Law & Courts

Florida Attorney General Joins Mask Mandate Legal Fight as State Defies Court Ruling

By Ana Ceballos, Miami Herald — September 02, 2021 4 min read
Florida Attorney General Ashley Moody speaks alongside Gov. Ron DeSantis during a news conference, Thursday, April 8, 2021, at PortMiami in Miami.
  • Save to favorites
  • Print

Attorney General Ashley Moody on Wednesday injected her legal opinion into Florida’s ongoing court battle over school mask mandates, adding noise to an increasingly political fight.

Moody, a Republican ally of Gov. Ron DeSantis, said school districts must comply with a state rule that says parents must have the ability to opt their kids out of mask requirements “unless and until the judiciary declares them invalid.”

Her legal opinion comes days after a Leon County judge ruled that DeSantis and his administration “acted without legal authority” when issuing and enforcing a blanket ban on mask mandates. The ruling was delivered orally and is not effective until written and filed. As of Wednesday evening, no ruling has been filed, which has given an opening to DeSantis and his administration to act.

Minutes after Moody published her legal opinion, the Florida Department of Education issued a statement that said her legal opinion proves districts have broken the law and need to follow state orders because “the judiciary has not declared the rule to be invalid.”

“Today, the department is urging every school district that has mandated masks without an opt out to promptly change its policies and comply with Florida’s rules and laws,” said Department of Education spokesman Jared Ochs, who did not immediately respond when asked if the state agency coordinated with Moody’s office.

11 districts defying the state’s order

Eleven of Florida’s 67 school districts have imposed temporary strict mask mandates to prevent the spread of COVID-19. Two districts — Broward and Alachua — have been sanctioned as a result of requiring parents to provide a doctor’s note before they can opt out of masking requirements. Eight other districts, including Miami-Dade and Hillsborough, have been told by the state they are in non-compliance and could face sanctions.

Charles Gallagher, the lead attorney for the plaintiffs in the mask mandate case, said he believes the state is acting inappropriately. He said there is legal precedent that “holds an oral ruling valid and enforceable” until the time it is memorialized in writing.

Gallagher said both parties have the transcript of Circuit Court Judge John Cooper’s ruling, therefore, he argued, the state “cannot claim confusion” and defy the court order.

“I don’t believe it’s appropriate to defy the court’s oral ruling,” Gallagher said in an email to the Herald/ Times on Wednesday.

School Mask Mandates at a Glance

  • As of Dec. 10, four states have bans in effect that prevent school districts from setting universal mask mandates, according to an Education Week analysis. Five additional states have such bans, but they have been blocked, suspended, or are not being enforced. Sixteen states and the District of Columbia require masks be worn in schools.


    1. Florida

    On Sept. 22, Florida's surgeon general instituted a rule that gives parents and legal guardians "sole discretion" over masking in schools. On Nov. 5, a judge sided with the state health department in a legal challenge to rule. On Nov. 18 Gov. DeSantis signed a bill that allows parents to sue school districts that require masks.

    2. Oklahoma

    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 school mask mandates if they choose.

    3. Texas

    On Dec. 1, an appeals court halted a federal judge’s order that had stopped Texas from enforcing its ban on mask mandates in schools, allowing the prohibition to remain in effect.

    4. Utah

    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.


    1. Arizona

    On Sept. 27, a judge in Arizona blocked the state laws banning mask mandates that were set to take effect on Sept. 29. On Nov. 2, the Arizona Supreme Court upheld that ruling.

    2. Arkansas

    An Arkansas judge ruled on Dec. 29, that a law signed by the governor in April that prohibited local officials, including school boards, from setting mask mandates was unconstitutional. School districts have been able to set their own mask requirements since August when the judge put the law on hold.

    3. Iowa

    On Sept. 13, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. The order was later extended. The case is now awaiting a ruling from a federal appeals court.

    4. South Carolina

    On Sept. 28, a federal judge suspended South Carolina from enforcing the rule that banned school districts from requiring masks for students.

    5. Tennessee


    1. California
    2. Connecticut
    3. Delaware
    4. District of Columbia
    5. Hawaii
    6. Illinois
    7. Louisiana

    According to a State of Emergency proclamation issued Nov. 23, and most recently extended on Jan. 19, students are required to wear masks in schools, but districts can opt out of the mandate if they adopt an isolation and quarantine policy consistent with the state's department of health protocols.

    8. Maryland

    On Jan. 5, the mask mandate was extended for 180 days, but newly allowed school districts to opt out if at least 80% of the county or 80% of their students and staff have been fully vaccinated.

    9. Massachusetts

    On Jan. 10, Massachusetts extended the state's mask requirement through Feb. 28. On Sept. 27, Massachusetts said schools can apply for a waiver from the face covering rules if 80% of their students and staff have been vaccinated. If a school reaches the 80% threshold, unvaccinated students and employees are still required to wear masks.

    10. Nevada
    11. New Jersey

    On Dec. 7, a judge ruled New Jersey's school mask mandate is "rational" and does not violate the U.S. Constitution.

    12. New Mexico
    13. New York
    14. Oregon
    15. Rhode Island
    16. Virginia

    An executive order from Virginia's new governor that is set to take effect on Jan. 24 rescinds the state's current school mask mandate and instead allows parents to opt their child out of any mask mandate at their school.

    17. Washington
  • Note: In Missouri, the state attorney general has threatened to sue school districts that require masks, citing a November ruling by a county judge that said local health orders tied to COVID-19 are illegal. (The ruling is being interpreted differently by different districts.) The state’s treasurer announced he was also cracking down on schools with mask mandates.
    Updated 01/20/2022| Sources: Local media reports | Learn more here

Cooper ruled Friday that DeSantis exceeded his authority in barring universal mask mandates when he issued an executive order that drew its authority from portions of the Parents’ Bill of Rights. The law was approved by the Republican-dominated state Legislature and signed by the governor on June 29.

