DeSantis rule banning some local mask mandates overturned by Florida court

Judge says the ban violates parent's bill of rights
Judge John Cooper
Posted at 12:21 PM, Aug 27, 2021

TALLAHASSEE, Fla. — Governor Ron DeSantis’ ban on local mask mandates will be put on hold after Leon County Circuit Court Judge John Cooper ruled, in part, that the state's Parent's Bill of Rights prohibits such a ban from being enforced.

"It (the Parent's Bill of Rights) doesn't ban mask mandates at all," Judge Cooper said. "If you do adopt one, it has to be reasonable, support a compelling state purpose, be narrowly drawn, and accomplish a goal not available through some other means."

Cooper's decision will be effective as of the date of the written order, even though the verbal order was enacted just after noon Friday. The projected date of a written order, as discussed at the beginning of Friday's session would likely be Tuesday.

"A school board enacting a mask mandate is acting within its discretion provided by the Florida Legislature if they meet the requirements set forth in the parent's bill of rights," Judge Cooper said Friday while describing his decision.

Still, Judge Cooper took special note to say he wasn't issuing an injunction or order against Governor DeSantis but instead enjoining the enforcement agencies. He also noted several times throughout Friday's hearing that parents' rights are "very important," but they're not without some reasonable restrictions as all rights in the United States are subjected to by courts.

When speaking of how rights can be limited, Judge Cooper discussed the ability of the state to restrict people from drinking and driving, even though drinking alcohol is a right. He also paraphrased the classic legal example from Schenck v. United States of not being able to yell fire in a crowded theater, even though we have freedom of speech. Cooper used the examples to explain rights can be limited if, "exercising that right is harmful to other people."

The case concluded Thursday with attorneys for both sides wrapping up their cases in closing arguments. Attorney Craig Whisenhunt told Cooper that Gov. Ron DeSantis exceeded his authority, issuing a dangerous and illegal order requiring parental opt-outs.

"We're asking you to direct Commissioner [Richard] Corcoran and the Department of Education to cease and desist the enforcement of the unconstitutional order that they are currently beating school districts down with to force compliance in unsafe environments," Whisenhunt said.

At least 10 districts have openly defied the governor's order, installing mask mandates without the required parental opt-outs. They include the state's six largest school systems, which represent nearly half of Florida's public students, including Hillsborough County. The State Board and Department of Education have threatened financial sanctions for any district in violation.

To date, only two school districts have been officially penalized -- Broward and Alachua counties. The state is withholding funds equal to the monthly pay of all school board members who voted in favor of noncompliance.

Judge Cooper agreed in part with the plaintiffs and took time to explain the governor's order and its basis was in opposition to recommendations from the Centers for Disease Control and Prevention, the American Academy of Pediatrics, medical experts, and the scientific community. Cooper noted multiple Florida statutes are based on CDC recommendations and guidance and that the CDC "is considered the preeminent medical authority in this country about infectious disease.

Attorneys for the state alleged the ban is a policy decision protected under the Parents' Bill of Rights.

For his part, Governor Ron DeSantis said Thursday he would appeal any unfavorable decisions.

"Obviously, if we win in district court or trial court, I'm sure it'll be appealed on the other side too," DeSantis said. "That's good. We obviously need to have this stuff crystallized."

After the decision, Taryn Fenske, Communications Director for Gov. Ron DeSantis sent the following statement.

It’s not surprising that Judge Cooper would rule against parent’s rights and their ability to make the best educational and medical decisions for their family, but instead rule in favor of elected politicians. This ruling was made with incoherent justifications, not based in science and facts – frankly not even remotely focused on the merits of the case presented. We are used to the Leon County Circuit Court not following the law and getting reversed on appeal, which is exactly what happened last year in the school reopening case. We will continue to defend the law and parent’s rights in Florida, and will immediately appeal the ruling to the First District Court of Appeals, where we are confident we will prevail on the merits of the case.

Jared M. Ochs Director of Communications and External Affairs for the Florida Department of Education sent the following statement.

A spokesperson for Manatee County Public Schools said the district does not have a statement regarding the ruling, but added, "At Tuesday’s meeting, the School Board of Manatee County extended a Mask Mandate with an opt-out provision through Friday, October 29th. That is the policy in place at present."

A spokesperson for Sarasota County Schools said, "At this time there will not be a change in our masking policy."

Polk County Public Schools released a statement on Facebook saying, "A mask-optional policy remains in effect for Polk County Public Schools. At this time, the Polk County School Board has not indicated there would be any changes to our policy."

Pinellas County Public Schools released a statement that reads in part, "At this time, masks will remain optional for students and staff. We will continue to have masks readily available on all school campuses and school buses."

We also reached out to Hillsborough County Schools, who gave the following statement:

"Although Hillsborough County Public Schools was not a party to the recent lawsuit brought by a group of parents from across the state against the Governor and Department of Education, we were monitoring the case closely. Today, the judge ruled in favor of the parents and found local school boards have the right to adopt reasonable policies regarding mandatory face coverings. The actions of this School Board when they adopted mandatory face coverings in schools is consistent with the judge's ruling. We will continue to make the health and safety of students and staff top priority."