Judge: Lawsuit over DeSantis schools mask-policy tests uncharted legal waters

Final arguments set for Thursday; decision promised on Friday

By: - August 25, 2021 6:44 pm

School districts, including Clay County in North Florida, worked on plans this summer for the new academic year, experimenting with a social-distancing school day. Source: Clay County District Schools Twitter

The trial pitting parents critical of Gov. Ron DeSantis’ school masking policies against the administration will extend into Friday.

The attorneys presented their last witness on Wednesday, but the judge said he needs to review the evidence before hearing closing arguments.

The reason, Leon County Circuit Judge John Cooper said during a Zoom hearing, is that some aspects of the dispute have never been decided by appellate courts before and will require careful deliberation.

“That’s what our profession requires us to do, is look to authority and follow that authority if we can, if it’s relevant. If not, we try to do our best to understand what the appellate courts and the Legislature require us to do. And then we proceed on,” Cooper said.

He said would hear closing arguments Thursday morning and plans to rule from the bench on Friday morning.

The parents’ case is that DeSantis exceeded his authority in signing an executive order in late July forbidding local school districts from requiring students to wear masks in classrooms unless they allow parents to opt out for any reason.

A growing number of districts have rebelled, issuing mandates that allow opt outs only with documented medical excuses. They cite the surge in COVID Delta variant infections, which have not left public school teachers, staff, and students unscathed.

DeSantis — and the lawyers representing him and other named defendants Education Commissioner Richard Corcoran, the Department of Education, and the Florida Board of Education — insist a state law passed last spring, the Parents’ Bill of Rights, compels the governor’s policy. It gives parents the right to make medical decisions (among others) for their children.

Judge Cooper on Wednesday entered into evidence an Aug. 20 DOE press release announcing  Corcoran’s order that Alachua and Broward, the first districts to buck the policy, come into compliance or face punishment.

The third day of testimony saw Jay Bhattacharya, one of DeSantis’ go-to experts when devising his policy, back on the stand. The Stanford University researcher is a co-author of the Great Barrington Declaration, which recommends shielding people most vulnerable to the virus, including older people and those already with serious illnesses, while leaving younger and less susceptible people free to develop “herd immunity.”

Plaintiffs’ attorney Charles Gallagher led Bhattacharya through statistics documenting the recent caseload upsurge and the deaths of 11 children younger than 16.

A third-grader in Leon County died of COVID over the weekend, Gallagher said. Bhattacharya, testifying from California, said he was unaware of it.

‘Acceptable death rate’

“What would be an acceptable death rate for children?” Gallagher asked.

“I reject the premise of the question. The question is not what’s an acceptable death rate. The question is: What are the trade-offs?” Bhattacharya replied.

Gallagher complained that the researcher was not answering the question put to him. But Judge Cooper allowed Bhattacharya to answer in his own way. Cooper had noted earlier in the trial that there isn’t a jury in the case and that he would give witnesses latitude under cross examination.

“The right way to think about policy is by comparing the benefits and harms of the policy,” not setting “some lexicographical cutoff and saying, if it’s above this then you don’t do anything or do something,” Bhattacharya said.

“Policy like masking 5-year-olds will have harms to children. You compare that against the benefits, such as they are, and then make decisions on that basis. I don’t think it’s right to say, ‘What’s the right, acceptable number of deaths?’ I mean, compared to what?”

Bhattacharya repeated what he’d testified to the day before: That research shows long-term masking can cause “considerable harm” to children that can “last a lifetime.” He added: “Your question makes no sense in the context of how policy should be done.”

Eventually Cooper interceded. “I think he’s saying that, ‘I don’t accept the premise that there is any death that is either not enough or too much.’ It’s not answerable. Whether I agree with it or not, that’s his answer,” Cooper said.

Beside arguing that face masks are ineffective against coronavirus transmission, Bhattacharya insisted that even the more easily transmitted Delta variant threatens mostly elderly people, not schoolchildren.

Gallagher appeared to attempt to establish during his questioning that Bhattacharya based his conclusions on data gathered earlier in the pandemic, before the more easily transmissible Delta arrived this year and drove large caseloads that threaten to overrun Florida’s hospitals.

He led the researcher through a long list of COVID studies, asking about each one: When were the data collected? Most of the information, Bhattacharya said, dates from 2020.

At another point in his questioning, Gallagher pointed to Florida Department of Health data documenting the caseload increase.

Bhattacharya said he draws this conclusion: “You had a massive wave of cases and it’s peaked and it’s on its way down.”

Other medical witnesses have testified that the Delta variant poses enough of a threat to justify mask mandates in public schools. Some of the parents bringing the case have testified that they need the mandates to protect their own kids against infection from unmasked classmates.

On Wednesday morning, three mothers who support the governor’s policy testified that their children, some with serious illnesses, have had difficulty wearing masks. One of them, Ashley Benton of Leon County, said her daughter’s pediatrician refused to sign a medical opt out, which is allowed under her school district’s mask mandate.

“At this point, if I can’t get medical opt out, I think I’m going to have to pull her out of school,” Benton said. That could mean everything from homeschooling to transferring her child to another school.

Bhattacharya had complained that no stringent, randomized study has confirmed that masks work in school-aged children. The defense called St. Petersburg pediatric pulmonologist Anthony Kriseman, who testified it “would be ethically” difficult to conduct such a study.

“You’d have to somehow not let the children know who was wearing masks and who weren’t. And you’d also have to potentially put children without masks into infectious situations,” Kriseman said.

As for evidence Bhattacharya cited that masks decrease blood hemoglobin levels, suggesting difficulty breathing, an Italian study refuted that finding, Kriseman said. Their widespread use has also been proven effective in containing viral transmission among large populations, he added.

“I don’t know that anybody’s going to put down a black and white statement” concerning masks usefulness, “but this one comes pretty close,” Kriseman said.

‘Compassion and grace’

Jacob Oliva, chancellor of Florida’s public schools, testified that officials detected no real difference between infection rates last year at schools that required face masks and those that did not, but that masks can interfere with learning, especially for students with special needs or in English as a second language course.

The department has long believed in extending education options to parents, Oliva said.

“Who know a child better than their parents?” he said.

Oliva testified that his department attempts to use “compassion and grace” in dealing with student health. Officials have made billions in federal COVID relief money available to pay for mitigation efforts in the classroom, and some districts have offered parents the option of placing their children in all-masked classrooms, he said.

However, the Phoenix has reported that the state Department of Education has still not used several billion dollars in federal funding that could go to schools.

The state no longer pays for distance learning, with kids at home following teachers’ lessons via video feeds, because they didn’t work well, Oliva said. Some virtual education remains possible via the Florida Virtual School and similar programs offered in some districts, he added.

He was asked what he would tell parents worried about the risk to their children from unmasked classmates.

“Those concerns are real,” Oliva said.

“The thing I would always encourage those parents to do is meet with their principal, meet with their teacher, and find out what strategies they have in place to mitigate risk,” he said.

His own son suffers asthma and severe allergies, Oliva added.

He tells the boy: “It’s hard to control the behavior of others, but you know how to wash your hands; you know how to wear a mask; you know how to social distance. Worry about the actions that are within your purview. Because, ultimately, I want you to be a kid,” he said.

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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. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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