Redhail , 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) ). "When a challenged law does not infringe upon a fundamental right, we review substantive due process challenges under the rational basis standard." Fresenius Med. Care Holdings, Inc. v. Tucker , 704 F.3d 935, 945 (11th Cir. 2013).
As set forth below, the Court finds that the School Board's Mask Mandate (1) does not implicate any of Plaintiffs’ fundamental rights under the U.S. Constitution, and (2) withstands review under the rational basis standard.
1. The School Board's Mask Mandate Does Not Infringe upon Plaintiffs’ Fundamental Rights under the U.S. Constitution and, Therefore, Strict Scrutiny Does Not Apply.
a. The Fundamental Right to Make Child-Rearing Decisions.
Defendants contend that parental rights protected under the Due Process Clause of the Fourteenth Amendment do not encompass the decision to have one's child wear a mask. Id. at 7 (citing Oberheim, 567 F.Supp.3d at 823-24 ; Guilfoyle , 2021 WL 4594780, at *16 ). In response, Plaintiffs contend that the School Board's Mask Mandate violates Parent Plaintiffs’ fundamental right to make child-rearing decisions. Resp. at 12–13. Plaintiffs distinguish cases relied on by Defendants because, in Florida, the state has required parental opt-outs for masks in Defendants’ schools. Id. at 13. "The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ " Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The Fourteenth Amendment's Due Process Clause, like the Fifth Amendment's Due Process clause, "guarantees more than fair process." Id. (quoting Washington v. Glucksberg , 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ). "The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ " Id. (citing Glucksberg , 521 U.S. at 720, 117 S.Ct. 2258 (other citations omitted)).
Among the fundamental liberty interests that have been recognized by the Supreme Court as protected under the Fourteenth Amendment is "the interest of parents in the care, custody, and control of their children." Id. (citations omitted). The Supreme Court has upheld this right in a variety of contexts. Meyer v. Nebraska , 262 U.S. 390, 403, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding that a statute forbidding the teaching of the German language violated the Fourteenth Amendment); Pierce v. Society of Sisters , 268 U.S. 510, 534–35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that a statute requiring the attendance of public schools violated the Fourteenth Amendment); Wisconsin v. Yoder , 406 U.S. 205, 219, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (holding that a statute requiring the compulsory attendance of formal education after the eighth grade violated the Fourteenth Amendment); Troxel v. Granville , 530 U.S. at 65, 120 S.Ct. 2054 (holding that a statute requiring parents to provide for the visitation of grandparents to violated the Fourteenth Amendment).
Defendants have cited to cases in which courts have rejected arguments that the fundamental right of a parent to direct the upbringing of their children extends to the context of mask mandates. Case v. Ivey , No. 2:20-CV-777-WKW, 542 F.Supp.3d 1245, 1281 (M.D. Ala. June 1, 2021) ("[T]he court is skeptical that such a right is broad enough in scope to encompass an interest in keeping one's children from wearing a mask during a global pandemic."); Oberheim v. Bason , No. 4:21-CV-01566, 565 F.Supp.3d 607, 615 (M.D. Pa. Sept. 30, 2021) ("[T]he Plaintiffs have not identified, and the Court is not aware of, any cases standing for the proposition that school masking requirements violate parents’ right to raise their children.").
Plaintiffs, on the other hand, have not provided the Court with any case standing for the proposition that mask mandates in schools implicate Parent Plaintiffs’ fundamental right to direct the upbringing of their children under the U.S. Constitution. See generally Resp. Rather, Plaintiffs point to cases in which Florida courts have found that individuals have a fundamental right, under the Florida Constitution, to control their own bodies and holding that "a person can reasonably expect not to be forced by the government to put something on his own face against his will." Resp. at 9 (citing Green v. Alachua County , 323 So. 3d 246, 251–252 (Fla. Dist. Ct. App. June 11, 2021) ). This argument, under Florida law, has no bearing on Plaintiffs’ rights under the U.S. Constitution. Plaintiffs also seek to distinguish cases such as Olberheim because in Florida, the state has ended its state of emergency and has enacted laws and regulations providing for parental opt-outs from mask mandates in schools. Resp. at 13. Again, Plaintiffs fail to appreciate that the laws and regulations of Florida do not inform a judicial determination as to Plaintiffs’ rights under the U.S. Constitution. Plaintiffs’ failure to provide legal precedent as to a right, under the U.S. Constitution, for parents to opt their children out of mask mandates sounds loudly because the U.S. Supreme Court and the Eleventh Circuit have offered strong guidance against expanding doctrines borne of substantive due process. Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ("The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field."); Waddell v. Hendry Cty. Sheriff's Off. , 329 F.3d 1300, 1304 (11th Cir. 2003) ("We must take seriously the Supreme Court's caution against expanding the concept of substantive due process."); Nix v. Franklin County School Dist. , 311 F.3d 1373, 1379 (11th Cir. 2002) (" ‘As a general matter, the [Supreme] Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this [uncharted] area are scarce and open-ended.’ " (quoting Collins , 503 U.S. at 125, 112 S.Ct. 1061 )). In the absence of any direct precedent on the issue, the Court heeds the guidance from the Supreme Court and Eleventh Circuit and declines to expand the doctrine of substantive due process under the Fourteenth Amendment to encompass a right for parents to opt their children out of mask mandates.
