Judge dismisses counties' challenge of Florida statewide ban on mask mandates
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Saying that Gov. Ron DeSantis’ administration struck the “right balance,” an administrative law judge Friday rejected a challenge to a state Department of Health rule designed to prevent student mask requirements during the COVID-19 pandemic.
The challenge was filed by school boards in Alachua, Broward, Duval, Miami-Dade, Orange and Leon counties, which are among eight boards that faced state financial penalties after adopting student mask requirements.
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In a 25-page decision, Administrative Law Judge Brian Newman upheld the emergency rule, which, in part, said decisions to opt out of student mask requirements are at the “sole discretion” of parents or guardians.
He wrote that the school boards “failed to prove that the emergency rule opt-out provisions facilitate the spread of COVID-19 in schools.”
“On the contrary, the evidence admitted in this case established that the emergency rule opt-out provisions strike the right balance by ensuring that the protocols that govern the control of COVID-19 in schools go no further than what is required to keep children safe and in school,” Newman wrote.
Attorneys for the school boards argued during a two-day hearing last month that the health department improperly skirted normal rulemaking processes when it issued the Sept. 22 emergency rule. But Newman wrote that the department acted within its authority when it issued the rule.
“The preamble to the emergency rule sets out a facially adequate factual basis for emergency rulemaking. In addition, the evidence presented justifies emergency rulemaking,” the order said.
Newman listed a number of shifting COVID-19 policies by school districts that filed the challenge.
“These policy pivots are not recited to criticize the school boards; COVID-19 policies should be revisited frequently and adapted to the latest COVID-19 case data. But respondent (the health department) must be just as nimble when adopting statewide COVID-19 protocols,” Newman wrote.
The judge, for example, cited the Leon County School Board’s recent adoption of a policy allowing parents to opt-out of student mask requirements, calling it an “indication that such policies are safe.”
The Department of Health rule carried out a July 30 executive order by DeSantis that was aimed at preventing mask mandates. The department issued an initial rule Aug. 6 and a revised — and strengthened — version Sept. 22 The rule served as a basis for the state Department of Education financially penalizing districts that required students to wear masks.
The Sept. 22 rule also allowed children to attend school if they have been exposed to COVID-19 but are asymptomatic, preventing districts from requiring quarantines for those students. That issue was not in the Aug. 6 version of the rule.
Newman wrote Friday that the school boards failed to prove that giving parents opt-out control would lead to more children spreading the virus.
“As to whether the emergency rule opt-out provisions make it more likely that children will spread COVID-19 to others, that too was unproven,” he wrote. “The emergency rule requires sick children to stay home. It is extremely rare for asymptomatic people to spread COVID-19 and children are otherwise inefficient transmitters of the ... virus.”
While the case moved forward, some of the districts scaled back or eliminated mask requirements as COVID-19 cases in the state dropped. For example, the Duval County and Orange County districts decided to allow parents to opt their children out of wearing masks.
"This was the first proceeding that reached the legal merits of the rule," said Christina Pushaw, press secretary for Gov. Ron DeSantis, who has opposed mask mandates in schools.
"As we expected, the court affirmed that the rule is lawful. Any school board politician in Florida who persists in defying the law and infringing upon parents’ rights will face consequences," she added in a statement.
In his own statement, Hanna said the ruling "is disappointing, but given the challenges we faced going up against the Department of Health and the Office of the Governor, we are not totally surprised.
"Though our district is currently in compliance with the Florida Department of Health rule, we believe it is important to stand up for local control and home rule," he added. "We believe local leaders should have a voice in the decisions that impact local students and we are concerned about the growing over reach of state government.
"We will always fight on behalf of the children here in Leon County to keep them safe and keep our schools open."
The News Service's Jim Saunders and Jim Rosica of the USA TODAY NETWORK-Florida Capital Bureau contributed.
Earlier post: An administrative law judge Friday tossed out a challenge by six Florida school districts to the state's ban on mask mandates.
School boards in Miami-Dade, Leon, Duval, Orange, Broward and Alachua counties had filed the administrative challenge, joined by elected Leon County Schools Superintendent Rocky Hanna.
Brian Newman, deputy chief judge of the Division of Administrative Hearings, dismissed the case, in part saying the state's emergency rule "strikes the right balance by implementing protocols that are no more restrictive than required to keep children safe and learning in school."
The state’s crackdown on the school boards relied on a Sept. 22 emergency rule, which said decisions to opt out of mask requirements are at the “sole discretion” of parents or guardians.
That replaced an Aug. 6 version of the rule that called for parents to be able to opt out of mask mandates but did not expressly prevent school districts from requiring doctors’ notes for exemptions.
The emergency rule is designed to carry out a July 30 executive order by Gov. Ron DeSantis that sought to prevent mask requirements. It also came after some districts only allowed students to be exempt from mask mandates if they had documented medical reasons.
Newman heard testimony during a recent two-day hearing.
In his Friday order, he said the emergency rule in question "involves parents in decisions involving their child’s health and education (and) does not run counter to the broad rulemaking directive found" in state law.
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This article originally appeared on Tallahassee Democrat: Mask mandates in Florida: Judge dismisses challenge by counties
