Florida judge upholds school mask mandates, says DeSantis lacked authority to ban them

AP Photo/Wilfredo Lee

Whichever side you’re on policy-wise, it’s hard to grok how a governor wouldn’t have authority to override local school boards on a matter like this. It boils down to two pieces of language, one constitutional, the other statutory. (I think. This was a bench ruling, without a written opinion.) From the Florida Constitution:

The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.

What does “safe” mean during a pandemic? The other language comes from the Florida Parents’ Bill of Rights, which passed a few months ago and was signed into law by DeSantis:

1014.03 Infringement of parental rights.—The state, any of its political subdivisions, any other governmental entity, or any other institution may not infringe on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health of his or her minor child without demonstrating that such action is reasonable and necessary to achieve a compelling state interest and that such action is narrowly tailored and is not otherwise served by a less restrictive means.

Parents get to direct the health care of their own children … unless the state can show there’s a compelling interest in overriding them and that its actions are reasonable and necessary. Should the court have deferred to DeSantis, as Florida’s chief executive, in his judgment that school mask mandates are not, in fact, reasonable and necessary to contain COVID in light of the evidence that masks don’t actually limit infection in schools?

Whether it should have or not, it didn’t:

The judge, John Cooper, ended up barring the state board of education from denying funding to districts that flouted DeSantis’s ban on mandates. That was the culmination of four days of trial in which Cooper tried to suss out whether mandates were “reasonable and necessary” under the circumstances. The state’s attorneys argued that the evidence supporting mask mandates in schools is inconclusive at best, which is true, but it’s also true that American scientific experts overwhelmingly support school mandates, including and especially the CDC. Cooper pointed to other Florida state policies that cite CDC guidance as evidence that the CDC’s recommendations are typically thought of as reasonable.

It became a battle of the experts at trial, with the pro-mask consensus weighing on Cooper. For the school districts:

“I currently have a child in kindergarten and one in second grade, and they both wear masks to school,” said pediatrician Dr. Grace Huute…

Dr. Tony Kriseman with John Hopkins Children’s Hospital testified masks are one of the effective tools.

“There was a difference with ventilation and there was a difference with masking. And the ultimate conclusion is that they are both very effective measures that should be introduced in a layered fashion,” said Dr. Kriseman.

I’d like to see the data that they’re “very effective” in classroom settings. The available evidence suggests “slightly effective” is more accurate. As for DeSantis’s side:

One of the governor’s witnesses, Jay Bhattacharya, a professor at Stanford University School of Medicine in California, testified that face masks aren’t effective at preventing the spread of the virus and that making children wear them can be child abuse in some circumstances.

“Do you know of any child that has died as the result of wearing a mask?” asked plaintiffs’ attorney Charles Gallagher.

“I don’t,” Bhattacharya said.

Apparently Cooper got into the weeds of some of the studies cited by DeSantis’s lawyers, “noting they had selectively quoted from one study to ignore aspects of it that supported mask-wearing and that the executive order against school mask mandates also was ‘incorrect’ by misinterpreting a study that actually recommended universal mask-wearing.” He also pointed out that studies conducted before the emergence of a hyper-contagious variant like Delta may no longer hold. “We had a different, less infectious virus than we had last year,” Cooper said of DeSantis’s data, adding, “What is appropriate for one county, may not be appropriate for another county.”

Here’s the crux of his argument and the counter to DeSantis’s point that parents rather than school boards should decide. If it’s true that masks in class meaningfully reduce transmission, as many experts seem to believe, then logically you can’t have a patchwork in which some kids wear masks and others don’t as individual parents see fit. The masked child may be exposed to risk by the unmasked one, just as the sober driver may be exposed to risk by the drunk:

What now for DeSantis? He’ll appeal, obviously, and take his chances with Florida’s more conservative appellate courts. But he and the Florida legislature could amend the Parents’ Bill of Rights to limit school districts’ ability to override parental choices on “reasonable and necessary” grounds. Or, if they’re prepared to go to that trouble, they might as well just ban mask mandates in schools straightforwardedly. Then courts would need to decide whether the state constitution’s promise of a “safe” public-school education is violated by a law that lets infected kids go barefaced.

What I still don’t understand, though, is how the school districts became “the state” for purposes of the Parents’ Bill of Rights in this lawsuit. DeSantis is the chief executive. He should logically be representing “the state” here. Why wasn’t this a suit by pro-mask parents who support mandates against DeSantis for failing to guarantee their kids a “safe” education per his constitutional duties? It’s unclear to me.

I’ll leave you with this.