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Judge denies motion to dismiss lawsuit challenging Gov. DeSantis' school mask mandate ban

Both sides will now argue their case during a three-day hearing beginning Aug. 23.

LEON COUNTY, Fla. — Editor's Note: The video in the player above is from an interview with the attorneys who filed the lawsuit.

A Florida judge ruled Thursday to deny the state's motion to dismiss a lawsuit filed by several Tampa Bay area attorneys to challenge Gov. Ron DeSantis' ban on mask mandates in schools. 

"These parents and children, they have a right to have their case heard in court," Cooper added.

According to Cooper, the plaintiffs in the case met all three elements of standing, which was one of the state's reasons for wanting to dismiss. He also noted a reversal rate on judges who rule solely based on a motion to dismiss as a contributing factor behind his decision.

Both sides now will argue their case during a three-day hearing beginning Aug. 23. Then Judge Cooper is expected to deliver his ruling on Aug. 26.

RELATED: 'Not an appropriate thing to do': Fauci takes aim at DeSantis' refusal to mandate masks in schools

The motion to dismiss filed by attorneys representing DeSantis, Education Commissioner Richard Corcoran and the Florida Department of Education claimed the lawsuit had "significant deficiencies." Specifically, saying the lawsuit didn't have legal grounds because the argument over mask mandates in schools should be between school districts and DeSantis, not parents, per the state Constitution. 

In response, the plaintiffs argued the Florida Constitution empowers local school districts and boards "the right of self-governance" and challenged DeSantis' ability to prevent them from acting in such a manner. The state of COVID-19 in Florida and the safety of children were also mentioned.

The judge ultimately sided with the plaintiffs.

RELATED: Back-to-school safety checklist for parents concerned about COVID-19 and the delta variant

The lawsuit, claiming the governor's ban on mandating masks in schools violates the Florida Constitution, was first filed on Aug. 6.

“Our main argument is that there's an irreparable harm,” said Natalie Paskiewicz, a St. Petersburg-based attorney who recently joined the legal team.

Charles Gallagher, a St. Petersburg attorney and father of two school-aged daughters, says the 67 school boards across the state are very different from one another. Each district should be given the authority to make the decisions that are best for their communities.

Craig Whisenhunt, another attorney on the case says the lawsuit is not in favor of a mask mandate, it just gives school boards the control to make that decision.

RELATED: Here's how to track reported COVID-19 cases at Tampa Bay area school districts

DeSantis has been firm in giving parents the freedom on whether to send their children back to school in a mask and his executive order supports that. The potential consequence of violating that order is the loss of funds equivalent to each respective school district's superintendent's salary.

So far, several counties, including Hillsborough County, have defied the governor's mask mandate ban by requiring a doctor's note for students choosing to opt out.

"We are confident in the legal basis for protecting parents’ freedom to choose whether their own children wear masks or not.," the governor's office told 10 Tampa Bay early on in the legal process.

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