DeSantis loses: Judge rules local school boards can implement mask mandates

FL’s Parents’ Bill of Rights allows these mandates, the judge says

By: - August 27, 2021 1:20 pm

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The DeSantis administration suffered a major legal defeat Friday when a state trial judge ruled that the governor exceeded his authority in blocking school districts from enforcing face mask mandates to inhibit COVID-19 transmission for public school students and staff.

Leon County Circuit Judge John Cooper enjoined  Education Commissioner Richard Corcoran, the state Department of Education, and Florida Board of Education from imposing a blanket ban on face mask mandates by school boards.

Already, 10 school districts had defied earlier orders, instead implementing masks mandates during the COVID-19 pandemic.

The injunction does not bind the governor; Cooper said that’s because he hasn’t been directly involved in enforcing the policy.

The order bars the state education bureaucracy from “taking any action to effect a blanket ban on face mask mandates with no parent opt out by local school boards.”

It also requires the state to allow school boards to defend the reasonableness of their mandates.

Cooper, who ruled verbally on Friday, concluded the danger from the COVID Delta variant, which is much more contagious than earlier versions, justified these mandates, as long as parents with children suffering medical problems that make mask wearing difficult can opt out with a doctor’s note.

The order won’t be final until Cooper signs a written version, probably sometime next week.

The governor’s office denounced the ruling.

“It’s not surprising that Judge Cooper would rule against parent’s rights and their ability to make the best educational and medical decisions for their family, but instead rule in favor of elected politicians,” Communications Director Taryn Fenske said in a written statement.

“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. We are used to the Leon County Circuit Court not following the law and getting reversed on appeal,” she continued.

“We will continue to defend the law and parent’s rights in Florida, and will immediately appeal the ruling to the 1st District Court of Appeals, where we are confident we will prevail on the merits of the case.”

DeSantis had insisted that parents and guardians needed the right to opt out for any reason, and his administration has threatened to financially punish local school officials who insisted otherwise. He has cited Florida’s Parents’ Bill of Rights, which gives parents the right to decide on health care measures for their children.

However, Cooper concluded that the governor himself had violated that law because it also lets government authorities impose reasonable requirements if necessary to achieve a compelling state interest as long as they are narrowly tailored and there’s no less restrictive alternative.

“The Parents’ Bill of Rights does not ban school board face mask mandates. The law expressly permits school boards to adopt policies regarding the health care of students such as a face mask mandate, even if a parent disagrees with that policy,” he said.

“An executive order and/or an agency action, or an executive action, which bans under all circumstances a face mask mandate for school children without a parental opt-out, does not meet constitutional muster because such action exceeds the authority given to defendants under the Parents’ Bill of Rights law passed by the Florida Legislature.”

‘Arbitrary and capricious’

Attempting to enforce such a policy “is by definition arbitrary and capricious because there is no reasonable or rational justification for not following all of the provisions of a duly enacted and authorized Florida law,” Cooper said.

“I am enforcing the bill passed by the Legislature and requiring that anyone who uses that bill has to follow all provisions, not part of the provisions.”

As long as they adhere to what the law says, “the doctrine of separation of powers requires that the discretionary power exercised by the school board cannot be interfered [with] by the judiciary or by the executive branch of government, and neither the judiciary nor the executive can substitute their judgment for the school board’s power.”

A group of parents who filed the lawsuit at issue argued during four-day trial that that would put their own children at risk. Other parents testified in support of the DeSantis policy, avowing that they believed wearing masks would harm their children.

Cooper cited a Florida Supreme Court ruling from 1914 regarding how to balance competing claims of rights.

“Under the American system of laws and government, everyone is required to use and enjoy his own rights as not to injure others in their rights or to violate any law in force for the preservation of the general welfare,” the justices said at that time.

Cooper compared the mask situation to drunk driving: You have the right to get drunk but not to drive that way lest you injure others.

