TALLAHASSEE, Fla. – A Florida judge ruled Wednesday that the state cannot enforce a ban on public schools mandating the use of masks to guard against the coronavirus, while an appeals court sorts out whether the ban is ultimately legal.
Leon County Circuit Judge John C. Cooper lifted an automatic stay of his decision last week that Republican Gov. Ron DeSantis and state education officials exceeded their authority by imposing the blanket ban through executive order and tagging defiant pro-mask local school boards with financial penalties.
Cooper said the overwhelming evidence before him in a lawsuit by parents challenging the DeSantis ban is that wearing masks does provide some protection for children in crowded school settings, particularly those under 12 for whom no vaccine yet exists. The issue came to a head amid a recent surge in cases caused by the more contagious and deadly delta variant of the virus, which health statistics show has begun to wane.
“We’re not in normal times. We are in a pandemic,” Cooper said during a hearing held remotely. “We have a (coronavirus) variant that is more infectious and dangerous to children than the one we had last year.”
Since DeSantis signed the mandatory mask ban order on July 30, 13 school boards representing more than half of Florida’s 2.8 million students have adopted mask requirements with an opt-out only for medical reasons. State education officials have begun going after rebellious school board members’ salaries as a form of punishment.
Jacob Oliva, public schools chancellor at the state Department of Education, said in a notice last week to local superintendents that “enforcement must cease if the stay is lifted.” That includes the effort to dock salaries of school board members or impose other financial penalties.
The Education Department already began withholding funds from Broward and Alachua counties.
“I think for us as a district, we’re going to continue to move forward,” said Dr. Carlee Simon, the Alachua County School District superintendent. “But we are, you know, we’re optimistic. And we’re also just understanding that we are well in the middle of this process, and we need to just be patient and go through the process.”
Duval County Public Schools’ mask mandate went into effect Tuesday, despite being threatened with the same funding cuts. A district spokesperson released a statement that reads:
“We are obviously watching as things play out at the state level. However, we are doing everything possible to focus on teaching and learning and working toward those academic outcomes we want to see at the end of the year with our students.”
Simon said she’s hopeful that the district will get the money back that’s been withheld by the state.
The case next goes before the 1st District Court of Appeal in Tallahassee. DeSantis said at an appearance Wednesday in Palm Harbor that he is confident the state will prevail. The matter could ultimately be decided by the Florida Supreme Court.
The core of the governor’s argument is that the recently passed Parents Bill of Rights gives decision-making authority to parents on whether their children should wear a mask to school.
“What we’ve found is in the trial courts in Tallahassee, state and federal, we typically lose if there’s a political component to it, but then in the appeals court we almost always win,” the governor said.
Cooper seemed to go out of his way to point out that he has frequently ruled in favor of Florida governors in the past, including cases involving GOP Govs. Jeb Bush and Rick Scott. Cooper has been a Leon County circuit judge since he was first elected in 2002.
“If you look at my record, it’s not somebody who runs all over the place, ruling against the governor,” Cooper said. “This case has generated a lot of heat and a lot of light.”
On the Parents Bill of Rights, Cooper said his previous order follows the law as passed earlier this year by the Legislature. The law, he said, reserves health and education decisions regarding children to parents unless a government entity such as a school board can show their broader action is reasonable and narrowly tailored to the issue at hand.
The DeSantis order impermissibly enforces only the first portion of that law, Cooper said.
“You have to show you have authority to do what you’re doing,” the judge said. “You cannot enforce part of that law but not all of it.”
In a separate case, parents of special needs children have filed a federal lawsuit claiming the DeSantis mandatory school mask ban violates the Americans with Disabilities Act by placing their medically sensitive children in jeopardy.
A federal judge in Miami did not immediately rule after a hearing Wednesday in that case.
Additionally, school officials in Broward, Alachua and Orange counties filed a petition to schedule a hearing before an administrative law judge. According to the filing, the local school officials want the judge to invalidate a state health department emergency rule against school mask requirements based on the governor’s executive order.
Gov. Ron DeSantis appeals judge’s ruling on masks in schools
Under the DeSantis executive order, state education officials have been seeking to penalize defiant school boards by withholding salaries of board members. As of Friday, 13 districts representing more than half of Florida’s 2.8 million public school students had imposed mask mandates despite the governor’s order that a parental opt-out must be included. Most have only an opt-out for medical reasons. Those counties included Alachua and Duval counties.
The rebel districts showed no signs of backing down, with some hiring lawyers to defend their decisions that often came after raucous public meetings pitting pro- and anti-mask parents against each other. Alachua County school Superintendent Carlee Simon, like others, insisted a mask mandate is permitted under the Parents Bill of Rights.
The judge’s ruling against the DeSantis order, she said in a statement, “confirms what we’ve said all along, which is that our mask mandate does not violate Florida law.”
DeSantis, who is gearing up for a 2022 re-election campaign and a possible 2024 presidential run, has dismissed the recommendation from the Centers for Disease Control and Prevention that people generally wear masks to prevent coronavirus spread in certain situations. In particular, he contends that masks are less essential for young people and carry some risks of their own for children.
At a news conference Friday in Pensacola, DeSantis said he opposes broad government or business mandates on masks or anything else related to the coronavirus pandemic. He did not directly address the school mask debate.
“We’ve got to protect people’s ability to live their lives,” DeSantis said. “My philosophy is, as a governor, my job is to protect your individual freedom.”
The governor’s appeal came Thursday night after Cooper issued a written version of his order delivered orally last week. The judge found that the Parents Bill of Rights law exempts government actions that are needed to protect public health and are reasonable and limited in scope — such as masking students to prevent the spread of COVID-19 in schools.
In fact, Cooper wrote that the DeSantis order on school masks itself violates the Parents Bill of Rights by illegally constraining the actions of school boards.
“This statute does not support a statewide order or action interfering with the constitutionally provided authority of local school districts to provide for the safety and health of the children based on the unique facts on the ground in a particular county,” Cooper wrote.
In addition, the judge said school boards must be afforded a chance to contest any penalties levied against them for adopting a student mask mandate.
The appeals court did not immediately indicate when it would take up the governor’s appeal, which first must be filed in a full written document. The action taken Thursday night was a notice to the court that a detailed appeal of Cooper’s order is coming.
Also Friday, school officials in Broward, Alachua and Orange counties filed a petition to schedule a hearing before an administrative law judge. According to the filing, the local school officials want the judge to invalidate a state health department emergency rule based on the governor’s executive order.