The fate of Gov. Ron DeSantis’ school-masks policy is now in the hands of a trial judge who conceded Thursday that he’s struggling to reconcile the competing arguments in a lawsuit brought by parents who oppose the policy.
“This issue presents a lot of sophisticated legal issues,” Leon County Circuit Judge John Cooper told attorneys in the case as they completed their final arguments.
“I have notebooks galore. I’ve read your exhibits. I took a lot of notes — I’m usually not a big notetaker but I took a lot more notes than I usually do in this case. And I’m still wrestling with pretty much all the issues,” Cooper said.
“I think it’s just going to take me maybe sitting down with a pen and legal pad and starting to write to, you know, formulate my thinking on this issue.”
Cooper said he would declare his decision from the bench — or virtual bench; the trial is playing out on Zoom — on Friday morning.
During four days of argument and testimony, attorneys for a group of parents with kids in public schools have argued that DeSantis exceeded his authority in issuing a late July executive order directing the Florida Department of Health to write a rule requiring school districts to abide by parents’ vetoes of any mask mandates intended to protect kids against COVID-19.
The governor, they argued, violated the Florida Constitution’s requirement to provide a safe learning environment, and the constitutional authority of school districts to control conditions inside classrooms.
DeSantis’ policy, plaintiffs’ attorney Craig Wisenhunt argued Thursday morning, “was arrived at absurdly, arbitrarily, and capriciously with no logical, reliable furtherance of any interest in the state of Florida, and has caused harm to students, teachers, staffs, and families.”
Attorneys representing the DeSantis administration insist that the Parents’ Bill of Rights does give that veto to parents, and that for the courts to interfere would violate the separation of powers.
“In enacting the Parents’ Bill of Rights, the Legislature codified certain rights of parents; here, the longstanding, constitutional, fundamental right to direct the upbringing, education, health care, and mental health of their minor children,” defense counsel Michael Abel said.
“The state of Florida, as a matter of policy, inherently trusts parents with the responsibility to make the best and most informed decisions for their minor children,” he said.
“Based on all of the information presented, the governor had to resolve, as best as possible, a highly complex policy decision. And the governor did just that. Under his constitutional authority, the governor issued the executive order at issue before the court here,” Abel said.
One problem for the parents’ case is that their lawyers — for tactical reasons, they’ve said — did not name the Florida Department of Health in their complaint, even though it issued the rule enshrining the DeSantis policy. Lawyers for the administration have argued that, procedurally, the agency wouldn’t be subject to any injunction Cooper might issue because it never got a chance to defend its rule in court.
Wisenhunt insisted Thursday that the real targets of the complaint are the governor’s executive order and the Florida Department of Education, which has threatened to withhold state money from school districts that flout the policy; 10 have thus far by requiring doctors’ notes to justify mask opt outs. The parents want Cooper to block that punishment.
“I think the court can restrict enforcement of the Department of Health rule by enjoining the Department of Education’s actions,” Wisenhunt said. “The Department of Education cannot enforce the provision of the Department of Health rule that relied upon the executive order.”
The state’s case may turn on the credibility of Jay Bhattacharya, a key adviser to DeSantis on masks who served as the administration’s central witness at trial. He testified that there aren’t any rigorous studies demonstrating their effectiveness in protecting children and indeed can harm their physical and developmental health.
Bhattacharya holds a medical degree but is employed by Stanford University as a researcher in the economics of health care. Since the pandemic hit, he has emerged as one of a cadre of experts challenging most of the rest of experts in epidemiology who insist that masks can protect children against the coronavirus.
The U.S. Centers and Disease Control and Prevention recommends masks, as does the American Academy of Pediatrics. So did a parade of medical witnesses presented by the parents’ attorneys.
As evidence that the governor carefully considered his decision, Abel pointed to a video replayed during the trial of a roundtable the governor held with Bhattacharya plus a pediatrician, a child psychiatrist, an infectious disease expert, a schoolteacher, a principal, and a teenaged student to debate masks. It was one of four such gatherings.
The defense introduced the video because “it shows in plain view the policymaking process underlying the executive order,” Abel said — “a peek into the window.”
“It looked to me, Mr. Abel, like the policy had been decided before that roundtable and that that was confirmatory,” Judge Cooper interjected.
“I don’t believe that is what the video showed.” Abel replied.
“The governor investigated the issue and took multiple considerations and viewpoints into account. In addition, among other things, the governor consulted closely with Dr. Bhattacharya, one of the leading epidemiology researchers in the world, who has studied and written extensively on COVID-19.”
“Dr. Bhattacharya has testified at the United States Senate, in the United States House of Representatives, he briefs other state legislatures, he has published extensively,” Abel said.
“The governor had made up his mind about masks,” Wisenhunt insisted. “When he surrounded himself with people who either agreed with him or said what he wanted them to, he paraded them through a roundtable discussion in an effort to appear reasonable.”
But Wisenhunt argued that Bhattacharya mischaracterized studies as refuting masks’ efficacy when they did not say that — including a Brown University study that the governor cited in his executive order notwithstanding it’s author’s position that the paper doesn’t undermine the need to wear them.
“I think the governor is allowed to be wrong, but he’s not allowed to invade the authority of other branches of government or other levels of government without having explicit authority to do so,” Wisenhunt said.
“He can say the sky is purple; he can believe that. And he can surround himself with other people that will tell him the sky is purple all day long.”
But the courts are obliged to give that credence, Wisenhunt said.
(Cooper noted at this point that he, himself, is color blind and mistakes purple from blue from time to time.)
Cooper asked Abel whether the case requires him to enforce the Parents’ Bill of Rights.
“It seems to me that the executive order and the emergency rule both mention enforcing the Bill of Rights. As I understand what I’ve heard this week, is that the parents’ rights are codified in that law. I’ve heard ‘Bill of Rights’ every day,” Cooper said.
“Of course, yes. The court should absolutely enforce the Parents’ Bill of Rights with respect to the parent choice involving the health care decisions for their children,” Abel replied.
Wisenhunt countered that the statute allows districts to overrule parents if they find it is “reasonable and necessary to achieve a compelling state interest.”
“It does not appear on the face of the statute itself that matters of public health are contemplated to be overridden by parental choice. That wasn’t something the Legislature included,” he said. “If that was something they wanted to have slipped in there, it absolutely would have been put in there.”
Cooper asked Wisenhunt whether he could point to precedents in support of his case.
“It turns out it’s a fairly novel circumstance, so I was unable to find you a case,” he told the judge.
“I don’t think there’s any case law on this; somebody would have sent me a case if there was,” Cooper agreed.
Lawyers for the administration can point to one precedent: a 1st District Court of Appeal ruling last year upholding the governor’s authority to reopen the schools last year against a lawsuit by the Florida Education Association.
“The 1st DCA admonished that the courts should not wade into this political thicket — that’s what the court called it,” Abel said.
Wisenhunt argued this case isn’t like that one. In the first case, the union argued argued there was no way to open schools safely. The appeal court concluded that decision fell under the governor’s authority.
Now, he continued, no one argues whether the schools can operate safely. “But you cannot get to that point if you restrict school boards’ ability to make the decisions necessary to make them safe,” Wisenhunt said.
Society elevates public health policy all the time, Wisenhunt said, including bans on peanut products in schools to protect kids with allergies.
“This is not a case about instituting a statewide mask mandate, or ordering school districts to impose mask mandates, or mask mandates that are devoid of medical opt outs. It’s about the governor’s overreach into the responsibilities of school boards,” he said.
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