“Our law and our history as a country going back 200-plus years if full of examples of rights that are limited by the good of others that would adversely affected by those rights. When we talk about absolute and fundamental rights, there’s always a footnote that is something like: Well, let’s see if exercising these rights harms other people. If  it does, then we have to have a discussion,” he said.

Ruling during a Zoom hearing, Cooper cited recommendations from the U.S. Centers for Disease Control and Prevention and most of the rest of the medical community.

“The evidence clearly demonstrates that the recommendation by the CDC for universal masking of students, teachers, and staff represents the overwhelming consensus of scientists, medical doctors, and medical organizations,” Cooper said.

‘Minority’ medical opinion

By contrast, the evidence the administration relied upon “reflects a minority, perhaps even a small minority, of medical and scientific opinion,” he said.

Bottom line: “Face mask policies that follow CDC guidance are at this point in time reasonable and consistent with the best scientific and medical opinion and guidance in the country.”

Cooper made it clear that individual parents who don’t want their children to wear masks can challenge local mandates in court. But he also noted that the mandates now in place allow opt outs for medical reasons and urged doctors to document such problems when they exist.

“If there’s an objection by a parent or the department to a policy — whether its face masks or not — there has to be some sort of authorized proceeding, that’s authorized by law, a due-process proceeding that allows the school board to show why it’s policy is acceptable under the Parents’ Bill of Rights,” Cooper said.

Boards must show that their policies are reasonable, he said.

Cooper rejected two of the parents’ claims: That the administration’s policy violated school boards’ home-rule rights and constitutional language requiring them to operate safe schools. He said the parents hadn’t met their burden of proof on those claims.

He cited last year’s ruling by the 1st District Court of Appeal upholding the DeSantis administration’s policy of reopening classrooms against a challenge by the Florida Education Association. The appeal court allowed the schools to open and warned judges against intruding into policy decisions by the governor.

This case is different, however, because the administration now is violating a duly enacted law, the Parents’ Bill of Rights. “There’s no authority to violate a Florida law. It doesn’t exist,” Cooper said.

He also granted a defense motion to dismiss a count referencing the Florida Department of Health, which wrote the rule against mask mandates without general opt outs, because the parent’s lawyers didn’t name that agency in their lawsuit.

The plaintiffs had wanted Cooper to invalidate that rule.

But he concluded: “I can’t do anything that affects the Department of Health because they’re not a party to this suit.”

More reaction

Nikki Fried, Florida’s Commissioner of Agriculture and Consumers Services, who’s seeking the Democratic nomination to take on DeSantis next year, called the outcome “a win for common sense.”

“Governor, it’s past time to walk away from this ridiculous, politically motivated fight and focus instead on working together to protect the people of Florida by encouraging scientifically-proven vaccines and mask guidelines. I’m proud to continue to stand with the brave local officials and families who have been fighting for what the court today affirmed is right.”

“Huge win for all of Florida — our students, teachers, families, schools, and economy. This verdict helps keep our schools and economy open, while continuing to protect lives,” U.S. Rep. Charlie Crist, another Democrat in the gubernatorial primary, said on Twitter.

“I’m sure the governor will waste no time in appealing this decision at public expense to try and tighten his grip on local government. I wish he would just go back to campaigning for president and let this decision stand,” state Rep. Fentrice Driskell said in a written statement.

“I applaud the brave parents who brought forth this legal challenge, and the courageous leaders from 10 school districts who stood up to the governor’s unlawful orders and threats of retaliation in an effort to keep children safe,” Senate Democratic leader Lauren Book said in her own written statement.

“As Judge Cooper noted, it remains under each district’s authority to provide for the health and safety of children, based on and tailored to the unique conditions they face, as the Constitution and Florida statutes clearly provide. I urge districts across the state to heed the guidance of public health experts, scientists, and the physicians on the front lines and make the right choice for Florida’s children.”

Republican Florida House Speaker Chris Sprowls issued this statement: “I stand firmly on the side of parental rights because parents, not local governments or school boards, are in the best position to make choices for their children. I expect today’s ruling to be appealed.”

Note: This story has been updated to include details of the ruling and reaction.

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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.