Judge rules for parents in Florida school mask case, a blow to DeSantis

The governor overreached with an order that sought to ban mask mandates in schools, Leon County Circuit Judge John Cooper says.
Gov. Ron DeSantis lost a round in court Friday in the debate over masks in schools.
Gov. Ron DeSantis lost a round in court Friday in the debate over masks in schools.
Published Aug. 27, 2021|Updated Aug. 28, 2021

A judge in Leon County ruled Friday that Gov. Ron DeSantis and his administration acted “without legal authority” when barring universal mask mandates in schools, delivering a blow to the Republican leader as a growing number of school districts defied his order.

Circuit Court Judge John Cooper did not contend the governor violated the state Constitution when it came to providing safe schools or recognizing the local authority of school boards. Rather, he said DeSantis and his administration tried to unlawfully block mask mandates by improperly invoking and selectively enforcing Florida’s new “Parents’ Bill of Rights” law.

“Seeking to enforce a policy through executive order, and through actions that violate the provisions of the Parents’ Bill of Rights, is by definition, arbitrary and capricious,” said Cooper, who spoke for 2½ hours to outline his findings.

DeSantis responded by saying the court ruling was “not based on science and facts” and made with “incoherent justifications.” The Florida Department of Education, which was enforcing the mask mandate ban, said Cooper’s decision “discards the rule of law” and vowed to keep fighting in court.

Related: Florida averages 250 COVID deaths a day; children top infections, positivity rates

Charles Gallagher, lead attorney for the plaintiffs, called the ruling “solid” and said he would attempt to ensure any appeal does not stop the judge’s order from taking effect.

Following the ruling, school district officials around the state scrambled to determine what it meant, and how it might affect their operations. Most expected little change in how they deal with masks.

Ten of the state’s 67 school districts have imposed mask mandates, with a documented medical condition as the only way to opt out.

As Cooper handed down his ruling, the state showed no indication of backing down. Education commissioner Richard Corcoran on Friday sent non-compliance letters to the eight other districts that have imposed mask mandates without an opt-out provision, including Miami-Dade and Hillsborough counties.

The letters included the same threats and allegations he leveled against Broward and Alachua school officials earlier this month.

Miami-Dade superintendent Alberto Carvalho said he is confident his district’s mandate is in line with the law. Hillsborough School Board attorney Jim Porter said he was reviewing Corcoran’s letter in light of the judge’s ruling, which will not take effect until it is converted to written form, possibly on Monday.

Cooper said the state cannot take action against local school boards that impose a blanket ban on face mask mandates. He said school boards can enact policies as long as they are reasonable, address a compelling state interest, are narrowly tailored, and are the least restrictive way of addressing the virus — the standards set forth in the Parents’ Bill of Rights.

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He said the evidence showed that the mask mandates in place so far in various school districts met that standard, but that people who disagreed were free to formally challenge them.

The law in question

Cooper said 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 promulgated by Republicans and signed by DeSantis on June 29.

DeSantis can no longer wield emergency powers under state law, Cooper added, because he had allowed the COVID-19 state of emergency to lapse a month before issuing his executive order. So he had to rely on the new law.

That 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.”

Referring to the law, Cooper said: “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.” He noted the defendants used the first half of the statute but not the second part when they issued their order.

Cooper said the Florida Department of Education can enforce the Parents’ Bill of Rights, but “they have to do so in accordance with the terms of the law.”

“At least until someone rules otherwise … they must allow a due process proceeding of some sort to allow for a showing of reasonableness,” Cooper said.

The case marks the first court challenge of the new law, so Cooper is the first judge to interpret it. He acknowledged the 1st District Court of Appeal might not agree. That’s where the state appeal will head next.

Arguments in the case

The case, at its core, pitted personal liberty versus collective responsibility. Cooper acknowledged that parents’ rights are “very important” but said they are not without some reasonable limitation to protect the rights of others.

He used the consumption of alcoholic beverages as an example.

“It is our right to drink alcoholic beverages if we are over 21,” Cooper said. “But we cannot get in our car and start driving around while we’ve had alcoholic beverages that impair our ability to drive.”