b. The Right to Bodily Autonomy.
Defendants argue that a mask requirement is distinguishable from circumstances in which the Supreme Court has found government actions to violate the fundamental right to bodily autonomy. Id. at 8 (citing Zinman v. Nova Se. Univ., Inc. , No. 21-CV-60723, 2021 WL 4025722, at *17 (S.D. Fla. Aug. 30, 2021) (citing Washington v. Harper , 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) ; Cruzan by Cruzan v. Dir., Missouri Dep't of Health , 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) )). In response, Plaintiffs argue that the Mask Mandate implicates the fundamental right to bodily autonomy. Resp. at 17–20.
The Supreme Court has held that, under the Fourteenth Amendment, "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment[.]" Cruzan by Cruzan v. Dir., Missouri Dep't of Health , 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (citing Harper , 494 U.S. at 221–22, 110 S.Ct. 1028 ("The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty.")).
Courts in the Southern District of Florida have found that mask mandates do not qualify as a "compulsory bodily intrusion" or as "medical treatment" and, therefore, do not implicate the right to bodily autonomy under the Fourteenth Amendment. Zinman v. Nova Se. Univ., Inc. , No. 21-cv-60723, 2021 WL 4025722, at *17 (S.D. Fla. Aug. 30, 2021), report and recommendation adopted sub nom. Zinman v. Nova Se. Univ. , No. 21-cv-60723-RAR, 2021 WL 4226028 (S.D. Fla. Sept. 15, 2021) ("Wearing a mask on the outer surface of one's face to cover one's nose and mouth does not ‘intrude’ within one's body; it certainly is significantly different in kind and degree from the circumstances at issue in the cases upon which Plaintiff generally relies." (citing Cruzan , 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 ; Harper , 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 )). The Court agrees that the circumstance of being required to wear a mask is distinguishable from compulsory medical treatment and the School Board's Mask Mandate, therefore, does not implicate Plaintiffs’ right to bodily autonomy.
As discussed above, the Supreme Court and the Eleventh Circuit have cautioned courts from finding new substantive due process rights. Collins , 503 U.S. at 125, 112 S.Ct. 1061 (1992) ; Nix , 311 F.3d at 1379. A finding that a mask requirement intrudes upon a plaintiff's right to bodily autonomy would be a substantial expansion of the limited right that has been identified in this context, and the Court declines to do so here.
Insofar as Plaintiffs rely on cases involving vaccine mandates as standing for the proposition that mask mandates are unconstitutional, the Court finds that the circumstance of receiving a vaccine and wearing a mask are distinguishable because, unlike masks, vaccines are: (1) appropriately characterized as medical treatment, and (2) injected into a person's body. Resp. at 13–14 (citing Dr. A., et al. v. Kathy Hochul et al. , Case No. 1:21-cv-01009-DNH-ML, ECF No. 22, at 21 (N.D.N.Y. Oct. 12, 2021) (applying strict scrutiny to vaccine mandate in challenge arising under the Free Exercise Clause)); Dahl v. Bd. of Trustees of W. Michigan Univ. , No. 1:21-CV-757, 558 F.Supp.3d 561, 564 (W.D. Mich. Aug. 31, 2021) (same).
