Florida judge rules governor’s executive order on mask mandates unlawful

Second Judicial Circuit Court of Florida Judge John Cooper made the ruling Friday that the governor’s executive order on mask mandates is unlawful.

The ruling is for the lawsuit against Gov. Ron DeSantis’ ban on mask mandates in schools. Click here to see a copy of the lawsuit.

Three of the six counts were granted, with one of them being thrown out.

The plaintiffs and defendants have been instructed to work together to craft a written order to submit to the court, which the judge will sign off on before the ruling takes effect.

Cooper said the governor’s executive order violates the Parents’ Bill of Rights. He noted the school districts imposing mandatory mask mandates doesn’t violate the Florida Parents’ Bill of Rights. He said this is the main point in his ruling.

“(The Florida Parents’ Bill of Rights) doesn’t ban mask mandates at all,” Cooper said. “The Parents’ Bill of Rights expressly gives governmental entities, school boards are governmental entities, to adopt policies concerning healthcare and education of children in school, that expressly, they have the right to do that even if those policies affect the parents’ rights to make decisions in those areas. What that law says, this is how I interpret it, is normally you can’t interfere with the rights of a parent’s direct schooling and education, unless there is a reasonable basis to do so.”

When handing down the ruling, he decided to not impose injunctions against the governor, saying because of the way the government worked, he believed he would follow the courts and wanted DeSantis to be able to do his job fully. All other defendants had injunctions placed upon them.

An injunction was granted was to the defendants, besides DeSantis, to prohibit them from creating a blanket ban against mask mandates in schools. Agencies are barred from enforcing the order.

Cooper said it will be up to school boards to show reasonable proof as to why there is an option for no parental opt-outs if the school board’s mask mandate is challenged in court.

Cooper also said the governor “overstepped his authority” when issuing that executive order.

The judge said the evidence for his decision comes from the universal evidence from the Centers for Disease Control and Prevention showing the importance of masking. He says the scientific evidence concludes that face mask policies that follow CDC guidance are “reasonable and consistent” with the best guidance the country has at this time. He also says the fact that Florida already uses CDC guidance in other existing statutes proves the governor disagreeing with scientific findings of the CDC is unfounded.

The judge also said that because of the separation of powers, school board mandates can only be challenged in court, and not based on inclinations or feelings from the executive or judicial branches.

The ruling will go into effect when a formal order is written. The judge ordered the plaintiffs and defendants to work together to craft a written order, which the judge will sign off on before the ruling goes into effect. This process is expected to be complete Tuesday or Wednesday at the earliest.

Gov. DeSantis’ office says they plan to appeal the judge’s ruling (see below). This process could take at least two months.

Responses to ruling

Gov. Ron DeSantis’ office responded to the judgment saying:

“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. 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 parents’ rights in Florida, and will immediately appeal the ruling to the First District Court of Appeals, where we are confidents we will prevail on the merits of the case.”

Here is Palm Beach County School Board Vice Chair Karen Brill’s response to Gov. DeSantis’ office’s statement:

“I’m disappointed because I don’t look at this as decisions of politicians. I don’t look at this as a person having to do with any political party. What I look at this as is doing what’s right for our children and our staff and unfortunately he’s viewing this as politics, but it’s not. I’m not looking at politics, I’m looking at doing the right thing and my last thought is that I do hope that the parents who have opted for their children not to follow our mask mandate, I’m hoping after this ruling that they will change their minds because children not being in school, children not being in their classrooms, that’s harming them and so for that small minority that do still want to not allow their children to wear a mask, I hope they realize that the judge’s ruling was on our side.”

The Florida Department of Education released a statement, saying:

“We are immensely disappointed that the ruling issued today by the Second Judicial Circuit discards the rule of law. This decision conflicts with basic and established rights of parents to make private health care and education decisions for children.

“We will continue to fight to make sure every child has access to education. We are committed to the fundamental rights of parents and will push forward on appeal to ensure that this foundation of democracy is upheld.”

School District of Palm Beach County Superintendent Mike Burke:

“Today’s decision by Leon County Circuit Judge John Cooper is encouraging for Districts, such as Palm Beach County, which have adopted protocols designed to mitigate the transmission of COVID-19 in our schools, particularly at a time when the number of infected students is in the thousands, just three weeks into the school year. This ruling seems to support the notion that boards have constitutional authority to ensure the health, safety, and welfare of students and, for now, appears to prevent the Governor from being able to impose bans on facial covering mandates.”

