It’s mask up, for now, without state punishment for Florida public school districts that want to impose mask mandates.
A Leon County circuit judge on Wednesday ruled that his order preventing the state from enforcing its ban on mask mandates in schools should take immediate effect.
Enforcement of the order, issued two weeks ago, had been delayed after the state appealed Judge John Cooper’s decision to the First District Court of Appeals.
For the stay, as it’s called, to remain in effect, the state would have had to show two things: a likelihood of success on appeal and that delaying the ruling would not irreparably harm the plaintiffs.
Full coverage of the COVID-19 outbreak and how it impacts you.
Cooper said the state failed on both counts.
“There’s no harm to the defendants if the stay is set aside,” Cooper ruled. But during a pandemic, he said, there is a likelihood of harm to children forced to attend class with maskless classmates.
"We are not in normal times. We are in a pandemic. We have children that can’t be protected by vaccination” because, as they are under 12 years old, they’re ineligible for vaccine, Cooper said. “Children are at risk and they provide at least some protection by masking.”
“The greater weight of the evidence did not support the claim that mandatory face masks … would create any meaningful harm to those wearing it,” he had ruled, a position at odds with an adviser to Gov. Ron DeSantis who called masking "child abuse."
Parents of children attending public schools sued state education officials and DeSantis, who has banned mask mandates while threatening to cut funding for districts that defy that order.
Attorneys representing the plaintiffs argued they would be irreparably harmed if unmasked children were still allowed in their children’s classrooms, as DeSantis has mandated.
One of those attorneys, Charles Gallagher, argued, “There would be no irreparable harm in the event the stay is vacated to the defendants. Conversely, the irreparable harm to the plaintiffs has already been found as a matter of law during the trial.”
The continuing constitutional violation of the parents’ and children’s rights to a safe classroom, he said, is such a harm. Letting the stay remain in place, Gallagher said, “would mean more sick and dead children,” while vacating the stay “would save lives.”
The attorney for the state, Michael Abel, criticized Gallagher for claiming children would be harmed if mask mandate bans remain in place, saying “that rhetoric is unhelpful and irresponsible."
The state said it would likely win on appeal, though based on defenses Judge Cooper rejected at trial.
Abel noted the ruling is the first in the state to address the Parents Bill of Rights, a new law passed at DeSantis’ behest, that the governor has said gives parents — not school districts relying on advice of public health experts — the right to decide whether to mask children in schools.
Abel said because it is such a new law, the likelihood of success on appeal is substantial. “There is no possible way for the court to conclude the defendants would be unlikely to succeed on appeal,” he said, adding this was a "model case" for not lifting a stay because the underlying statute is so new.
The court noted DeSantis issued his order after being advised by purported experts who claimed masking amounted to child abuse, were ineffective and children were not affected by COVID — all false claims, the judge found.
“We believe we will prevail on appeal,” Abel said. “But even if this is a close call, we would respectfully submit close calls would mitigate toward keeping the stay intact.”
The state could now seek a stay from an appellate court, which could then put the order on hold until it decides the case.
The judge said that new law, the Parents Bill of Rights, was central to the state’s argument that it had a right to ban mask mandates. But, he found, it also gave parents a right to protect their children from unmasked classmates in districts that would mandate masks, if DeSantis were not threatening to punish them for it.
Cooper said he did not rule mask mandates must be allowed, but that school districts would have to defend those policies if challenged.
The state called that “an unusual interpretation” of the law by the judge, but Cooper countered, “this is not a complicated case.”
He noted he was just quoting from the statute itself when he said school districts should be allowed to set policies — including mask mandates — as long as they’re “reasonable and necessary to achieve a compelling state interest” and is “narrowly tailored and not otherwise served by less restrictive means.”
Perhaps addressing suggestions by some that he was an activist or biased judge, Cooper said, “If you look at my record, it’s not somebody who runs all over the place ruling against the governor.” Rather, he said, he was “someone who tried to figure out what the law is” and rule consistent with the law.
Meanwhile, a federal judge said Wednesday he would rule "as quickly as possible” on another complaint seeking to block the state from enforcing DeSantis' ban on mask mandates in schools.
In the federal case, 12 parents of 15 children with disabilities in eight districts across the state claim the governor is denying them access to a “free and appropriate public education” by allowing unmasked children in the classrooms they hoped to share.
All the children have intellectual or developmental disabilities and are also more susceptible to COVID, they argue, because of asthma, Down syndrome, autism or other conditions.
Their attorney, Matthew Dietz, told U.S. District Court Judge K. Michael Moore that the ban on mask mandates effectively excluded them from the same in-person learning opportunities provided other children.
The state asked Judge Moore to dismiss the complaint, saying the children and their parents failed to first exhaust all their remedies through the existing administrative processes created to help children with disabilities.
Basically, DeSantis’ attorney, Rocco Testani said, that process provides a “completely adequate and wholesome remedy” for what they seek.
He also argued they did not have standing to bring an action because they are already either attending schools in person in districts that defied the governor’s threats on mask mandates, or are participating in the process set up to accommodate their special needs.