These cases are also distinguishable because, as discussed below, they arise under the context of alleged infringement upon individuals’ religious freedoms. Additionally, the Court need not—and does not—reach the issue of the constitutionality of vaccine mandates under the U.S. Constitution.
c. Other Fundamental Rights.
Defendants contend that Plaintiffs have not invoked any of the rights to privacy that have been found to exist within the liberty component of the Fourteenth Amendment, such as the right to avoid disclosure of personal information or an individual's autonomy to make certain decisions regarding marriage, procreation, and contraception. Id. at 6–7 (citing Padgett v. Donald , 401 F.3d 1273, 1280 (11th Cir. 2005) ; Roe v. Wade , 410 U.S. at 152–53, 93 S.Ct. 705 (1973) ). Defendants also argue there is no fundamental right to education under the doctrine of substantive due process. Id. at 8–9 (citing C.B. By & Through Breeding v. Driscoll , 82 F.3d 383, 387 (11th Cir. 1996) ; Oberheim, 565 F.Supp.3d at 617-19 ; Guilfoyle , 2021 WL 4594780, at *14 ). Finally, Defendants argue that a mask mandate does not rise to the level of "conscience-shocking in a constitutional sense." Mot. at 9 (citing Davis v. Carter , 555 F.3d 979, 982 (11th Cir. 2009) ; Zinman , 2021 WL 4025722, at *17 ; Forbes v. Cty. of San Diego , No. 20-CV-00998-BAS-JLB, 2021 WL 843175, at *5 (S.D. Cal. Mar. 4, 2021) ).
Plaintiffs have not directly addressed Defendants’ arguments with respect to the aforementioned rights in their response. See generally Resp. Rather, Plaintiffs have centered their arguments on the fundamental rights to bodily autonomy and to make child-rearing decisions, as discussed above. Id. at 12–14.
The Court finds Plaintiffs’ reliance on cases arising from challenges under the Free Exercise Clause to vaccine mandates to be unpersuasive because those cases present discrete legal issues involving religious rights that are not before the Court in this case. Dr. A , Case No. 1:21-cv-01009-DNH-ML, ECF No. 22, at 21 (applying strict scrutiny to vaccine mandate in challenge arising under the Free Exercise Clause); Dahl, 558 F.Supp.3d at 564-65 (same). Additionally, Plaintiffs’ reliance on cases premised on the right to privacy, in the context of vaccine mandates, under Florida's Constitution do not inform the Court's ruling on Plaintiffs’ rights under the U.S. Constitution. See, e.g. , Resp. at 13 (citing Friend, et al. v. City of Gainesville , Case No. 01-2021-CA-2412, at 3–5 (Fla. 8th Cir. Ct. 2021) (enjoining the City of Gainesville's vaccine mandate based on the right to privacy under the Florida Constitution)).
As discussed above, the U.S. Supreme Court and the Eleventh Circuit have offered guidance against expanding doctrines borne of substantive due process. Collins , 503 U.S. at 125, 112 S.Ct. 1061 ; Nix , 311 F.3d at 1379. Thus, the Court declines to expand the doctrine of substantive due process to find that Plaintiffs have a right not to wear masks as to: (1) the fundamental right to avoid disclosure of personal information, (2) the fundamental right to autonomy to make certain decisions regarding marriage, procreation, and contraception, and (3) the alleged fundamental right to education. Additionally, the Court agrees with other courts that have found that mask mandates are not "conscience-shocking in a constitutional sense." Zinman , 2021 WL 4025722, at *17 ("[T]he mask mandates cannot plausibly be characterized as egregious or ‘arbitrary or conscience shocking in a constitutional sense.’ "); Forbes , 2021 WL 843175, at *5 ("Plaintiff does not plausibly state the Mask Rules shock the conscience").
Having established that no fundamental right under the U.S. Constitution is implicated in this case, the Court proceeds to rational basis review. Fresenius , 704 F.3d at 945.
2. The School Board's Mask Mandate Is Rationally Related to a Legitimate Governmental Interest.
Defendants contend that the Mask Mandate withstands rational basis review because courts have recognized that: (1) there is a legitimate state interest in controlling the spread of COVID-19 within schools, and (2) mask mandates are rationally related to that interest. Mot. 9–11. Defendants’ arguments are centered on the Mask Mandates consistency with applicable guidelines from the Centers for Disease Control and Prevention ("CDC").