DeSantis was unable to wield his emergency power under state law to issue the executive order, Cooper added, because he had already allowed the COVID-19 state of emergency to lapse a month before he issued it. So, Cooper said, the governor has to rely on the written language of the new law.

The law says the state is not allowed to “infringe on the fundamental rights of a parent” to direct the upbringing, education, health care, and mental health of a child “without demonstrating that such action is reasonable and necessary to achieve a compelling state interest.”

Legal limbo until order is written, final

Cooper argued the governor and his administration used the first half of the statute, but not the second part, when issuing an executive order and subsequent rules that barred districts from imposing strict mask mandates. Therefore, he said, the state’s mask orders were unlawful and districts could continue enforcing their mask mandates if they proved they were reasonable as the full law intends.

“My ruling in this case, if you want to put it in one sentence, is, I am enforcing the bill passed by the Legislature and requiring that anyone who uses that bill to follow all provisions and not part of the provisions,” Cooper said.

The problem is the ruling is in somewhat of a legal limbo. Cooper said his ruling would not be effective until it is written and filed. The attorneys representing the state made a point of asking Cooper to clarify that was the case.

Additionally, DeSantis and the Department of Education have said they intend to appeal immediately.

In her legal opinion, Moody noted an appeal would grant an automatic stay on the ruling unless a court vacates the stay. In other words, once the state appeals, and it intends to do so, Cooper’s ruling will be paused and the governor’s executive order will go back into effect and the state will enforce it, unless a court says otherwise.

That means the status quo could remain in place as 11 Florida school districts defy the governor’s mask orders by requiring a doctor’s note before kids can opt out of a mandate.

See Also

Students sit in an Algebra class at Barbara Coleman Senior High School on the first day of school, in Miami Lakes, Fla., on Aug. 23, 2021. Florida school districts can legally require their students to wear masks to prevent the spread of COVID-19, a judge ruled Friday, Aug, 27, saying Gov. Ron DeSantis overstepped his authority when he issued an executive order banning such mandates.
Students sit in an Algebra class at Barbara Coleman Senior High School on the first day of school, in Miami Lakes, Fla., on Aug. 23, 2021. Florida school districts can legally require their students to wear masks to prevent the spread of COVID-19, a judge ruled Friday, Aug, 27, saying Gov. Ron DeSantis overstepped his authority when he issued an executive order banning such mandates.
Marta Lavandier/AP
School & District Management Florida Withholds School Board Salaries Over Mask Mandates
Scott Travis, South Florida Sun-Sentinel, August 31, 2021
5 min read

Education Commissioner Richard Corcoran on Monday announced that he has begun withholding money from the Broward and Alachua school districts, which imposed stricter mask mandates than the governor wanted.

Broward and Alachua were the first to go through the state’s inquiry process over the issue. But eight other districts, including the largest ones in the state — Miami-Dade, Hillsborough, Palm Beach, Duval and Orange counties — have been asked by the state to respond this week on whether they intend to reverse course or not.

Their deadline to reply was 5 p.m. Wednesday.

Tampa Bay Times reporter Jeffrey S. Solochek contributed to this report.

Copyright (c) 2021, Miami Herald. Distributed by Tribune Content Agency.


This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Student Well-Being Webinar
A Whole Child Approach to Supporting Positive Student Behavior 
To improve student behavior, it’s important to look at the root causes. Social-emotional learning may play a preventative role.

A whole child approach can proactively support positive student behaviors.

Join this webinar to learn how.
Content provided by Panorama
Recruitment & Retention Live Online Discussion A Seat at the Table: Why Retaining Education Leaders of Color Is Key for Student Success
Today, in the United States roughly 53 percent of our public school students are young people of color, while approximately 80 percent of the educators who lead their classrooms, schools, and districts are white. Racial
Jobs January 2022 Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Supreme Court Blocks Biden Vaccine Mandate Applying to Schools in Much of the Country
The justices ruled 6-3 to stay an Occupational Health and Safety Administration rule that covered schools in 26 states and two territories.
4 min read
Members of the Supreme Court pose for a group photo last April.
The U.S. Supreme Court blocked a federal vaccine mandate for large employers, including school districts in about half the states.
Erin Schaff/The New York Times via AP
Law & Courts Students Lose Appeal on Right to Civics Education, But Win Praise From Judges Anyway
A federal appellate court panel commended Rhode Island students for the novel effort, but said Supreme Court precedent stood in the way.
3 min read
Scales of justice and Gavel on wooden table and Lawyer or Judge working with agreement in Courtroom, Justice and Law concept.
Pattanaphong Khuankaew/iStock
Law & Courts High Court Appears Skeptical of Vaccine Mandate Covering Schools in Over Half the States
The Biden administration's OSHA rule applies to private employers with 100 or more workers, as well as school districts in 26 states.
4 min read
The Supreme Court shown Friday, Jan. 7, 2022, in Washington. The Supreme Court is taking up two major Biden administration efforts to bump up the nation's vaccination rate against COVID-19 at a time of spiking coronavirus cases because of the omicron variant.
The U.S. Supreme Court is weighing two Biden administration efforts to bump up the nation's vaccination rate against COVID-19.
Evan Vucci/AP
Law & Courts Federal Judge Blocks Biden's COVID Vaccine Mandate for Head Start Teachers
In a challenge by 24 states, the judge's preliminary injunction also blocks a mask mandate for Head Start students age 2 or older.
4 min read
COVID face masks and gavel
iStock/Getty Images Plus