School District of Palm Beach County Board Chairman Frank Barbieri:

“Today, Judge Cooper granted a permanent injunction, enjoining the Florida Department of Education, the Commissioner, and the State Board from enforcing rules that prohibit mask mandates in schools without parental opt-outs. The injunction would prevent the State Board, the Commissioner, and the Department of Education from taking actions against specific school districts that have imposed mask mandates that arguably violate the Executive Order or the Department of Health’s Emergency Rule on masks. The ruling appears to establish that individual boards have the authority to approve protocols based on the health and safety of students. This is a good day for public education and our kids in Palm Beach County.”

School District of Palm Beach County Board Vice-Chair Karen Brill:

“I’m very pleased with the results.

“I’m hoping that we can set aside the politics and all start working together. I received a lot of phone calls this past week from parents of children in charter schools who are not adopting a mask mandate and asking what they can do and I’m hoping that some of those charter schools here, now that they will not be violating the governor by mandating masks, that they, too will do that for their schools and for their employees and their students.”

Brill also says the judge’s ruling on Friday does not change her stance that the mask mandate already imposed in the School District of Palm Beach County was the correct step to take.

“We have to keep our children safe. There is no way that we are going to eradicate this virus or at least lessen the spread unless people get vaccinated and people wear masks and in schools where people are young, they’re in close contact and they’re too young to get vaccinated, we have to do something so I really tried not to think about what we did as an affront to the governor. I really pushed that out of my mind but there is relief.”

Palm Beach County parent, one of the plaintiffs in the lawsuit:

“I’m elated. I am elated by this ruling because the judge clearly went on the side of science, medicine and our children and democracy.”

The lawsuit

The plaintiffs, a dozen parents across the state, argue the Florida Constitution guarantees a safe learning environment for students. They are asking the judge to file an injunction against Gov. Ron DeSantis’ executive order banning school districts from imposing mask mandates.

Lesley Abravanel of Boca Raton and her husband are among the plaintiffs. They have two children who attend elementary school in Boca Raton.

“It’s disgraceful,” Abravanel said. “The school board is elected to protect our children. The governor is elected to protect all citizens of his state. It’s insane that we have to go sue the governor to protect our children when his job is to protect all children. We are looking out for our child and every child. No one wants a child to die. So that’s where we are with this.”

Before the final decision, Abravanel said she was eagerly awaiting it.

“It’s really as simple as science and medicine versus lies and insanity. Our trial is to basically say, ‘We parents don’t want misinformation to dictate the health of our children,'” Abravanel said.

The defendants, DeSantis, Education Commissioner Richard Corcoran, the Florida Department of Education and the Florida Board of Education, argue the lawsuit can’t hold up in court because it could violate the state’s separation of powers doctrine and the Florida Parents’ Bill of Rights.

Both the defendants and plaintiffs gave their closing arguments on Thursday.

“At its heart, this is a case about a policy difference,” said Michael Abel, an attorney representing the defendants. “Plaintiffs want this court to rebalance state policy, and in doing so, overrule the parent choice rights. That’s the goal of that blizzard of data the plaintiffs put on your honor’s desk. They are asking you to second guess the political branches and implement a different policy.”

Crag Whisenhunt, who represents the plaintiffs, said, “There is no logical argument that can be made that a response to an emergency situation and in response to a pandemic, that we need to make it an option to not be safe. We routinely restrict individual rights to protect others in schools by doing so and that’s never been questioned or really challenged as something that’s invading principal rights. There’s a certain level of appreciation that if you’re in a public space, relying on public resources, that you don’t have perfect autonomy to do everything you wish to do.”

Responses to closing arguments

DeSantis and the Florida attorney general addressed the lawsuit during a news conference on Thursday.

“Think about it, in terms of health, there are parents of kids who have not done well wearing the masks all day,” DeSantis said. “Obviously, kids with special needs have not done well, kids with autism and then just kids who don’t learn as well, particularly the little kids, when they’re not able to see some of the facial cues and not being able to do some of that and so it has taken a toll on kids throughout Florida.”

DeSantis also said that some scientific studies prove that masks make a significant difference in protecting children in classrooms. The Centers for Disease Control and Prevention says the opposite is true.

“I want to thank this governor who has said, ‘We have to protect the parents’ ability to choose for their children,'” Moody said. “Under many circumstances, many of these children have faced different health circumstances and parents should be able to make that choice. All of us are concerned with the health and safety of Floridians, of Americans, we are going to keep doing everything in our power to make sure we are protecting our citizens. That does not give anyone the right to disregard the rule of law. The governor is correct, if there is an argument with a law, it should be challenged in court, otherwise, you cannot flagrantly disregard statutes and orders in violation of law, it’s pretty clear. It’s a tenant of what our country is built on.”