Governor’s school mask-mandate ban illegal and unsupported, judge rules

A Florida judge ruled Governor Ron DeSantis's executive order banning mask mandates in schools was unconstitutional, while also rejecting many of the anti-mask claims DeSantis made when issuing the ban back in July. The judge said the ban actually violated a new law that the governor had used as justification for the order.

In addition, the judge is granting an injunction against the state Board of Education, one of the defendants in the case, because of their enforcement of the executive order. He declined to grant an injunction directly against DeSantis, citing the governor's limited role in enforcing the ban.

One of the central arguing points in the state's side of the case was the "Parents' Bill of Rights" that became law this year. Judge John Cooper said the new law does "not ban mask mandates at all." The governor had previously said the new law gave him the authority to issue his executive order.

"Parents' rights are very important but they’re not without some reasonable limitations," usually in regard to health care or safety, the judge noted.

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Cooper also added that the law doesn't mean the state can penalize school boards. Instead, those schools boards should have the due process to indicate their policy is reasonable, however, the state has not done so with Alachua and Broward school districts.

"They have to follow all the provisions, not just part of it," he state. "An executive setting in motion an order violating the parent bill of rights is without legal authority."

The case for and against masks

During his ruling, Judge Cooper systematically debunked evidentiary reports and studies used by the governor to prove masks are ineffective or are not recommended by experts, pointing out that several of them actually said the opposite. He also said that some of the studies took place before the delta variant became the dominant strain in Florida.

"We had a different, less infectious virus than we had last year," Cooper said during Friday's virtual hearing. He later said, "What is appropriate for one county, may not be appropriate for another county." 

RELATED: Child hospitalizations hit pandemic record

The highly contagious variant led to an acceleration in cases around Florida and record high hospitalizations just as schools prepared to reopen classrooms this month. By mid-August, more than 21,000 new cases were being added per day, compared with about 8,500 a month earlier. The state said 16,820 people were hospitalized on Tuesday, down from a record of more than 17,000 last week.

DeSantis has dismissed the masking recommendation of the Centers for Disease Control and Prevention as not applicable to Florida, but Cooper cited numerous Florida laws and statutes covering health care in nursing homes, prisons and elsewhere that say state decision-makers should give great weight to CDC guidelines.

The judge pointed out that most experts agree masks protect other children, not just those wearing them, and he rejected the claim made by a psychologist at a closed-door DeSantis-led roundtable that "masking is child abuse."

"I’ve seen no scientific evidence of that," Cooper said.

MORE: Students directly impacted by mask mandates speak on both sides of the issue at school board meetings

Individual rights vs. others' rights

For two hours Friday, Judge Cooper broke down the governor's executive order, detail by detail, before delivering his ruling. He said he was awake until 2 a.m. Friday making notes and reviewing the week of testimony. 

He started the hearing citing Dutton Phosphate Company v. Lawton Priest, a 1914 Florida Supreme Court case that limited individual rights so as not to injure others. That idea was affirmed in a 1939 Florida Supreme Court case, he noted. 

Cooper also compared the mask mandate debate to drunk driving.

"We all zealously protect our personal rights," he said. "We can drink until we're intoxicated...but we cannot get in our car and start driving around while we've had alcoholic beverages that impair our ability to drive. We all have the right to drink alcohol, but the driver’s right to drive intoxicated is limited by the government."

"When we talk about absolute and fundamental rights, there’s always a footnote," Cooper added. "Well let's see if exercising this right harms other people."

Four days of testimony

Attorneys on both sides gave testimony all week. On Thursday, they gave their closing arguments as to whether the governor’s ban on mask mandates without parental opt-outs are unconstitutional.

When Governor DeSantis handed down his executive order stating that Florida school districts could not implement mask mandates for students, some Florida parents fought back by responding with a lawsuit that claimed his order was unconstitutional due to the section of the state constitution that calls for "uniform, efficient, safe, secure and high-quality system" of public schools.

RELATED: Majority of Americans support school mask, vaccine mandates, poll finds

During the trial, attorneys representing the state maintained that there are many different opinions when it comes to whether masks actually help to stop the spread of COVID-19, arguing that it should be left up to the parents to decide if their student should have to be masked.

However, the judge heard from some Florida parents throughout the week who said that this decision is putting their students’ lives in jeopardy, pointing out that most medical experts agree that wearing a mask protects not only the child wearing the mask but also other children they are near.

Attorneys representing the parents also said that the governor waited until the end of July to push through his executive order, speaking to how disingenuous it was.

"He waited until he could insert a rule and restrict the authority of school boards on the eve of their opening, said Craig Whiswenhunt, the plaintiff attorney. "When they wouldn’t have time to redress their concerns or bring their issues to the court. And as efficient and expedited as this case has been, it has taken us into the school year already. And it could have been litigated and resolved months ago -- without the risk and detriment to students."

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The defense maintained that the governor had every constitutional authority to put his executive order in place, while stating that the parents suing DeSantis should agree with the order because it protects both public health and parents’ choice.


Gov. DeSantis previously said the state would appeal if the judge did not rule in his favor and a spokesperson reiterated that plan after the ruling.

"It’s not surprising that Judge Cooper would rule against parent’s [sic] rights and their ability to make the best educational and medical decisions for their family, but instead rule in favor of elected politicians. 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," Taryn Fenske wrote. "We will continue to defend the law and parent’s rights in Florida, and will immediately appeal the ruling to the First District Court of Appeals, where we are confident we will prevail on the merits of the case."

Agriculture Commissioner Nikki Fried, who is running for governor against DeSantis, called the executive order "indefensible and illegal."

"This is a win for students, parents, teachers, and democracy," she wrote.

Information from the Associated Press was used in this report.