In response, Plaintiffs do not contend that there is no legitimate state interest in controlling the spread of COVID-19 in schools. See generally Resp. Rather, Plaintiffs argue that the Mask Mandate is arbitrary and vigorously dispute the notion that the Mask Mandate is rationally related to the legitimate interest in curbing the spread of COVID-19. Id. at 17–20. Plaintiffs contend that various studies, cited in the Amended Complaint, show that the use of masks have no effect on the spread of COVID-19 and, even, pose dangers to those who wear masks. Id. Plaintiffs also contend that Defendants reached their decision in an arbitrary manner based on a statement made by Defendant Burke at a school board meeting. Id. at 4–5.
In reply, Defendants contend that the statement by Defendant Burke has been taken out of context and, in any event, does not run afoul of the standards that govern rational basis review. Reply at 4 (citing Jones v. Governor of Florida , 950 F.3d 795, 809 (11th Cir. 2020) (concluding that the appropriate question is whether there is any rational basis, "even if the government's proffered explanation is irrational, and even if it fails to offer any explanation at all.")). Defendants contend that this statement does not change that the School Board's Mask Mandate is consistent with the guidance from the CDC. Id. at 4–5. Defendants also contend that although there may be information indicating that masks are ineffective and unsafe, there is also information showing that masks are effective and safe. Id. at 5–6. Finally, Defendants argue that the CDC's protocols for proper mask wearing mitigate concerns over the masks being "dirty" and there are measures that individuals can take to prevent rashes in the event they occur due to mask wearing. Id. at 7. "When a challenged law does not infringe upon a fundamental right, we review substantive due process challenges under the rational basis standard." Fresenius Med. Care Holdings, Inc. v. Tucker , 704 F.3d 935, 945 (11th Cir. 2013). When undertaking rational basis review, a court asks " ‘whether the government has the power or authority to regulate the particular area in question,’ and whether the proposed regulation has a ‘legitimate governmental purpose.’ " Georgia Elec. Life Safety & Sys. Ass'n, Inc. v. City of Sandy Springs, Georgia , 965 F.3d 1270, 1275 (11th Cir. 2020) (citing Cash Inn of Dade, Inc. v. Metropolitan Dade County , 938 F.2d 1239, 1241 (11th Cir. 1991) ). "Under rational basis review, a law must be rationally related to a legitimate governmental interest and it ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification’ between persons." Jones , 950 F.3d at 809 (quoting F.C.C. v. Beach Commc'ns, Inc. , 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) ). Where "plausible reasons" exist for government action, the Court's "inquiry is at an end." Beach Commc'ns , 508 U.S. at 314, 113 S.Ct. 2096. The party bringing a substantive due process challenge "bear[s] the burden of demonstrating that the [regulation] lacks a rational basis." Fresenius , 704 F.3d at 945.
Courts have recognized that the standards for rational basis review for equal protection claims and substantive due process claims are "virtually identical." In re Wood , 866 F.2d 1367, 1371 (11th Cir. 1989) ("The standard for evaluating substantive due process challenges to social and economic legislation is virtually identical to the ‘rational relationship’ test for evaluating equal protection claims."). Thus, at times, the Court relies on cases engaging in rational basis review of equal protection claims in the instant analysis of Plaintiffs’ substantive due process claim.
Here, the Court finds that Plaintiffs have failed to meet their burden of demonstrating that the Mask Mandate fails rational basis review.
To begin, there is no dispute that Defendants have a legitimate interest in combatting the spread of COVID-19. Mot. at 9–11; Resp. at 17–20. The Court agrees with other courts which have recognized that "schools have ‘a legitimate interest in promoting the health and safety of its students,’ which extends to efforts ‘to reduce the spread of COVID-19 among students and school employees.’ " Oberheim, 565 F.Supp.3d at 619 ; see also Guilfoyle , 2021 WL 4594780, at *14. Having established the existence of a legitimate state interest, the Court turns to whether the School Board's Mask Mandate is rationally related to that interest.
