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A judge begins weighing arguments in the mask clash between school districts and the state

student mask
A revised health department rule, issued Sept. 22, said decisions to opt out of mask requirements are at the “sole discretion” of parents or guardians.

The two-day trial kicked off in Tallahassee with the districts arguing the health department overstepped its authority and the state saying those claims are overblown.

An administrative law judge heard opening arguments and attorneys began calling witnesses Thursday in a challenge to a state Department of Health rule aimed at preventing student mask requirements during the COVID-19 pandemic.

The two-day trial kicked off Thursday in Tallahassee with the districts arguing the department overstepped its authority when it issued the rule and the state saying those claims are overblown.

The challenge was filed by school boards in Alachua, Broward, Duval, Miami-Dade, Orange, and Leon counties. They say the Department of Health’s basis for issuing a rule giving parents the right to opt out of mask mandates is wrong.

The department first issued the emergency rule in early August — and replaced it near the end of September — a time when the districts' attorney, Jaime Cole says, COVID cases were dropping.

“One of [our] positions is going to be is that COVID was not an immediate danger because there was nothing unforeseeable or urgent — nothing happened in the prior couple of weeks to necessitate an emergency procedure such as this," he told the judge during opening arguments.

Cole says by issuing an emergency order, the department dodged the public rulemaking process, which requires public notice and hearings to allow for input. Cole says the department can only address issues like controlling diseases, and its mask rule doesn't do that.

“They did the opposite," said Cole. "They said, what this rule does is prevent school districts from requiring masks without parental opt out at their sole discretion. And the question is, does that control COVID?”

The state’s attorney, Jason Gonzalez, says the health department didn’t need to be in a “state of emergency” to issue an emergency order regarding the use of masks on children in school because those powers are in state law.

“We didn’t need a state of emergency, we didn’t need to weigh the statute … so if you hear that come up again there’s no merit to that argument. I think it’s a misunderstanding of what the executive power is to declare a state of emergency.”

Gonzalez says the districts are wrong about a few things. Like the argument that the health department exceeded its authority when it crafted a rule that gives parents the sole right to opt their students out of mask-wearing at school. Gonzales also pushed back against another common claim: that the department effectively banned mask mandates.

“This rule provides the district may, at their option, adopt a masking policy. And the department chose to draw the line on what type of mask policy by saying, 'You can have a mask policy, but we’re going to place a limit on it,' " he said.

Furthermore, said Gonzalez, the claim the rule was inspired by the Parents' Bill of Rights — a new law that says parents have the ultimate say over healthcare decisions for their kids — is wrong.

That law has at the forefront of arguments over face coverings. Gov. Ron DeSantis cited it in his July 30 executive order attempting to ban mask mandates. The health department emergency rule issued Aug. 6 was designed to carry out the executive order. It also came after some districts only allowed students to be exempt from mask mandates for medical reasons.

The revised rule, issued Sept. 22, said decisions to opt out of mask requirements are at the “sole discretion” of parents or guardians. The revised rule also sought to give parents control over whether asymptomatic students go to school after being exposed to COVID-19.

The six school boards challenging the rule are among eight that face state financial penalties after enacting student mask requirements. The penalties target school board members’ salaries.

The hearing continues Friday.

Information from News Service of Florida was used in this report.

Copyright 2021 WFSU. To see more, visit WFSU.

Lynn Hatter is a Florida A&M University graduate with a bachelor’s degree in journalism. Lynn has served as reporter/producer for WFSU since 2007 with education and health care issues as her key coverage areas. She is an award-winning member of the Capital Press Corps and has participated in the NPR Kaiser Health News Reporting Partnership and NPR Education Initiative. When she’s not working, Lynn spends her time watching sci-fi and action movies, writing her own books, going on long walks through the woods, traveling and exploring antique stores. Follow Lynn Hatter on Twitter: @HatterLynn.