Fight Over School Mask Mandates in Florida Ramps Up

By Nanette Holt
Nanette Holt
Nanette Holt
November 2, 2021 Updated: November 2, 2021

An appeals court in Tallahassee, Florida has directed lower circuit courts in two Florida counties to ensure an “immediate hearing and a prompt decision” about whether parents can opt their children out of wearing masks at school.

The Friday decision by the First District Court of Appeal was in response to a lawsuit filed by parents frustrated by school mask policies. They say school officials aren’t following a state rule that gives them sole discretion to decide whether their children should wear masks at school.

But the school districts in those counties have filed a lawsuit, too, teaming up with four other counties to dispute the validity of the state rule.

Meanwhile, the State of Florida has been financially penalizing two school districts that ignore the rule. And on Monday, Florida’s Education Commissioner Richard Corcoran tweeted, “In light of the First DCA’s opinion declaring the Duval and Alachua County school districts’ mask mandates in violation of state law, I’m officially putting the districts on notice: immediately come into compliance or face the consequences.”

Florida has already withheld more than $600,000 from the Broward and Alachua school districts over their defiance of the state’s restriction on school mask mandates. That amount includes the entirety of the federal grants the two districts applied for to make up for the money being docked for their violations. The Biden administration had promised the funds to districts that defy state bans on school mask mandate.

Now, Florida Gov. Ron DeSantis (R) has called for a five-day special session of the state legislature before Thanksgiving with the aim of making laws that will put the issues of school mask and vaccine mandates to rest.

What transpires on mandates in Florida could have implications nationwide, DeSantis has said.

Attorneys involved in cases fighting mask and vaccine mandates are working with lawyers across the country in a loose alliance formed by Gainesville attorney Jeff Childers, who filed the lawsuit against the Alachua and Duval school districts. The hope of the 60-plus lawyers in the group is to develop and share “template” lawsuits that can be used by attorneys nationwide.

For now, the school mask battle that rages in Florida involves a shrinking number of the state’s 67 counties. One county school district backed down and allowed mask-wearing to be at parents’ discretion as soon as sanctions were threatened.

And on Friday, Duval County officials, though still embroiled in lawsuits over the issue, changed their mask policy, because, they said, of dropping numbers of COVID-19 infections in the state. Florida has the lowest infection rate in the continental U.S., the governor’s office announced last week.

In the case of the lawsuit against the Alachua and Duval school districts, at question is not whether wearing masks makes students and teachers safer, said Judge Robert Long.

In his opinion, with two other judges concurring, Long wrote that the “case is not a dispute about the wisest public policy to the virus…The foundational question before us is whether [school officials] are required to comply with the laws that govern their authority.”

School officials in Alachua and Duval counties “concede their policies do not comply with the rule. They do not argue the rule is unclear. They do not argue that the rule does not apply to them,” Long said. “They do not argue they are confused by the rule. They do not argue they have attempted to comply with the rule. Instead, they assert that they are challenging the rule in an administrative proceeding. And they explain that, rather than follow Florida law, they are following their preferred policy recommendations…”

The judge added that school officials “have been remarkably open in their defiance… In short, they acknowledge they are defying the law, but argue that the courts should refuse to compel their compliance.”

Long’s ruling was in response to a petition filed Oct. 2 by parents frustrated by mask mandates in the Alachua and Duval county school districts. The parents filed an emergency petition for a writ of mandamus, a legal move that can force an official or entity to stop acting unlawfully.

The parents’ petition asked the court to require the school boards and superintendents to follow the Florida Department of Health emergency rule that says parents or legal guardians should be able to opt students out of school-mask requirements.

The petition also asked for officials to follow another part of the rule allowing parents to send healthy, non-symptomatic children to school at their own discretion, rather than be required to keep them quarantined after being exposed to the virus.

But officials with the two school districts say the state’s Department of Health didn’t have the authority to make that rule giving parents those choices.

So Alachua and Duval counties have teamed up with four other county school boards, filing a lawsuit against the state agency. The school districts in Miami-Dade, Broward, Leon, and Orange counties joined Alachua and Duval to challenge the state rule through the Florida Department of Administrative Hearings. The six school districts have about 987,000 students and more than 96,000 employees combined. The lawsuit alleges that the state’s rule to give parents authority over mask-wearing and quarantining of their children is “invalid.”

The lawsuit says the state’s Department of Health has limited rule-making authority to control communicable diseases, but the rule in question is “actually focused not on controlling COVID-19, but rather on protecting parental rights. The DOH does not have rule-making authority in this area, and thus exceeded its rule-making authority.”

For now, all Alachua County elementary and middle-school students must wear masks, unless a “qualified physician” signs a medical exemption request. Parents have complained that physicians are reluctant to sign the forms.

In Alachua, parents of high school students now may choose to opt their children out of mandated mask-wearing.

Duval County Public Schools officials changed their district policy on mask-wearing the same day Long sent out his order. Duval officials issued the statement Friday saying they had learned that day “that the community transmission rate for COVID-19 has declined from ‘high’ on the Centers for Disease Control (CDC) scale to ‘moderate.’”

As a result, starting Monday, “parents and guardians—at their sole discretion—can opt their children out of the face-covering requirement without any documentation. They only need to complete the online opt-out form…”

Perceiving the judge’s order to the lower courts as a victory, Childers sent a demand letter to the Alachua County School Board. He gave district officials until 5 p.m. on Nov. 2, to rescind the mask mandate. If that happened, the petitioners would file a suggestion of mootness in the case, he said, which would resolve the matter.

“That attorney doesn’t have any authority to tell us what we must do,” Alachua County Public Schools spokeswoman Jackie Johnson said. “Right now, we don’t have an order from the court.”

Nanette Holt