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Can courts resolve Florida’s great school mask debate? A trial begins.

A lawsuit pits pro-mask parents against Gov. Ron DeSantis and his order aimed at preventing school mask mandates.
Lawyers and witnesses showed up for the start of a virtual trial on Monday in a parent-led lawsuit challenging Gov. Ron DeSantis' executive order to prevent mask requirements in schools. Leon County Judge John Cooper is in the panel at bottom right.
Lawyers and witnesses showed up for the start of a virtual trial on Monday in a parent-led lawsuit challenging Gov. Ron DeSantis' executive order to prevent mask requirements in schools. Leon County Judge John Cooper is in the panel at bottom right. [ 2nd Judicial Circuit of Florida ]
Published Aug. 23, 2021|Updated Aug. 23, 2021

A nationally watched court battle over masks began in Florida on Monday with parents from across the state arguing that Gov. Ron DeSantis’ administration should not have prevented schools from implementing universal mask mandates.

The trial in Leon County court has the attention of the White House, other states, and local school district officials, many of whom are still wrangling with the question of mandatory masks as coronavirus cases and quarantines rise in schools.

At its core, the case pits personal liberty versus collective responsibility. It also could address some major questions: How much power do the governor and Legislature have over local schools? Did DeSantis’ emergency order address a real emergency? And how useful are masks?

Michael Abel, representing the governor and the education department, opened by acknowledging that everyone involved wants the best for children. “We don’t fault or criticize the plaintiffs’ families for the action they are taking,” Abel said.

But masking children, Abel said, is far from a settled issue. He said the governor made a policy decision to protect the freedom of parents to make health choices for their children.

The plaintiffs, including parents from Hillsborough, Pinellas, Alachua and Palm Beach, argued mask mandates are “vitally important” to keep their children safe. Kristen Thompson, a Gainesville parent of three, said her first-grade daughter, 7, has medical “complexities” that do not allow her to wear masks.

“We need other people wearing masks so she doesn’t get the germs coming to her,” said Thompson, who also testified she has heard other parents say they will send their kids to school sick.

“That makes me scared,” she said. “If people are wearing masks it protects from everyone else who is not being responsible.”

The court dispute is underway as a growing number of Florida school districts impose mask mandates, and as the Biden administration threatens possible legal action against governors who block local school officials from requiring masks to protect against the coronavirus.

The districts of Miami-Dade, Broward, Hillsborough, Palm Beach, Alachua, Leon and Sarasota have said they will require students and staff to wear masks, defying the state’s “parents’ bill of rights” law and orders from the DeSantis’ administration.

The state’s remaining districts have made masks voluntary or allow parents to override any mask requirements, though the Orange and Duval county school boards are considering a mask mandate this week.

Orange County Mayor Jerry Demings on Monday said he supports a mask mandate in the district. Most of the school board’s members support a mask mandate and could take up the issue at its Tuesday meeting.

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Some Pinellas County parents also have pressed their board to get tougher on masks.

In Palm Beach and Sarasota counties, some parents are protesting their districts’ mask mandates.

Education commissioner Richard Corcoran on Friday said the state will dock the salaries of Alachua and Broward school board members for what he said was a “blatant” violation of law. But it is not clear when the Miami-Dade, Hillsborough, Palm Beach, Sarasota and Leon county school boards will begin the same process of inquiry as Alachua and Broward did.

Alachua superintendent Carlee Simon told state education officials on Sunday that her district has no plans to change its universal masking policy because it will help “keep our students in the classroom and out of the hospital.” As a result, the state could soon start withholding $13,429 a month from the district.

The Broward County School Board will tell the state what members intend to do with the district’s mask policy by 10 a.m. Tuesday. If the board does not reverse course on its policy, the state could withhold about $31,000 a month from that district.

Laying out the case

Witnesses for the plaintiffs dominated the first day of the trial. They included parents speaking about their personal experiences, and medical experts discussing the virus and masks.

Thomas Unnasch, an infectious disease expert at the University of South Florida, was the first witness for the plaintiffs. During an hour-long testimony, Unnasch explained that the delta variant of COVID-19 had a mortality rate about twice that of the seasonal flu, and it was much more contagious than previous versions of the virus, especially for children.

In addition to Unnasch, two physicians from Johns Hopkins All Children’s Hospital in St. Petersburg testified. They bolstered the position that the delta variant is affecting children more so than earlier versions of the virus, and that school masks will help prevent its spread.

“In an ideal world you wouldn’t need a mask mandate and everyone would do the right thing,” Unnasch said. “But unfortunately we do not live in an ideal world.”

Unnasch said the best way to keep the virus in check and ensure continued in-person education would be vaccinations. But because children under the age of 12 cannot get the vaccine yet, Unnasch said masks are important to prevent the spread.

“At this point in time we are back to what we know works ... which would include masking ... and improving ventilation in classrooms,” Unnasch said.

Unnasch said he had not conducted any studies about the efficacy of masks on school children, but referred to other research that he said shows they can reduce the spread of airborne particles by 75 to 99 percent, depending on the type.

When asked if it is safe for children to return to school without a mask mandate, Unnasch said such requirements should not be necessary.

Parents should have the right to guide their children’s health decisions, as the government has stated, he acknowledged. But only inasmuch as those choices do not have a serious impact on others.

Parents testify

Amy Nell of Tampa and Kristen Thompson of Gainesville told the court that they joined the lawsuit because they see the value of in-person education for their children, yet have worries about the health implications of optional masking policies.

They contend local school district leaders are better equipped to make the decision than state government officials.

Nell said she does not consider masks to be an issue for parental choice. It’s a public health matter, she said.

“This isn’t going away without involvement from the community,” she said of the virus.

Tampa parent Damaris Allen, also a plaintiff, called the state’s argument that parents deserve a choice a “false narrative.”

“My mask prevents you from getting what I have,” she said. “By saying we can’t have a mask mandate, you’re saying that my choice doesn’t matter.... It’s absolutely a public health issue.”

The case is set to resume at 9:30 a.m. Tuesday. The plaintiffs said they expect to finish by noon, after which the defense will present its arguments.

Stanford University professor Jay Bhattacharya, an expert that DeSantis has repeatedly turned to during the pandemic, will be the defense’s primary medical expert.

Florida Surgeon General Scott Rivkees, the head of the state’s department of health and a pediatrician formerly associated with the University of Florida, was not on the witness list provided Monday.

The Florida Department of Health did not respond to requests seeking comment on whether Rivkees plans to testify.

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