Plaintiffs have pointed to various sources in support of their contention the use of masks to curtail the spread of COVID-19 is arbitrary and irrational, including: (1) the expert report of Stephen E. Petty, ("Petty Report") (ECF No. 16-1), which opines that the masks required by the Mask Mandate "do not filter out [COVID-19] aerosols" and that there are at least six less restrictive means for preventing COVID-19 (such as opening windows, fans, HVAC modifications, etc.), Resp. at 17–18 (citing Petty Report ¶¶ 42, 67–73); (2) a CDC report indicating that COVID-19 transmission does not appear to be more transmissible in schools than in non-educational settings, id. at 18 (citing Am. Compl. ¶ 85), (3) findings by the Florida Department of Education that show masks do not impact the spread of COVID-19 in schools and actually cause harm to children, id. at 18–19 (citing Am. Compl. ¶ 99); (4) a study from the University of Florida which shows that dangerous pathogens have been found on masks worn by children during the school day, id. at 19 (citing Am. Compl. ¶ 76); and (5) a study showing a mortality rate of zero for children without pre-existing conditions such as leukemia, Am. Compl. ¶ 84, Resp. at 20.
Defendants have offered cogent responses to each of these arguments in their reply. For example, of course, it is a concern that a scientific study found dangerous pathogens on children's masks. Yet, as noted by Plaintiffs, it could be argued that the whole point of masks is to stop dangerous pathogens and, therefore, it is not unexpected that harmful bacteria might be found on a mask. Reply at 4–8. This underscores the Court's finding below that rational minds can differ on the efficacy and safety of masks.
Yet, the School Board's Mask Mandate is consistent with guidance from the CDC. At Plaintiffs’ request, Mot. at 10, the Court takes judicial notice that the CDC has recommended universal masking for students, staff, teachers, and visitors, with limited exceptions. See CENTERS FOR DISEASE CONTROL AND PREVENTION , Guidance for COVID-19 Prevention in K-12 Schools , available at https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html (last visited: Oct. 28, 2021). The CDC's guidance for mask wearing in schools incorporates by reference its "Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2." See CENTERS FOR DISEASE CONTROL AND PREVENTION , Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2 , available at https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-cov2.html (last visited: Oct. 28, 2021). Therein, the CDC cites sixty-five (65) studies supporting the efficacy of masks to combat the spread of COVID-19. Id. Thus, the sources cited by Plaintiffs can hardly be cast as the final authority on this issue as there is clearly an ongoing debate in the scientific community over the efficacy of masks. Plaintiffs may disagree with the CDC guidelines or dismiss them as arbitrary, but that does not change that the CDC's guidelines, like Plaintiffs’ views on the efficacy of masks, are supported by scientific studies.
Federal Rule of Evidence 201 provides that "[t]he court may judicially notice a fact that is not subject to reasonable dispute because ... it can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned." Fed. R. Evid. 201(b)(2) ; Am. Marine Tech, Inc. v. World Grp. Yachting, Inc. , 418 F. Supp. 3d 1075, 1081 (S.D. Fla. 2019) (citing Horne v. Potter , 392 Fed. Appx. 800, 802 (11th Cir. 2010) (consideration of "public records that were not subject to reasonable dispute because they were capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned" appropriate on motion to dismiss)). Here, the Court finds that the CDC guidelines recommending masking in school are a matter of public record and takes judicial notice of the same.
Other federal courts that have confronted the scientific debate over masks when conducting rational basis review for mask mandates have concluded that mask requirements are rationally related to the government's legitimate interest in combatting the spread of COVID-19. Oakes v. Collier Cty. , 515 F. Supp. 3d 1202, 1209 (M.D. Fla. 2021) (" Some may disagree with the public health efficacy of mask orders. But federal courts do not sit in a policy-checking capacity to second guess the wisdom of state legislative acts .") (emphasis added); Denis v. Ige , No. CV 21-00011 SOM-RT, 538 F.Supp.3d 1063, 1078-79 (D. Haw. May 12, 2021) ; Forbes , 2021 WL 843175, at *5.
"The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." F.C.C. v. Beach Commc'ns, Inc. , 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (quoting Vance v. Bradley , 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) ). Although Plaintiffs have raised valid points about the efficacy of masks, the Court cannot find that Defendants are irrational for following the recommendations of the CDC which, as the Court has noted, are formulated based upon a great deal of scientific research. Ultimately, the efficacy of masks is a question best left to the scientific community and participants in the democratic process. The Court will not short circuit that debate by inserting its own view on an issue where rational minds can differ. Accordingly, the Court finds that Defendants’ Mask Mandate is rationally related to a legitimate governmental interest.
