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State Loses Challenge To Mask Mandate Ban In Florida Schools

Will kids be required to wear masks again this school year? School districts are still fighting with the state about it. Here, masked students at Carrie P. Meek/Westview K-8 cross in front of a school bus in this Oct. 5, 2020 photo.
Emily Michot
Miami Herald
Will kids be required to wear masks again this school year? School districts are still fighting with the state about it. Here, masked students at Carrie P. Meek/Westview K-8 cross in front of a school bus in this Oct. 5, 2020 photo.

A Leon County judge says the state cannot selectively enforce part of a law — and that the Parents Bill of Rights — which the administration has used to justify its mask ban — does not allow the state to issue blanket prohibitions.  The ruling is likely to be appealed, but for now, school district’s can keep their mask policies.

A group of parents sued the state over its mask ban and in his ruling, Judge John Cooper said the ban infringes on local school boards’ authority to set their own policies.

“The actions of the defendants do not pass constitutional muster because they seek to deprive the school boards in advance and without the school boards’ right to show the reasonableness of the policy. The law does not require that the school board get permission for the policy in advance, it requires only that if a policy is challenged, it has a burden to prove its validity under the guidelines of the statute,” Cooper said.

Palm Beach county parent Lesley Abravanel is among those who brought the lawsuit. She testified that she was shocked when she saw the classroom her kids would be in during a recent open house at the school. Desks were clustered together in groups of four and there was no way for kids to stay distanced.

“We’re throwing our children into pretty much a petri dish right now. If everyone isn’t required to wear a mask, how are we going to protect children and staff from catching this Delta variant? We are not. I’m terrified, and so is every other parent I’ve spoken with,” Abravanel said during her testimony earlier this week.

University of South Florida public health professor Thomas Unnash testified for the plaintiffs. When asked about how the Delta variant differs from the original strain of the virus, Unnash noted Delta is so contagious that if it were compound interest, investors would see a strong return.

"With the Delta virus, one person infected six, those six went on to infect 36. So it’s the miracle of compound interest…but in this case, it’s exponential growth of a pretty terrifying infection.”

The state has presented its own witnesses, including two Leon County parents who’ve been challenging the district on its mandatory school mask policy.

Ashley Benton testified that her fifth-grade daughter, who has a sensory processing order that makes mask wearing difficult and painful—is suffering from the district’s policy. Benton, who has been present at several recent local school board meetings, says she consulted with her daughter’s pediatrician—but that the doctor refused to sign off on the medical opt-out form the district is requiring.

“At this point, if I can’t get a medical opt out, I think I will have to pull her out of school,” Benton told the court. Leon school officials have offered to work with Benton on her situation.

Cooper, in explaining his ruling, said pediatricians need to sign opt outs for the students who need them.

The state’s legal defense also included the state’s K-12 Chancellor Jacob Oliva who noted some students with disabilities, and those learning English, often struggle when the faces of their teachers are obscured. And a frequent advisor to Gov. DeSantis, Stanford University professor of medicine, Dr. Jay Bhattacharya, who noted other countries and public health entities have issued conflicting guidance on the effectiveness of requiring school children to wear face coverings.

“The World Health Organization does not recommend recommending kids 2-5…Public Health England, and the U.K. as a whole, has decided not to have masking at all in schools. So these bodies are looking at the same evidence base and coming to these conclusions in part because it’s a policy decision that weighs costs and benefits,” Bhattacharya said.

Cooper noted that opinion appears to be a minority one, and that Florida law has long recognized the CDC as the “gold standard” for infectious diseases. He cited several places in state law that follows CDC guidance.

The ruling comes as at least 10 Florida school districts are openly defying Gov. Ron DeSantis’ ban on mandatory school mask policies. Those 10 districts represent more than half of the students enrolled in Florida Public Schools. DeSantis has stated he believes parents have the right to decide for themselves whether they want their children to wear face coverings, and has cited the Parents Bill of Rights as the cornerstone of his argument. But Judge John Cooper, in his ruling, noted “A school district adopting a policy, such as a mask mandate, is acting within its discretion. It has been given this discretion by the Florida legislature,” and Cooper says the Parents Bill of Rights does not prevent districts from making mandates, as long as those mandates are justifiable and narrowly tailored.
Copyright 2021 WFSU. To see more, visit WFSU.

Lynn Hatter has served as reporter/producer for WFSU since 2007 with education and health care issues as her key coverage areas. She is an award-winning member of the Capital Press Corps and has participated in the NPR Kaiser Health News Reporting Partnership and NPR Education Initiative.
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