Lawsuit over Florida school mask mandates now before judge

Kids wear masks as they return to school in Hillsborough County in August of 2021.

The attorney for parents suing to overturn Florida Gov. Ron DeSantis’ executive order banning strong student mask mandates told a judge Thursday that it violates the authority of school districts to decide health issues on their campuses — something the governor’s lawyer strongly disputed.

Craig Whisenhunt told Circuit Judge John C. Cooper that DeSantis is endangering children by not letting districts follow guidelines issued by the federal Centers for Disease Control and Prevention, which recommends that children be masked at school.

He pointed to Florida’s skyrocketing COVID-19 cases and hospitalizations since the delta variant took hold in June, including among children. Several Florida children’s hospitals have recently reported that they have more COVID patients than any time previously.

"Despite that reality, despite all of the science, 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 told the judge. The Tallahassee hearing, concluding a four-day trial, was held online because of the pandemic.

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But Michael Abel, an attorney representing DeSantis and the state, argued there are widely divergent opinions among doctors over whether masks stop the disease’s spread, particularly at schools. Given that, the governor has the authority to side with parents who believe it is their right to decide what is best for their children and not school boards or other parents, Abel argued. 

"Parents know their own children better than their teachers know them. Better than their children’s doctors know them. Better than school administrators know them. Better than school district representatives know them," he said. "And they definitely know their children better than the other parents of the children in their class."

Cooper’s decision, which he expects to issue Friday, will, for now, decide the legality of strict mask mandates imposed in 10 of the state 67 countywide school districts, including most of the largest. Defying the governor and the state Board of Education, the districts have said students must wear masks in class unless their parents provide a note from a doctor. The districts represent about half of the state’s 2.8 million public school students.

DeSantis has said districts may only impose a mask mandate if parents can opt their child out with a note from themselves. A few districts have done that, but most districts have left it up to parents. Both sides have indicated that if they lose, they will appeal Cooper’s decision to a higher court.

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The hearing comes as DeSantis threatened two districts, Broward and Alachua, and their boards with more drastic but unspecified punishments if they don’t revoke their mandates. The districts, which cover Fort Lauderdale and Gainesville, have said they will not back down. The state has already threatened to withhold funding equal to the two district’s school board salaries, an amount that would be less than 1% of the districts’ budgets.

"That will happen very soon," DeSantis said of the increased penalties during an Orlando news conference. "And then I know there’s parents who’ve had their rights taken away who are going to pursue legal action."

DeSantis has not yet gone after the other eight districts that have imposed strong mandates, including those that cover Orlando, Tampa, Jacksonville, Tallahassee and West Palm Beach.

During Thursday’s closing arguments, Whisenhunt said the governor’s order against mask mandates is different than an earlier pandemic program through which DeSantis gave districts extra money if they went back to in-person classes. Courts upheld that program, something DeSantis’ lawyers have cited in this trial, but Whisenhunt said this is different because he is punishing districts that defy him.

"What we have now is a directive from the governor to impose a restriction on school boards’ ability to do their job under the threat of a loss of funding," Whisenhunt said. "He is no longer tempting them with a carrot; he is beating the school boards down with a stick."

He said that while DeSantis argues he is protecting the rights of parents who don’t want their children to wear masks, he is also violating the rights of those parents who believe that masks protect their children. Most doctors say masks primarily prevent the wearer from expelling the virus, giving protection to others.

"Our parents are being forced to choose between their child’s right to an education and their child’s right to be safe," Whisenhunt said.

Abel argued that Florida has an educational hierarchy in which districts do have substantial autonomy, but the governor and Legislature can impose laws and rules restricting their discretion. DeSantis and the state board have decided, he said, that parents have the ultimate authority over their child’s health care, including whether they should wear a mask.

Parents, Abel said, have "the fundamental right to direct the upbringing and the education and health care and mental health of their minor children."

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