Last Updated: 2:05 p.m.
Judge John Cooper of the 2nd Judicial Circuit Court of Florida ruled today that Gov. Ron DeSantis had no legal authority under the recently-enacted Parental Bill of Rights to prohibit local school boards from adopting mask mandates that did not include opt-out provisions. The judge found DeSantis’s order “capricious” and not based in evidence, but rather based on an incomplete reading of the Bill of Rights.
“A school district, adopting a policy, such as a mask mandate is acting within its discretion. It has been given this discretion by the Florida Legislature and the Parents Bill of Rights,” the judge ruled. Those mask mandates do not have to include parental opt-outs, the judge ruled.
Cooper also granted an injunction against all those tasked with enforcing the governor’s order–except for the governor. The distinction was not made explicitly clear, but appeared to be an attempt by the judge to be consistent with his interpretation of the separation of powers, an interpretation that played a substantial role in his analysis today. “I am not granting an injunction against the governor of Florida,” he said. “I am granting an injunction against the other defendants who are the ones who are primarily involved in enforcement actions.”
He told the lawyers he had no doubt the ruling would be appealed, and in fact invited that appeal, saying it would not offend him. “It is possible all of you disagree with me on some portions of the ruling,” he said, after ruling against the plaintiffs on several counts, just as he had ruled against DeSantis on some. But the central issue was a victory for school boards that have defied the governor’s order and imposed mask mandates. And Cooper’s wording at times was a sharp rebuke to DeSantis’s more arbitrary and ideological foundation for his executive order than for the evidence backing it.
“The evidence clearly demonstrates that the recommendation of the CDC for universal masking of students, teachers and staff represents the overwhelming consensus of scientists, medical doctors and medical organizations,” Cooper said, referring to the Centers for Disease Control. “The evidence submitted by the defendant I think reflects a minority, perhaps even a small minority, of medical and scientific opinion. That’s the reason I can’t say there’s no rational basis for the governor’s policy under a different legal theory in a different county. You can agree or disagree, both sides we end up appealing this order.”
Delivering his ruling in a long, at times discursive zoom session in which he alternated between reading from notes and adding commentary and examples, Cooper spoke in an even tone, grounding his lengthy verbal ruling in precedent, when he could find it–there is none regarding the Parental Bill of Rights, which is merely a few weeks old–and on a close, textual reading of the law, including the Bill of Rights, in the absence of precedent.
The ruling was issued at the end of a non-jury trial after a group of parents sued over DeSantis’s July 30 order forbidding mask mandates and a state Department of Health emergency order that specified any mandate would have to have an opt-out. DeSantis, State Education Commissioner Richard Corcoran, the State Board of Education and the state Department of Education were all named as defendants.
Parents argued through their attorney, Craig Whisenhunt, that DeSantis’s order was an overreach into local school boards’ authority based on local necessities. Part of the lawsuit charged that the state was violating home rule. The judge rejected that argument, but agreed that the order was not constitutionally defensible. Attorney Michael Abel made the state’s case, portraying the issue as a matter of choice.
Notably, however, Scott Rivkees, the state surgeon general, did not testify on behalf of the state. Rather, the state for its scientific arguments relied on Stanford University professor Jay Bhattacharya, a signatory to the so-called Great Barrington Declaration, a controversial October 2020 statement that calls for achieving herd immunity among younger people through infections: “The most compassionate approach that balances the risks and benefits of reaching herd immunity, is to allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while better protecting those who are at highest risk. We call this Focused Protection.” The statement reflects the DeSantis approach across Florida.
The judge did not give it much credence.
“I have heard significant evidence concerning the medical and scientific basis for facemask policies and I conclude that this evidence demonstrates that face mask policies that follow CDC guidance are at this point in time, reasonable and consistent with the best scientific and medical opinion and guidance in the country,” Cooper said. “That’s not to say that they might be enforced for too long, they might be not narrowly structured or for some other reason.” But he said part of the evidence in the trial was the rational basis for masking–rationales that may change based on each county’s realities and on the progression of the disease.
DeSantis’s and his administration’s actions “do not pass constitutional muster because they seek to deprive the school boards, in advance, and without the school boards’ right to show the reasonableness of the policy,” the judge ruled. “The law does not require that the school boards get permission for a policy in advance, the law requires only that if a policy is challenged, it has a burden to prove its validity, under the guidelines of the statute.” Cooper accordingly repeatedly returned to the complete wording of the Parental Bill of Rights, which he intimated had been cherry-picked by the DeSantis order. “I am enforcing the bill passed by the legislature and requiring that anyone who uses that Bill has to follow all provisions, not part of the provisions,” he ruled.
The judge was equally stern about the inadmissibility of the state punishing local school boards, as the state Board of Education has said it would, for defying orders on masks. “The law of Florida does not permit the defendants to punish school boards for adopting a face mask mandate,” Cooper said. “if the school boards have been denied their due process rights under the Parents Bill of Rights to show that their policy is reasonable and meets the requirements of the law. If the defendants act to deny the school districts’ due process rights provided by the wall as appears to be the case here, in at least the Broward and Alachua County case, and if they strictly enforce any other rule, regulation, policy, executive order, whatever basis you want to call it, then they are acting without authority. And they are refusing to comply with the provisions the law sets forth by the legislature. Remember, the legislature has its own protection by the separation of powers. They pass laws. Unless that law is unconstitutional, it’s not been challenged by either side, I can’t tell the Legislature–I’m just not going to follow that law, I don’t agree with it. I can’t do that. Governor can’t do that. Department of Education, State Board of Education, they can’t do that.” He gave a speed-limit analogy, and how a driver must comply with changing speed limits regardless. “I don’t have authority to not obey laws and regulations that are lawfully passed, simply because I don’t agree with them. That’s the underpinning of our entire judicial system.”
After conceding that the Bill of Rights gave parents ample authority to direct their child’s education and health decisions, the bill could not be interpreted to give the governor an authority he does not have. “That’s what the Bill of Rights means: it does not authorize the governor, the Department of Education State Board of Education, to say the schools: you cannot adopt a blanket Ban on mask policy unless it has a parental opt out,” the judge ruled. “It does not say that. What it does say is that if you do that, it has to be reasonable support a state purpose as the narrowly drawn, and not otherwise accomplished by some other means.”
He added, in one of his asides: “Yes parents’ rights are very important. I’m a parent. Parents’ rights are very important. But they’re not without some reasonable limitation depending upon safety and reasonableness and compelling state needs usually regarding health care or the condition of the child… There’s no prohibition in the parents Bill of Rights to adopting such a policy, none, as long as that policy is reasonable, and otherwise complies with the provisions I’ve just outlined in the parents Bill of Rights.”
The alternative, Cooper said, would be endless litigation and an abrogation of local school board authority. “The Bill of Rights permits school districts to enact, including but not limited to, mask mandates, no parent opt-out, policies that relate to health care and education. The school districts are not required to get permission in advance to pass these policies. To do otherwise would submit local schools to endless court suits and or administrative proceedings, hearings on innumerable local policy decisions that would just made practically running a school impossible.”
The ruling is effective immediately. The judge adjourned the hearing at 12:35 p.m.