A Florida judge ruled on Wednesday that the state cannot enforce a ban on public schools mandating the use of masks against the coronavirus while an appeals court sorts out whether the ban is ultimately legal.
The ruling by Leon county circuit judge John C Cooper came amid a surge in cases caused by the Delta virus variant. Though statistics show that surge has begun to wane, Miami-Dade county public schools, Florida’s largest school district, said this week 13 employees had died from Covid-19 since 16 August.
Judge Cooper lifted an automatic stay of his decision last week that the Republican governor, Ron DeSantis, and education officials exceeded their authority by imposing the blanket ban through executive order and hitting pro-mask local school boards with financial penalties.
Cooper said the overwhelming evidence before him in a lawsuit by parents challenging the DeSantis ban was that wearing masks does provide some protection for children in crowded school settings, particularly those under 12 for whom no vaccine yet exists.
“We’re not in normal times,” Cooper said, in a hearing held remotely. “We are in a pandemic. We have a variant that is more infectious and dangerous to children than the one we had last year.”
Since DeSantis signed the mask ban on 30 July, 13 school boards representing more than half of Florida’s 2.8 million students have adopted mask requirements with opt-outs only for medical reasons. State officials have begun going after school board salaries as a form of punishment.
The case next goes before the first district court of appeal in Tallahassee. DeSantis said on Wednesday in Palm Harbor he was confident the state would prevail. The matter could ultimately be decided by the Florida supreme court.
The core of the governor’s argument is that a recently passed Parents Bill of Rights gives decision-making authority to parents on whether their children should wear a mask to school.
“What we’ve found is in the trial courts in Tallahassee, state and federal, we typically lose if there’s a political component to it, but then in the appeals court we almost always win,” the governor said.
Cooper pointed out that he has ruled in favor of Florida governors, including cases involving Republicans Jeb Bush and Rick Scott, since he was elected in 2002.
“If you look at my record, it’s not somebody who runs all over the place, ruling against the governor,” Cooper said. “This case has generated a lot of heat and a lot of light.”
Cooper said his previous order follows the law as passed earlier this year by the state legislature. The Parents Bill of Rights, he said, reserves health and education decisions regarding children to parents unless a government entity such as a school board can show their broader action is reasonable and tailored to the issue at hand.
The DeSantis order impermissibly enforces only the first portion of that law, Cooper said.
“You have to show you have authority to do what you’re doing,” the judge said. “You cannot enforce part of that law but not all of it.”
In a separate case, parents of special needs children have filed a federal lawsuit claiming the DeSantis mask ban violates the Americans with Disabilities Act by placing their children in jeopardy. A federal judge in Miami was set to hold a hearing later on Wednesday.
School officials in Broward, Alachua and Orange counties have filed a petition to schedule a hearing before an administrative law judge. According to the filing, the officials want the judge to invalidate a state health department emergency rule against school mask requirements based on the governor’s executive order.
In Miami-Dade, the president of United Teachers of Dade, Karla Hernandez-Mats, said that among the 13 employees to have died recently of Covid-19, four were teachers, one a security monitor, one a cafeteria worker and seven school bus drivers. All were unvaccinated.
According to official records, since 13 August, 147 students and 186 Miami-Dade employees have tested positive for Covid-19.
The school district said: “The loss of any of our employees is one that is always profoundly felt as every member of this organization is considered part of the Miami-Dade county public schools family. We extend our hearts and prayers to the loved ones of those whose lives have recently been lost.”