At a hearing held by the school board, Defendant Burke stated "[w]e say that we're going to adhere to different ... protocols, including the Department of Health, CDC, state, and local guidelines .... You may want to strike that whole paragraph at this point. We're making up our own rules." Am Compl. ¶ 114. Defendants contend that this statement was taken out of context. Yet, context aside, the Court's inquiry is directed to whether there is any rational basis for the School Board's policy—not whether the School Board's stated reasoning is irrational. Jones , 950 F.3d at 809 ("When we review a statute for rationality, generally we ask whether there is any rational basis for the law, even if the government's proffered explanation is irrational, and even if it fails to offer any explanation at all."). Thus, the Court's above finding that the School Board's Mask Mandate is rationally related to a legitimate governmental objective is not undermined by Defendant Burke's statement, which may or may not lack context.
Insofar as Plaintiffs allege that masks may cause rashes or children may not like to wear them, these allegations do not render the Mask Mandate to be irrational in its relation to the School Board's efforts to control the spread of COVID-19. Additionally, Plaintiffs’ argument that there are less restrictive alternatives to masks (such as opening windows or modifying HVAC systems) would only be relevant if the Court were applying strict scrutiny. The Court finds these arguments to be irrelevant under the standards of rational basis review. Cash Inn of Dade, Inc. v. Metro. Dade Cty. , 938 F.2d 1239, 1243 (11th Cir. 1991) (stating that rational basis review does not require a least restrictive means analysis). Defendants may be well advised to consider the less restrictive means highlighted by Plaintiffs, but the U.S. Constitution does not require them to.
Additionally, to the extent that Plaintiffs contend that the School Board's Mask Mandate is irrational because it is contrary to Florida law, Plaintiffs have not cited any law for the proposition that the legality of mask mandates under Florida law should govern the Court's rational basis review under the U.S. Constitution. See generally Resp. As discussed further below, any conflict between the Mask Mandate and Florida's Constitution, laws, and regulation is properly decided by state courts. Lastly, the Court finds Plaintiffs’ reliance on cases arising from religious challenges to vaccine mandates unpersuasive because those cases applied strict scrutiny—not rational basis review. Dr. A. , Case No. 1:21-cv-01009-DNH-ML, ECF No. 22, at 21 (applying strict scrutiny to vaccine mandate in challenge arising under the Free Exercise Clause); Dahl, 558 F.Supp.3d at 564-65 (same).
Plaintiffs also cite to Oswald v. Beshear in support of their argument that Defendants’ Mask Mandate is unconstitutional. Resp. at 13 (citing Oswald v. Beshear , No. 2:21CV96 (WOB-CJS), 555 F.Supp.3d 475, 478-79 (E.D. Ky. Aug. 19, 2021) ). In Oswald , a court in the Eastern District of Kentucky enjoined a school's mask mandate as contrary to state law. Oswald, 555 F.Supp.3d at 478-79. The laws of Kentucky do not inform the Court's assessment of whether the School Board's Mask Mandate is rational in this case. Moreover, the Court notes that Oswald was removed to federal court based on claims under the First Amendment to the U.S. Constitution. Notice of Removal, No. 2:21-cv-00096-DLB-CJS, 2021 WL 3628167 (E.D. Ky. Aug. 16, 2021). Thus, the issue of Kentucky law appears to have been before the Oswald court pursuant to its supplemental jurisdiction over state law claims. Oswald, 555 F.Supp.3d at 478 n.2. Therefore, this case is not persuasive here because, as set forth below, there is no basis for federal jurisdiction in this case.
In sum, Plaintiffs have raised legitimate concerns as to the efficacy of masks, but it cannot be said that the use of facial coverings to control the spread of COVID-19 is irrational. Insofar as Plaintiffs would have the Court enjoin the School Board's Mask Mandate simply because they disagree with it—Plaintiffs would be wise to heed the words of the late Justice Scalia: "a lot of stupid stuff is perfectly constitutional."
See Bay City News, Justice Scalia: "A lot of stupid stuff is perfectly constitutional." (Sept. 18, 2010), http://sfappeal.com/2010/09/justice-scalia-a-lot-of-stupid-stuff-is-perfectly-constitutional/.
For these reasons, Defendants’ Motion as it pertains to Counts II and III is GRANTED.
