Play Live Radio
Next Up:
0:00
0:00
Available On Air Stations
Health News Florida
News about coronavirus in Florida and around the world is constantly emerging. It's hard to stay on top of it all but Health News Florida can help. Our responsibility is to keep you informed, and to help discern what’s important for your family as you make what could be life-saving decisions.

Plaintiff Attorney Calls Judge's Mask Ruling 'Bulletproof' If Appealed

Carol Basilio, Giovanna
Lynne Sladky
/
The Florida CHannel
Gov. Ron DeSantis has said he believes parents should make the decision on whether children wear masks in schools.

A judge rules that school districts may impose mask mandates, agreeing with a group of parents who claimed Gov. Ron DeSantis' ban on the mandates is unconstitutional and cannot be enforced.

Gov. Ron DeSantis exceeded his authority when he prohibited local public schools from requiring students to wear masks in class, a Leon County circuit court judge ruled Friday.

"It's a sound victory for students across Florida," said Charles Gallagher, one of the lawyers representing a group of parents who sued the governor over his executive order.

The governor's July 30 order gave parents the sole right to decide if their child wears a mask at school. The parents claimed the order was unconstitutional and unenforceable.

Ten school districts, including many of the largest in the state, have approved policies this month requiring students to wear masks in their classrooms. Those districts represent more than half of the 2.8 million public school students in the state.

Many of the policies allow an exemption only with a doctor's note. The school boards OK'd the policies despite threats from Education Commissioner Richard Corcoran that they would lose funding equal to the pay of school board members and superintendents.

Judge John Cooper issued an injunction barring the Department of Education, Corcoran and the Board of Education from enforcing DeSantis’ order. The judge noted the injunction covered those defendants involved in enforcement actions, but not the governor.

Cooper said he could not strike down a Department of Health rule that was triggered by DeSantis’ order. The rule said, in part, that any local school mask mandates must allow parents to opt out. The health department was not named as a defendant in the lawsuit.

The judge ruled the state's new Parents Bill of Rights Law does not prevent school mask mandates or require parental opt-outs. He said local school boards have the power to institute rules and the state has the power to challenge those local rules, but local officials must be granted due process.

"We think it is a full victory," said Gallagher, who is based in St. Petersburg.

"This allows all school boards in the state of Florida to act in their own judgment without fear of this financial repercussions, at least these financial funds."

Cooper focused on wording in the new law, which says the government cannot infringe on the rights of parents regarding education and health care “without demonstrating that such action is reasonable and necessary to achieve a compelling state interest” and that the action is narrowly tailored and not otherwise served by less restrictive means.

“What that law says, this is how I interpret it, is normally you can’t interfere with the rights of parents to direct schooling and education, unless there is a reasonable basis to do so,” Cooper said.

DeSantis has said he believes parents should make the decision on whether children wear masks in schools.

Parents opposed to having their children be mandated to wear a face covering can apply for a state-funded school voucher program to send them to a private school. The Department of Education recently expanded eligibility for the school vouchers to include "COVID harassment." Previously, the program focused on allowing students who are victims of bullying to apply for the voucher money.

On Thursday, DeSantis said he would "obviously" appeal any ruling where the state did not win its case. That appeal may concentrate on the Parents Bill of Rights law, which states parents have the "right to make health care decisions for his or her minor child."

In his ruling, Cooper said, "The law does not require that the school board get permission for the policy in advance, it requires only that if a policy is challenged, it has a burden to prove its validity under the guidelines of the statute."

"The court took great pains to create an order that will be bulletproof to any appeal made," Gallagher said.

The governor's communications team issued a statement expressing disappointment with the ruling.

"This ruling was made with incoherent justifications, not based in science and facts – frankly not even remotely focused on the merits of the case presented."

Another Leon County circuit judge last year ruled against DeSantis and Corcoran in a lawsuit challenging a state move to require school campuses to be open during the pandemic. But the 1st District Court of Appeal ultimately reversed the circuit judge’s decision and sided with DeSantis.

Taryn Fenske, a DeSantis spokeswoman, said the administration expects a similar result in the mask case.

"We are used to the Leon County Circuit Court not following the law and getting reversed on appeal, which is exactly what happened last year in the school reopening case," Fenske said in an email to News Service or Florida. "We will continue to defend the law and parent’s rights in Florida, and will immediately appeal the ruling to the First District Court of Appeals, where we are confident we will prevail on the merits of the case."