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A divided Florida awaits ruling on school masks as trial nears a close

A judge will decide Friday whether Gov. Ron DeSantis’ order against mask mandates is constitutional.
Students, some wearing protective masks, arrive for the first day of school at Sessums Elementary School in Riverview in early August.
Students, some wearing protective masks, arrive for the first day of school at Sessums Elementary School in Riverview in early August. [ CHRIS O'MEARA | AP ]
Published Aug. 25
Updated Aug. 26

The third day of Florida’s heated court battle over school mask mandates ended Wednesday with no ruling, leaving observers across the state waiting to see how to proceed next.

Leon County Judge John C. Cooper said he would take closing arguments Thursday morning and rule Friday morning on the case brought by parents from Hillsborough, Pinellas, Palm Beach and Alachua counties.

“I need some time. I need what I call alone time, with my door closed and no interruptions to go through this,” Cooper said.

Related: Pinellas School Board rejects change to student mask rule

The mask mandate debate has sparked debate statewide and even grabbed the attention of the White House. The judge’s decision could change the way schools work to fend off the coronavirus moving forward and affect the relationship between the state and local school boards.

As of Wednesday, 10 of Florida’s 67 school districts had required staff and students to wear masks as the state continues to deal with a wave of COVID-19 cases. Other school districts, such as Pinellas County, have kept masks voluntary or allowed parents to opt out of the requirement.

Districts that do not reverse their mask mandates are expected to face financial penalties from the state. The districts in Broward and Alachua counties could be the first to face sanctions, as they continue to defy state order and Broward school officials seek legal avenues to challenge the state.

President Joe Biden, meanwhile, has vowed to step in and support local school officials who are threatened with financial penalties.

The state’s arguments

The last day of the trial included testimony from three parents who support the stance of DeSantis’ administration, along with Stanford University professor Dr. Jay Bhattacharya, Florida K-12 Chancellor Jacob Oliva and Dr. Anthony Kriseman, a pediatric pulmonologist at Johns Hopkins All Children’s Hospital in St. Petersburg.

Bhattacharya, who studies health economics, was the state’s primary medical expert in the case. Kriseman appeared as a plaintiff’s witness to rebut Bhattacharya’s statements about mask studies.

The first to testify was Lee County parent Jennifer Gillen. She said her son, who has attention deficit hyperactivity disorder, will repeat fifth grade, in part because masks stressed him out so much that he had to do his schooling from home last year and he did not succeed.

Related: Against the trend, some Florida school districts keep masks optional

Gillen said she has conducted her own research on masks and determined children are “much safer not wearing masks.” She argued it is “child abuse” to require children to wear one, and said parents should be allowed to make their children’s health decisions.

“That is my American right,” she said. “We’re actually having to fight some of our own people. That’s frightening.”

Ashley Benton, a Leon County parent, testified she is unable to use her district’s medical opt-out exemption for one of her four children because her pediatrician would not sign the form. Another of her children willingly wears a mask, she said.

“We’ve kind of left that up to him. ... We don’t have any issues with him wearing one. We try to teach him the proper way,” Benton said, contending parents should have the ability to work with their children’s individual needs.

Oliva’s testimony bolstered the state’s position that Florida is full of choices for parents, as the governor’s order is meant to provide.

During his hour-long testimony, Oliva said when it came to the pandemic and mitigation efforts in schools, the state relied upon the guidance of the Florida Department of Health. Oliva said he has “great faith” in Florida Surgeon General Scott Rivkees.

Rivkees, a pediatrician formerly associated with the University of Florida, was not asked to testify for the defense in the trial. Neither the department of health nor the governor’s office responded to requests seeking comment on why Rivkees was not called to testify.

The state’s expert

Bhattacharya took the stand for the second time during the trial on Wednesday. He continued to espouse the arguments that DeSantis has used regarding the virus, often ignoring questions from the plaintiffs’ lawyer in favor of questions he said were more relevant.

He said there is no evidence to show districts with mask mandates fared better than districts without one.

“The delta variant, as I said, from the data on the U.K., is less deadly, but perhaps more transmissible. There’s no evidence, there’s no randomized evidence, no high-quality evidence, that masks stop the disease spread,” Bhattacharya testified on Tuesday.

At the same time, he testified, requiring children to wear masks “harms children’s social and emotional development.”

When asked if he thinks masking children is “child abuse,” Bhattacharya said it “depends on the children.”

Bhattacharya, who has advised the governor since last September, had been criticized across the nation for his views on handling the pandemic. The plaintiffs’ lawyers and experts also sought to raise doubts about his credibility.

“He’s a medical economist,” University of South Florida infectious disease expert Thomas Unnasch testified, saying he did not consider Bhattacharya an expert.

As a rebuttal witness, Kriseman also countered Bhattacharya’s statements that masks are an ineffective way to combat the virus in school. He took a broader community view.

“Our hospital is bursting at the seams. We’re worn out. ... We need a multilayered approach,” Kriseman said. “Many things show masking is effective. We just don’t have that randomized study to lay it in stone.”

The case is set to resume at 10:15 a.m Thursday.