Trial opens in parents’ legal challenge to DeSantis ban on mask mandates in schools

Witness: Delta variant infections spreading ‘the highest I’ve ever seen’

By: - August 23, 2021 3:06 pm

Empty modern early learning classroom. Source: Getty Images

A trial judge suggested Monday that there may be limits to the state law that Gov. Ron DeSantis argues justifies his insistence that parents decide whether children inside public school buildings wear masks to prevent COVID-19 transmission.

That law is the Parental Bill of Rights, which places health care and other decisions about their children firmly in parents’ hands. It’s the basis for an executive order the governor signed that authorized the Florida Department of Health to punish local districts that impose mask mandates.

That suggestion from Leon County Circuit Judge John Cooper came as the trial opened in a lawsuit a group of parents have filed arguing the governor overstepped his authority in imposing a policy that puts their children at risk.

Daniel Bean, representing the DeSantis administration, was cross examining plaintiffs’ witness Thomas Unnasch, a professor of molecular biology at the University of South Florida who is heavily engaged in COVID-19 research. He had testified earlier that mask mandates may be the only way to protect children against the Delta coronavirus variant that’s sweeping the state.

Bean asked Unnasch whether he disagreed with language in the Parental Bill of Rights guaranteeing parents the authority “to make health care decisions for his or her minor child?”

“I guess,” Unnasch said. “With the proviso that those decisions do not have a serious impact on others.”

That’s when Cooper pointed out: ‘Mr. Bean, you didn’t read the entire sentence. … It says the right to make health care decisions for his or her minor child unless otherwise prohibited by law” — suggesting limits to that parental right.

“Thanks, your honor. I appreciate that,” Bean said.

The moment was a highlight of the first day of a projected three-day trial. Additionally, Cooper rejected a request to consolidate the case with another, transferred to Leon from Broward County, raising many of the same arguments. A Broward judge had ruled the matter belonged in Leon County, the seat of state government.

With the trial opening, “I think it’s just too late,” Cooper said, adding that the cases present slightly different issues and target different parties, and that the attorneys in the case already before him opposed consolidation.

“It creates much more problems than it solves,” the judge says.

A growing number of school districts are flouting the DeSantis policy; the Leon County district became the seventh to do so on Sunday, with Superintendent Rocky Hanna imposing a temporary mandate for kids in pre-K through 8th grade, who aren’t eligible for COVID vaccines yet.

During opening arguments, former Judge Charles Dodson, now in private practice and working with the parents, noted that the Delta variant is significantly more infectious than previous variants and is overrunning hospitals.

Given that, the U.S. Centers for Disease Control and Prevention, American Academy of Pediatrics and other medical groups have recommended mandatory masking in schools, especially since the vaccines haven’t been approved yet for kids under 12.

“We are not asking the governor to mandate masks but only that he allow local school boards to do so without punishment should they so choose,” Dodson said.

The Florida Constitution gives school districts that authority, he continued.

He said some of the parents his team represents will testify that they fear for their children attending schools with unmasked classmates, and doctors will explain why “masks for everyone in the school is an essential factor in making our schools safe for our children.”

Dodson also cited constitutional language establishing a “paramount duty” to provide “a safe and secure” school system.

“Because of the Delta variant, our public schools are not safe and secure at this time unless everyone wears a mask,” Dodson said.

Michael Abel, another attorney representing the administration, sympathized with the parents bringing the lawsuit but insisted that the rights of parents who don’t want their kids forced to wear masks deserve protection, too.

“At its heart, this case involves a parent purporting to decide what covers the face of someone else’s child,” Abel said.

Judge Cooper interjected: “Doesn’t it really determine the safety of school children first?”

Abel insisted: “The Florida Legislature and the governor believe that there should be a very strong justification for covering the faces of school children over the objections of their parents. They concluded, on due consideration of the science, the health, and the state’s educational mission, that mandating the covering of children’s faces was not justified here.”

Among the administration’s witnesses, Abel said, would be Jay Bhattacharya of Stanford University, one of three doctors with unconventional views on COVID upon whom DeSantis has called for advice that backs his policies. Bhattacharya’s specialty is in the economics of health policy. He will testify, Abel said, about the purported harm face masks can cause for children.

DeSantis has cited a Brown University study that ostensibly found no scientific basis that masks make much difference in the school context.

But USF professor Unnasch said that even its authors concede that study hasn’t been peer reviewed; involved a sampling too small to draw solid conclusions from; and was conducted before Delta arrived.

Researchers have identified viral loads in people for the Delta variant 1,000 times larger than levels for the original COVID virus, he said. As a result, infections have seen an “almost exponential” rise. Just before DeSantis signed his executive order in July, Delta infections were doubling every eight days — “the highest I’ve ever seen since I began doing the calculations here.”

The mortality rate runs about twice that for seasonal influenza and earlier COVID strains for children under 16, Unnasch said. Cloth face masks have demonstrated 80 percent efficacy in reducing coronavirus spread, he noted.

Plaintiffs’ lawyer Erin Burnett asked Unnasch: “Can you say with a reasonable degree of scientific certainty that the absence of mandatory masks is likely to result in illness or death of children or others?”

He replied: “Unfortunately, yes. I believe that’s likely to occur if we don’t maintain masking.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.