A key part of Tuesday’s Flagler County School Board workshop discussion about potential changes to covid-safety rules, which currently do not include a mask requirement, was Board Chairman Trevor Tucker’s question to Board Attorney Kristy Gavin to explain where boards stood legally regarding amndates.
Leon County Circuit Judge John C. Cooper last week had ruled that Gov. Ron DeSantis’s order banning mask mandates in schools was illegal. But the ruling was automatically stayed when it was appealed, Gavin explained. She also noted that the stay itself was in contention.
This morning, Cooper lifted the stay at the stay, making mandatory mask mandates again legal–until the next step in the legal process. The lifting of the stay may itself be appealed, as the original decision awaits its own hearing.
“The test isn’t whether his policy is the best policy in the Safe Schools analysis,” Cooper said, referring to DeSantis. “The test is, is there any rational basis to support his policy.” He found there was none.
“It should be not a usual thing, it should be not a normal thing. But we’re not in normal times. We’re in a pandemic,” Cooper said at the end of the hearing. “We have children who can’t be protected by vaccination. And the CDC and the American Pediatrics Association, and every single witness who testified, who is a practicing medical doctor in this case, said that children are at risk, and they provide at least some protection by masking. So, I hereby set aside the stay.”
A dozen school districts have defied the DeSantis order and imposed mandatory mask requirements providing no opt-out except with a doctor’s note. Several districts have non-binding mask mandates, allowing parents to opt out at their own discretion. In Flagler, School Board members Colleen Conklin and Cheryl Massaro have been urging the adoption of a mask mandate since mid-August but failed to win a third vote at an Aug. 17 meeting, with Trevor Tucker, Jill Woolbright and Janet McDonald opposed. On Tuesday, Woolbright said it would be illegal to enact a mandate as long as the governor’s order is in effect. But with Dr. Stephen Bickel, the medical director at the Flagler Health Department, at the table, Woolbright also cast doubt on the effectiveness of masks in the face of what she described as conflicting evidence.
Bickel repeatedly spoke of masks as one among many effective measures to slow the spread of Covid-19. He disagrees that the science conflicts: only outlying findings do, while the overwhelming consensus among medical and public health officials, backed up by a growing body of studies, points to effectiveness in masking. Cooper’s statements both at trial and in two hearings since, including today’s, echoed those conclusions.
“This case has generated a lot of heat, and a lot of light. But the bottom line is this cases is about enforcing the laws the legislature passed,” Cooper said. But even Cooper could see the steps ahead. “I believe my role is completed. At this point it is in the hands of the First District Court of Appeal. And they will do their job as they always do, they’ll thoroughly consider the arguments of all parties, and they’ll make a decision. Then it may or may not end up at the Florida Supreme Court. If it does, then they will likewise, if they accept jurisdiction, do the same thing as the first district did a review all the arguments make a determination.”
Earlier in the hearing, he’d noted his rationale: “This isn’t whether I agree with masking or not. The issue is, have I decided that the governor has to comply with the laws passed by the Florida Legislature. I say, everybody has to do that. If the first district agrees with me, they’ll tell me that. All I said in the injunction is, you can’t take an action which violates the Florida parents Bill of Rights.”
Appearing in Palm Coast to open a federally-funded monoclonal therapy treatment center, Gov. Ron DeSantis said he anticipated his order would prevail in the end. “What we found is,” DeSantis said, “in the trial courts in Tallahassee, state and federal, we typically lose if there’s a political component to it, but then in the appeals court we almost always win. And so I don’t think that he’s going to lift the stay, the judge will lift the stay. But if it is lifted, I am confident that that will be reinstated, you know, at the 11th circuit.”