TALLAHASSEE — Gov. Ron DeSantis doubled down Wednesday on his insistence that parents should decide whether their children wear masks at school and whether they should quarantine or attend school after being exposed to someone who has tested positive for COVID-19.
His stance is reflected in a new rule issued by his new surgeon general, Dr. Joseph Ladapo. The rule takes masking and quarantine decisions out of school officials’ hands and leaves it up to families’ “sole discretion.” It replaces an emergency order that had been in place since early August and faced several court challenges from school districts.
“I trust parents and families, and I don’t think they are going to go around lying,” DeSantis said at a press conference in Kissimmee.
The rule had the immediate effect of bringing an administrative hearing on a school district-led complaint challenging the state’s ban of strict mask mandates to a screeching halt.
It also raised concerns among some medical experts who said the governor’s symptom-based approach was a “terrible” public health policy decision.
Thomas Hladish, a research scientist at the University of Florida’s department of biology and the Emerging Pathogens Institute, said asymptomatic people are a “major source” of COVID-19 transmission. He said transmission can occur with people before they develop symptoms or with people who never develop symptoms.
“We need to err on the side of caution because when you don’t quarantine and you cause another infection that can cause a cascade of infections,” Hladish said.
The governor, however, claimed the rule is to prevent “quarantining healthy students.” He said it is “damaging for their education advancement” and disruptive to families who are not able to work from home.
Under the new rule, if a student has been exposed to COVID-19, a parent or legal guardian can choose to keep their kids in school “without restrictions or disparate treatment, so long as the student remains asymptomatic.”
Rule comes to light in court
The emergency rule was unveiled to the public in court documents pertaining to a case brought forth by the school districts in Alachua, Broward, Leon, Miami-Dade and Orange counties.
The districts’ challenge to a mask mandate rule ended Wednesday after an attorney representing the state filed a motion to dismiss the case, arguing the case was moot because the new rule had wiped out the rule in question.
The request came two days before the case was set to begin before administrative law judge Brian Newman, who had set aside a week to hear arguments.
Newman said he had no choice but to agree, given state law.
“I don’t see any wiggle room whatsoever in doing anything other than dismissing this case,” Newman said at the end of a 20-minute motion hearing.
The districts can file a complaint against the new rule if they want. Attorneys for the districts indicated they would consider their options.
The lawyers also raised doubts about the manner in which things played out Wednesday morning. They had been prepared to take depositions in advance of the Friday hearing until learning of the change around 8:30 a.m.
The department “did the [new] rule with absolutely no public notice, no hearing, no transparency whatsoever,” said Jamie Cole, who represented the Miami-Dade and Leon county school districts. “What is the emergency now that necessitated making this emergency rule?”
Chris Petley, a spokesperson for the Leon district, called the state’s move “pure politics” to undermine schools’ efforts related to the pandemic.
“It’s just political maneuvering to change the rules in the middle of the game,” Petley said.
They said they would be examining their options, holding out the possibility of further legal fights. Ed Guedes, another lawyer who represents Miami-Dade Schools in a related case, raised concerns about the pattern that seemed to be emerging in the state’s approach.
“What’s going to happen the next time” a legal challenge nears its hearing date, Guedes said. “Are they going to wait until the last minute and say, ‘Oh, we’ve repealed it and here’s another’?”
If such a thing occurs, he observed, the state agency will have established rule-making in a way that evades judicial review.
Will other legal challenges be impacted?
The state’s new rule may carry implications for other legal challenges to DeSantis’ ban on strict mask mandates.
Matthew Dietz, a Miami lawyer representing families of children with disabilities, said he immediately contacted the U.S. departments of education and justice to see how they plan to protect the educational rights of his clients and others like them.
He also planned to ask federal Judge K. Michael Moore to reconsider an injunction against the state’s rule. Moore denied that request earlier this month.
“This further highlights the incredible way that it is unfair that kids with disabilities have to be subject to dangerous conditions while they exhaust their remedies,” Dietz said. “The harm becomes even more severe as Gov. DeSantis finds new ways to put kids with disabilities in danger.”
Charles Gallagher, an attorney representing a group of parents in a separate case, said he does not expect the new rule will impact his court battle. In that lawsuit, parents contend DeSantis exceeded his authority when directing the Department of Health to issue a rule that includes a parent opt-out for masking.
A Leon County judge blocked the state from punishing school districts who impose mask mandates with a medical opt-out only. The state appealed the decision and the case is ongoing before the 1st District Court of Appeal.
“I think they maybe saw some problems with their positions, thought that a quick edit might be a way to fix it and they could have another day to fight with the new version being interpreted,” Gallagher said. “I think that they evaluated some concern with the rule itself.”
Staying the course
Three districts with strict mask mandates that don’t meet the state rule said they will stay the course on their own policies.
In Miami-Dade County that means any unvaccinated high school student or staff member who came into contact with a COVID-positive person may return to class if they show a negative coronavirus test that is administered on or after the fifth day since exposure, as long as they have no symptoms.
“At this point, I want the community to remain calm,” superintendent Alberto Carvalho told reporters Wednesday. “The last protocol declaration that we put into place last week is the one that remains active until we get additional clarification from Tallahassee and until we meet with our medical experts.”
The Hillsborough County district notified families on Wednesday that, following the state rule, parents will be able to decide whether to quarantine their children after a COVID-19 exposure, as long as the student does not show symptoms of the virus.
The strict masking protocol, however, will remain unchanged until Oct. 15. Any student who wishes to opt out of masking must provide medical documentation.
Wednesday’s ruling didn’t dissuade Alachua County school district officials from adhering to their COVID rules.
“We plan to continue following our existing mask and quarantine protocols,” Alachua district spokesperson Jackie Johnson said.
She noted that the district had been financially sanctioned by the Florida Department of Education for violating the rule that now is voided. That raised questions among administrators, she said, of whether the state’s penalties must end unless the department issues a new set of allegations, holds new hearings and makes new findings.
The Florida Department of Education did not respond to questions about this concern.
“We are consulting with our attorneys on all of this,” Johnson said.
U.S. Department of Education spokeswoman Rachel Thomas said in a statement that the department will continue to back school boards that implement strict mask mandates or other mitigation measures to prevent the spread of COVID-19.
“These decisions don’t just affect ourselves, they affect our peers, teachers, and people around us, which is why the department will continue to encourage and support districts that implement prevention strategies such as universal indoor masking, testing, contact tracing, and quarantining and isolation when needed,” Thomas said.
The U.S. Centers for Disease Control and Prevention recommends that students who are not fully vaccinated and are exposed to someone with COVID-19 should get tested and be quarantined at home for 14 days after exposure, regardless of their test results.
If students are exposed and are fully vaccinated, they should get tested but do not need to quarantine at home following exposure.
The Pfizer-BioNTech coronavirus vaccine has shown in late-stage trials to be safe and highly effective in children aged 5 to 11 years, the company announced on Monday.
The shot is currently available under emergency-use authorization by the Food and Drug Administration for kids between 12 and 15 years old and as a third dose for people ages 12 and older who have weakened immune systems.
Times Staff Writer Marlene Sokol and Miami Herald Staff Writer David Goodhue contributed to this report.