C. Plaintiffs Have Failed to State an Equal Protection Claim under the U.S. Constitution.
The basis for Plaintiffs’ equal protection claim is not entirely clear. In Count IV of the Amended Complaint, Plaintiffs claim that the Mask Mandate "singles out" Minor Plaintiffs because Parent Plaintiffs would like to opt them out of the Mask Mandate. Am. Compl. ¶ 300. Additionally, Plaintiffs allege that the School Board's Mask Mandate "arbitrarily draws distinctions between students with ‘approved’ disabilities and non-disabled students based on differences irrelevant to any legitimate governmental objective." Id. ¶ 301.
Defendants argue that Plaintiffs have failed to state a claim for a violation of their rights to equal protection under the Fourteenth Amendment because (1) Plaintiffs have failed to allege a suspect, or quasi suspect, classification, and (2) the School Board's Mask Mandate withstands rational basis review. Mot. at 13–14. In response, Plaintiffs do not specifically address their claims that the Mask Mandate unlawfully "singles out" Plaintiffs’ children or arbitrarily draws distinctions between disabled children and other children. See generally Resp. Rather, Plaintiffs contend that the Mask Mandate is arbitrary and irrational in general. Id. at 4–5, 17–20.
"The Constitution guarantees that ‘[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.’ " Jones , 950 F.3d at 808–09 (citing U.S. Const. amend. XIV). "Whenever the law classifies and treats people differently, then, [courts] have occasion to ask whether the equal protection of the law has been violated." Id. "[The] Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Id. (quoting Romer v. Evans , 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) ). "The Supreme Court's longstanding interpretation of the Equal Protection Clause accommodates those practicalities and respects the primary role of the legislature by requiring only a rational basis to sustain most state classifications." Id. (quoting Romer , 517 U.S. at 631, 116 S.Ct. 1620 ). "[Courts] look through a different prism, however, when the law classifies in certain suspect ways—prototypically, on the basis of race, gender, or national origin—or classifies in a way that burdens fundamental rights. Such classifications are subject to heightened scrutiny, a more exacting form of review." Id. (citing Loving v. Virginia , 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (applying heightened scrutiny to race classification); Craig v. Boren , 429 U.S. 190, 197–99, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (applying heightened scrutiny to gender classification) (other citations omitted)).
Here, Plaintiffs have not identified a suspect classification that would trigger review under heightened scrutiny. See generally Resp.; see also Am. Compl. ¶¶ 296–309. Therefore, the Court will review the extent to which the Mask Mandate draws classifications regarding disabled children or "singles out" Minor Plaintiffs under the less exacting rational basis standard. Jones , 950 F.3d at 809. Now, the Court turns, again, to whether the Mask Mandate is rationally related to a legitimate governmental interest.
Courts have noted that the standards for rational basis review for equal protection claims and substantive due process claims are "virtually identical." In re Wood , 866 F.2d 1367, 1371 (11th Cir. 1989) ("The standard for evaluating substantive due process challenges to social and economic legislation is virtually identical to the ‘rational relationship’ test for evaluating equal protection claims."); see also Leib v. Hillsborough Cty. Pub. Transp. Comm'n , 558 F.3d 1301, 1308 (11th Cir. 2009) ("Since the Commission's rules survived rational basis review for purposes of Leib's equal protection claim, it follows a fortiori that the rules survive rational basis review here as well."). However, in the context of a challenge to a classification under the Equal Protection Clause, the reviewing court's focus is on the classification. Jones , 950 F.3d at 809 ("Under rational basis review, a law must be rationally related to a legitimate governmental interest and it ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification’ between persons." (quoting Beach Commc'ns, 508 U.S. 307, 313, 113 S.Ct. 2096 (1993) )). Thus, for the reasons the Court found Plaintiffs’ substantive due process challenge to fail under rational basis review stated above, the Court finds that Plaintiffs’ equal protection claim fails for the same reasons. In re Wood , 866 F.2d at 1371.
Insofar as Plaintiffs’ equal protection claim is premised upon the "singling out" of Minor Plaintiffs or alleged arbitrary distinctions involving disabled children—the Court finds that these theories do not change the outcome of the Court's above finding. Simply put, Defendants’ decision to allow disabled children to be exempt from the Mask Mandate is not irrational. See Oakes, 515 F. Supp. 3d at 1212 (denying equal protection challenge to mask mandate).
