Florida school districts can legally require their students to wear masks to prevent the spread of COVID-19, a judge ruled Friday, saying Gov. Ron DeSantis overstepped his authority when he issued an executive order banning such mandates.
Leon County Circuit Judge John C. Cooper agreed with a group of parents who claimed in a lawsuit that DeSantis’ order is unconstitutional and cannot be enforced. The governor’s order gave parents the sole right to decide if their child wears a mask at school.
Cooper said DeSantis’ order “is without legal authority.”
His decision came after a three-day virtual hearing, and after 10 Florida school boards voted to defy DeSantis and impose mask requirements with no parental opt-out. Cooper’s ruling will not go into effect until it is put into writing, which the judge asked the parents’ lawyers to complete by Monday.
Cooper said that while the governor and others have argued that a new Florida law gives parents the ultimate authority to oversee health issues for their children, it also exempts government actions that are needed to protect public health and are reasonable and limited in scope. He said a school district’s decision to require student masking to prevent the spread of the virus falls within that exemption.
The law “doesn’t ban mask mandates at all,” Cooper said during a two-hour hearing that was conducted online because of the resurgent pandemic. “It doesn’t require that a mask mandate must include a parental opt-out at all.”
The judge also noted that two Florida Supreme Court decisions from 1914 and 1939 found that individual rights are limited by their impact on the rights of others. For example, he said, adults have the right to drink alcohol but not to drive drunk, because that endangers others. There is a right to free speech, but not to harass or threaten others or yell “fire” in a crowded theater, he said.
“We don’t have that right because exercising the right in that way is harmful or potentially harmful to other people,” Cooper said. He added that the law “is full of examples of rights that are limited (when) the good of others ... would be adversely affected by those rights.”
DeSantis has dismissed the recommendation from the Centers for Disease Control and Prevention that people wear masks, saying it is not applicable to Florida. But Cooper cited numerous Florida laws and statutes — such as those covering health care in nursing homes, prisons and elsewhere — that direct decision-makers to give great weight to CDC guidelines.
Nine states have banned school districts from setting universal mask mandates. Those bans are in effect in six states. In the remaining three states, mask mandate bans have been blocked, suspended, or are not being enforced. Sixteen states and the District of Columbia require masks be worn in schools.
MASK MANDATE BAN IN EFFECT
- South Carolina
MASK MANDATE BAN BLOCKED, SUSPENDED, OR NOT BEING ENFORCED
- District of Columbia
- New Jersey
- New Mexico
- Rhode Island
*On Sept. 22, Florida‘s newly-appointed surgeon general instituted a rule that gives parents and legal guardians “sole discretion” over masking in schools.
On Sept. 1, an Oklahoma judge temporarily blocked the state law banning school mask mandates, but students or their parents can still opt out of the requirement if they choose.
Tennessee‘s governor has signed an executive order requiring schools to allow families to opt out of mask mandates.
In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government, according to the state’s top education official.
An Arizona judge ruled the state law banning mask mandates will not go into effect until Sept. 29.
In Arkansas, a judge paused the state law that prohibits local officials from setting mask mandates, meaning school districts can—at least for now—set their own local mask requirements.
On Sept. 13, a federal district court ordered Iowa to immediately halt enforcement of its law banning mask mandates in schools.
Updated guidance released by the Texas Education Agency on Sept. 17 states that per the governor’s executive order, school systems “cannot require students or staff to wear a mask.”
Updated 9/22/2021 | Sources: Local media reports | Learn more here
On Thursday, the governor said that if the judge ruled against him, the state would appeal. His office did not immediately respond Friday to an email seeking comment.
The highly contagious delta 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. Over the past week, new cases and hospitalizations have leveled off. There were 16,550 people hospitalized on Thursday, down from a record of above 17,000 last week — but still almost nine times the 1,800 who were hospitalized in June.
The 10 districts that have defied DeSantis’ order represent slightly more than half of the 2.8 million Florida public school students enrolled this year. The governor, a Republican who is eyeing a possible presidential run in 2024, had threatened to impose financial penalties on school boards that voted for strict mask mandates. Democratic President Joe Biden said if that happened, federal money would be used to cover any costs.
Orange County, home to the city of Orlando and Disney World, on Tuesday became the latest large district to impose a mask mandate after positive tests for COVID-19 disrupted classes. From Aug. 7 through Friday, the district reported 2,375 positive cases among students since school began, with more than 1,800 people under active quarantine, according to the district’s dashboard.
In Fort Lauderdale on Tuesday, the Broward County School Board told the Department of Education that it won’t back down on its requirement that students wear masks. Its policy, like that of most other districts, gives parents a medical opt-out for students. The board said giving parents the unlimited right to send their kids to school without a mask would infringe on the rights of other parents who want their children to be safe.
The state had given Broward and Alachua counties until Tuesday to end their mask mandates. Broward’s students began school last week with a mask policy in place.
“We don’t believe that we have done anything inappropriate as it relates to the executive order and the rule of the Department of Education,” Rosalind Osgood, chairwoman of the Broward School Board, said Tuesday.
About 6 in 10 Americans say students and teachers should be required to wear face masks while in school, according to a poll conducted this month by The Associated Press-NORC Center for Public Affairs Research.
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