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Judge blocks Florida governor's order banning mask mandates

By AP | Aug 27, 2021

By TERRY SPENCER and CURT ANDERSON

Associated Press

FORT LAUDERDALE, Fla. (AP) — Florida school districts can legally require their students to wear masks to prevent the spread of COVID-19, a judge ruled Friday, saying Gov. Ron DeSantis overstepped his authority when he issued an executive order banning such mandates.

Leon County Circuit Judge John C. Cooper agreed with a group of parents who claimed in a lawsuit that DeSantis’ order is unconstitutional and cannot be enforced. The governor’s order gave parents the sole right to decide if their child wears a mask at school.

Cooper said DeSantis’ order “is without legal authority.”

His decision came after a three-day virtual hearing, and after 10 Florida school boards voted to defy DeSantis and impose mask requirements with no parental opt-out. Districts that have done so include Miami, Fort Lauderdale, Orlando, Tampa, Jacksonville, West Palm Beach and others. Cooper’s ruling will not go into effect until it is put into writing, which the judge asked the parents’ lawyers to complete by Monday.

Cooper said that while the governor and others have argued that a new Florida law gives parents the ultimate authority to oversee health issues for their children, it also exempts government actions that are needed to protect public health and are reasonable and limited in scope. He said a school district’s decision to require student masking to prevent the spread of the virus falls within that exemption.

The law “doesn’t ban mask mandates at all,” Cooper said during a two-hour hearing that was conducted online because of the resurgent pandemic. “It doesn’t require that a mask mandate must include a parental opt-out at all.”

The judge also noted that two Florida Supreme Court decisions from 1914 and 1939 found that individual rights are limited by their impact on the rights of others. For example, he said, adults have the right to drink alcohol but not to drive drunk, because that endangers others. There is a right to free speech, but not to harass or threaten others or yell “fire” in a crowded theater, he said.

“We don’t have that right because exercising the right in that way is harmful or potentially harmful to other people,” Cooper said. He added that the law “is full of examples of rights that are limited (when) the good of others … would be adversely affected by those rights.”

In that same vein, he said, school boards can reasonably argue that maskless students endanger the health of other students and teachers.

DeSantis has dismissed the recommendation from the Centers for Disease Control and Prevention that people wear masks, questioning its legitimacy and saying it is not applicable to Florida. But Cooper cited numerous Florida laws and statutes — such as those covering health care in nursing homes, prisons and elsewhere — that direct decision-makers to give great weight to CDC guidelines.

Cooper said the state’s medical experts who testified during the trial that masking is ineffective in preventing COVID-19’s spread are in a distinct minority among doctors and scientists. He also said that while DeSantis frequently states that a Brown University study concluded masks are ineffective, the study’s authors wrote that no such conclusion should be drawn.

“I don’t say that the governor has time enough to read a report that thick, but his advisers do … and that statement is incorrect,” Cooper said.

The governor’s office said Friday that Cooper’s decision wasn’t based on the law and the state will appeal it.

“It’s not surprising that Judge Cooper would rule against parents’ rights and their ability to make the best educational and medical decisions for their family, but instead rule in favor of elected politicians,” spokeswoman Taryn Fenske said in a statement. “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.î

The highly contagious delta variant led to an acceleration in cases around Florida and record high hospitalizations just as schools prepared to reopen classrooms this month. By mid-August, more than 21,000 new cases were being added per day, compared with about 8,500 a month earlier. Over the past week, new cases and hospitalizations have leveled off. There were 16,550 people hospitalized on Thursday, down from a record of above 17,000 last week — but still almost nine times the 1,800 who were hospitalized in June.

The 10 districts that have defied DeSantis’ order represent slightly more than half of the 2.8 million Florida public school students enrolled this year. The governor, a Republican who is eyeing a possible presidential run in 2024, had threatened to impose financial penalties on school boards that voted for strict mask mandates. Democratic President Joe Biden said if that happened, federal money would be used to cover any costs.

Orange County, home to the city of Orlando and Disney World, on Tuesday became the latest large district to impose a mask mandate after positive tests for COVID-19 disrupted classes. From Aug. 7 through Friday, the district reported 2,375 positive cases among students since school began, with more than 1,800 people under active quarantine, according to the districtís dashboard.

In Fort Lauderdale on Tuesday, the Broward County School Board told the Department of Education that it won’t back down on its requirement that students wear masks. Its policy, like that of most other districts, gives parents a medical opt-out for students. The board said giving parents the unlimited right to send their kids to school without a mask would infringe on the rights of other parents who want their children to be safe.

The state had given Broward and Alachua counties until Tuesday to end their mask mandates. Broward’s students began school last week with a mask policy in place.

“We don’t believe that we have done anything inappropriate as it relates to the executive order and the rule of the Department of Education,” Rosalind Osgood, chairwoman of the Broward School Board, said Tuesday.

About 6 in 10 Americans say students and teachers should be required to wear face masks while in school, according to a poll conducted this month by The Associated Press-NORC Center for Public Affairs Research.

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Anderson reported from Tampa, Florida.

Copyright 2021 The Associated Press.