In fact, he said, the law is filled with examples of how the government imposes restrictions that might not adhere strictly to the Parents’ Bill of Rights. But it does so for the public good.

“We will not solve any issue if we can’t sit down and work together and take positions recognizing that what’s going on is not some recent imposition on someone or some attack on the country,” Cooper said. “That’s all the preaching you’ll hear from me.”

At one point during the deliberations, he dissected the governor’s executive order and said it relied on “incorrect” statements. For instance, he cited a Brown University study from May that he said found no correlation between mask mandates and COVID-19 cases rates between school districts in Florida and two other states.

“If that is true, why did the Brown report recommend that universal masking was still the way to go?” Cooper asked. “I don’t say that the governor has time or not to read a report that is that thick, but his advisors do. So the statement in the executive order is just incorrect.”

The judge also criticized comments made by Dr. Mark McDonald, a Los Angeles-based clinical psychiatrist, during a closed-door roundtable discussion on masks hosted by the governor days before he issued his executive order.

McDonald said “masking children is child abuse” and that “there’s no evidence to support the contention that masks prevent the transmission of respiratory illness through viruses” like COVID-19.

“The governor was told that the use of masks is child abuse and bringing harm to every child in the country. I’ve seen no scientific evidence of that to support that statement in this case,” Cooper said.

Local school officials react

Parents who brought the complaint to court said they were “ecstatic” with the judge’s ruling, despite knowing the state will appeal.

“I am extremely grateful for the time and consideration that the judge put into that finding. It was very well thought out,” said Amy Nell, a Tampa mom who testified on the first day of the trial. “We recognize there is a greater community good to be taken into account and not just individual personal liberties.”

Damaris Allen, another Tampa parent in the case, said she never understood how the governor and Department of Education could apply the Parents’ Bill of Rights as they attempted to do. She said she was happy the Hillsborough County school district will be able to keep its mask mandate.

“It’s kind of what I expected,” Allen said.

Carvalho, the Miami-Dade superintendent, told reporters gathered at Miami Beach Senior High on Friday afternoon that the district received a letter from the Department of Education that day requiring a rationale for its mask policy.

The district must reply by 5 p.m. Wednesday.

Regarding Cooper’s ruling, Carvalho said it affirmed the district’s belief all along that the protocols it adopted were situated well within state law, including the Parent’s Bill of Rights.

The Hillsborough school district issued a statement saying it agreed its policy was consistent with the judge’s ruling. “We will continue to make the health and safety of students and staff top priority,” the statement said.

Broward County Public Schools interim superintendent Vickie Cartwright said district officials also believe their mask mandate complies with state law.

She also said that so far, the number of students and parents who have complained about having to wear face coverings is low. The state is requiring the district to report daily the number of students who receive some sort of punishment or consequence for refusing to wear one.

Other districts also chimed in. The Pasco County school district sent out a brief alert that its rule, which allows for voluntary mask use, will remain in place.

The Pinellas County school district also has a mask-optional rule, which its School Board reinforced this week in a 4-3 vote. Officials there said they were reviewing Cooper’s order.

Pinellas anti-mask activist David Happe said he expected the district to maintain its position, but was glad to know that Cooper left open the possibility of challenging a mask mandate under the Parents’ Bill of Rights, which the judge left intact.

Officials in the Alachua County school district, who have stood firm against the administration’s threats to withhold funding over its mask mandate, said they were gratified to hear the judge’s ruling. District superintendent Carlee Simon told Corcoran, the education commissioner, as late as Thursday evening that her district believed it was acting legally and would not comply with the state’s orders.

“It was unfortunate that this public health and safety issue turned political and ended up in court,” Alachua School Board vice chairperson Tina Certain said, noting her board acted after hearing from medical experts in a way to narrowly address local health concerns.

Simon said she expected Alachua to continue its masking policy, and also to move ahead with additional legal challenges to the state action.

“We have other points to discuss in this case, because we weren’t directly involved,” Simon said. “I don’t think that we’re done.”

David Goodhue of the Miami Herald and Marlene Sokol of the Tampa Bay Times contributed to this report.

Clarification: Judge John Cooper is a circuit judge in Leon County. An earlier version of this story was unclear about his status in one mention.

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