Lawyers For State, Parents Make Closing Arguments On School Masks

With a Leon County circuit judge expected to rule Friday, attorneys made closing arguments Thursday in a legal battle over Gov. Ron DeSantis’ executive order that sought to block school districts from requiring students to wear masks during the COVID-19 pandemic.

Circuit Judge John Cooper said he was “still wrestling” with the “sophisticated legal issues” presented in the case and promised to issue a verbal decision at 10 a.m. Friday.

DeSantis’ July 30 executive order gives parents the choice on whether their child wears masks in schools, barring districts from enacting mandates and triggering a state Department of Health rule that said any student mask requirements must allow parents to opt out.

A group of parents filed the lawsuit challenging DeSantis’ order, alleging in part that it violates a section of the state Constitution that requires providing a “uniform, efficient, safe, secure and high quality system” of public schools.

State Education Commissioner Richard Corcoran, the state Board of Education and the state Department of Education also are named as defendants in the lawsuit.

Craig Whisenhunt, an attorney representing the parents, made closing arguments Thursday and urged Cooper to rule against the state.

“The governor has sought to insert himself into matters of local health concerns and impede the ability of school boards to do what they are constitutionally mandated to do, which is to operate and control their schools,” Whisenhunt argued.

Whisenhunt also tried to attack the credibility of the state’s leading expert witness on the efficacy of masks in stopping the spread of COVID-19, calling Stanford University professor JDr. Jay Bhattacharya “an economist with a medical degree.”

Michael Abel, a lawyer representing the state, contended that protecting parents’ right to choose whether their children wear masks in school preserves “a legitimate state interest” and said the governor’s order also took into account public health interests.

“The plaintiffs contend that parent choice stops when it comes to public health. The plaintiffs (are) very clear, it’s one or the other --- public health means no parent choice,” Abel said. “Now, the defendants contend, and what the evidence has shown, it’s not one or the other. It’s both. You can protect public health and have parent choice. The governor’s executive order reflects a careful balancing of those interests.”

DeSantis on Thursday promised to appeal if Cooper does not side with the state.

“If we win in trial court, I’m sure it will be appealed on the other side, too. And so that’s good, I think we obviously need to have this stuff crystallized,” DeSantis said, adding that the case partially hinges on a new state law. “We feel that the Legislature really made a big statement with their parental bill of rights, and that’s an important piece of legislation.”

The “Parents’ Bill of Rights,” signed by DeSantis in June, deals with parents’ right to control educational and health decisions for their children.

DeSantis’ executive order cited the new law, directing the state Department of Health and state Department of Education to ensure any school mask mandates are “in accordance” with the law and “protect parents’ right to make decisions regarding masking of their children in relation to COVID-19.”

The governor also said he anticipates a separate lawsuit will be filed by parents who oppose school mask mandates.

“I know there’s parents who had their rights taken away, who are going to pursue legal action. I think you will see that in some areas,” DeSantis said.

Attorney General Ashley Moody also weighed in on the case Thursday, appearing alongside DeSantis at a press event in Orlando.

“We have to protect the parents’ ability to choose for their children, under different circumstances. Many of these children have faced different health circumstances, and parents should be able to make that choice as they are sending their child off to school,” Moody said.

As Cooper prepares to rule in the case and both parties brace for a potential appeal, at least 10 county school boards have voted to enact mask mandates that allow exceptions only for children whose parents who can produce doctors’ notes.

Counties with such mask requirements now represent about half of Florida’s 2.8 million students.

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