For these reasons, Defendants’ Motion as to Count IV is GRANTED.
D. In the Absence of Any Viable Claim under Federal Law, the Court Declines to Exercise Jurisdiction over Plaintiffs’ Remaining Claims under Florida Law.
At various points in their Response, Plaintiffs have sought to distinguish cases relied upon by Defendants, such as Guilfoyle or Oberheim , on the basis of Florida's Constitution, laws, and regulations. Resp. at 13. Indeed, substantial portions of Plaintiffs’ response are dedicated solely to issues of Florida law. Resp. at 14–17. It is true that the laws and regulations of Florida are an important point of distinction in this case. For example, (1) Florida's Parents Bill of Rights law affords parents more control over the upbringing of their children than exists under federal law, see Fla. Stat. § 1014.02 ; (2) Department of Health Emergency Rule 64DER21-15 explicitly directs schools to allow parents to opt their children out of mask mandates, see 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, see also Scott v. DeSantis , Case No. 1D21-2685 (Fla. Dist. Ct. App. Sept. 10, 2021); and (3) in the context of pandemic-related public health measures, the Florida Constitution appears to afford individuals a comparatively more expansive right to privacy than does the U.S. Constitution, see Friend , Case No. 01-2021-CA-2412, at 3–5; Green , 323 So. 3d at 250. Indeed, a separate group of plaintiffs has brought a lawsuit in Florida Court against the School Board of Palm Beach County that is premised upon the aspects of Florida law discussed above. Bolt v. School Bd. of Palm Beach County , Case No. 502021CA011319 (Fla. Cir. Ct. Oct. 4, 2021).
As noted in one of the Parties’ filings in this case, (ECF No. 18), the Court recently had occasion to review the extent to which Florida's laws and regulations conflict with the Americans with Disabilities Act ("ADA") in Hayes v. DeSantis , No. 1:21-CV-22863-KMM, 561 F.Supp.3d 1187 (S.D. Fla. Sept. 15, 2021). In that case, the plaintiffs sought to have schools impose a universal mask mandate, as opposed to a parental-opt-out mask mandate, in the interest of protecting immunocompromised children. Id. at 1196-97. In consider a motion for preliminary injunction, the Court found that the plaintiffs’ claim was likely to fail on the merits in light of their failure to exhaust their administrative remedies, as required under the Individuals with Disabilities Education Act ("IDEA"). Id. at 1204-05. That case presented discrete legal issues that are highly distinguishable from this case where, at bottom, the Court is simply addressing whether mask mandates are rational. However, it is noteworthy to the extent it highlights that state and federal laws have independent and substantial effects on the subject of pandemic-related public health measures—especially in Florida.
The Eleventh Circuit has "encouraged district courts to dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to trial." Raney v. Allstate Ins. Co. , 370 F.3d 1086, 1089 (11th Cir. 2004). Thus, having found that Plaintiffs have failed to state a federal claim in this case, and because identical claims are already being pursued in state court against the same Defendant School Board, the Court declines to exercise supplemental jurisdiction over Plaintiffs’ pendant claims based on Florida law. Consequently, Defendants’ Motion as it pertains to Counts V, VI, VII, VIII, and XI is GRANTED.
Because the Court has found that Plaintiffs have failed to state a claim upon which relief can be granted, or the Court is otherwise without jurisdiction, as to each claim asserted in the Amended Complaint, the Court need not address Defendants’ arguments that the claims against Defendants Burke and Barbieri should be dismissed as duplicative. Additionally, the Court finds that the Amended Complaint's inclusion of references to studies or other evidence do not violate Rule 8(a)(2) and, rather, are simply allegations of fact that are properly included in a complaint.
E. Plaintiffs’ Request for a Permanent Injunction Is Moot.
Finally, because the Court has found that Plaintiffs claims are either without merit or that the Court lacks jurisdiction, the Court finds that Plaintiffs’ claim seeking a permanent injunction is properly dismissed. Therefore, Defendants’ Motion as to Count X is GRANTED.
IV. CONCLUSION
UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED Defendants’ Motion to Dismiss (ECF No. 23) is GRANTED. Accordingly, Plaintiffs’ Amended Complaint (ECF No. 16) is DISMISSED WITH PREJUDICE. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of October, 2021.