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.
Mary Koonce says
Now Flagler let’s save our kids.
I didn’t realize we were losing kids.
Do you realize what Planet you are on or is it you being you
Karen Curry says
@Steve… I think Mark is Mark being Mark- probably a maskhole from planet Uranus.
Only Me says
Thank you Judge Cooper for your wise intelligent decision for the safety of the children in Florida that are dying because DeSantis doesn’t seem to care about the health of the people in Florida. Your decisions was a great relief to many.
Deathsantis slap down! I fully support local school districts making the decision based on community conditions and science based health and safety information as to whether masks will be required or not. I hope the appellate courts go even further and end this insane nonsense forever! Is even one student, staff, or family member death worth it? The answer is no, not when it is totally preventable. These anti-mask, anti-vaxers are killing thousands and thousands of people. And this state is the epi-center of it all thanks to our off the rail sad excuse for a governor. Thank you Judge Cooper for enabling school districts to save lives.
Karen Curry says
YES! The voices of reason were heard loud and clear! Now the parents who decided for whatever perverse reason that masking was not appropriate for their child, yet demanded in person schooling can put up or shut up-take your little superspreaders out of the public school system & enroll them somewhere where they won’t be spreading the parents and Delta’s toxicity.
John stove says
And just like his fearlesss leader (Trump),….DeathSantis finds himself on the wrong side of science (again), enacting edicts that don’t stand in law (again) and on the wrong side of history (again).
DeathSantis will always be remembered as the moronic imbecile that he is.
Must be something in the Republican Party kool aid that they all drink (Trump, DeathSantis, Lowe, Barbossa, McDonald ) etc etc etc
Hmm….now will the school board hide behind the, “but…but…but….I’m a rule follower and our government ordered us to do something that I agree with and besides… the only people who are dying are the fat ones…here take these vitamins and all will be fine.” They all have blood on their hands.
What the hell kinda comment is that (only the fat ones) I take that to be very Offensive. It was a stupid thing to say
Karen Curry says
They weren’t intentionally fat shaming-when the pandemic started the antimaskers/DENIERS pushed the bs that only the old, infirm & obese could fall victim to COVID-19. Now the antimaskers/antivaxers/DENIERS, healthy younger people & children are being infected & dying at an alarming rate by the DELTA variant. Still the COVIDIOTS believe memes on facebook & intentional misinformation and myths from Fox, Qanon & the other right wing nut jobs. Too bad kids & those doing the right thing by getting vaccinated, wearing masks, social distancing & staying away from crowds to protect themselves and others are unwilling participants in COVIDIOTS DEATH WISHES.
That’s what Jill Woolbright said in her diatribe on why she won’t allow children to wear masks in school. Look up that school board meeting. Don’t shoot the messenger!
We can only hope that the 3 non-thinking School Board Members who voted against sciences and the law will reverse their moronic decision and will include masks as part of the school uniform. I wish for them to have an aha moment and see the light.
Again thank you to Mrs. Conklin and Massaro for putting the safety of children, supporting staff and teachers ahead of politics.
The School Board has to protect children and employees.
We waited in line for 3 hours to get tested after our child came home with Covid-19 after only 9 days in school. The child took its mask off on the school bus after being teased for being the only one masked.
Our business is closed as we are quarantined. No business no tax revenues, unemployment benefits collected, no shopping. How is that helping the economy? What a shame.
Karen Curry says
@Whatthehck- Wearing masks are MANDATORY on school buses for riders & drivers! They are mandatory on publicly or privately run school buses, trains, airplanes and subways. It’s on the CDC website.
Masks are not mandatory on Flagler County school buses.
Karen Curry says
The CDC begs to differ.
Karen Curry says
Why not? The CDC says they are mandatory for passengers, drivers, pilots and conductors on buses, planes & trains, whether the vehicle is publicly or privately owned!
Pillsbury doughboy rondon duhhsantis lol. What a disgrace.
Ronni The Doughboy says
Oh my gosh… THAT IS IT!!!! For the longest I’ve been trying to figure out who Ronni Boy reminded me of! It IS the Pillsbury Dough Boy!! But now I’m torn.. the real Dough boy is actually cute. I’ll never be able to look at him the same!! 🤣🤣
We can plea all day for our children’s safety from local leaders ,but, there are no heroes in Flagler County. The damage has been done, the heroes abandoned us in our time of need. We have been deserted by an form of honorable leadership, left to care for our sick and dying. It’s too late , anyone stepping up now is too late. There are no heroes in Flagler County. To the children of the County I am sorry for this truth. I hope covid is not effecting your health forever.
Ted Underhill says
Really Mark? If you want to hold court on the elected officials have at it. As far as heroes, I think you are quite disillusioned. The real heroes are the firefighters, officers and hospital staff staring down Covid every day trying to deal with the calamity that the elected representation has caused. Saying there are no heroes in Flagler County and that we have been abandoned is shear ignorance.
Look around my friend. Even your so called heroes are dying. Who will save them? Will no one do what’s necessary? All the heroes have moved on. No one is coming to save us now. It is up to us as individuals to hold those accountable for the deaths of our deputies, the deaths of our old and young. All this could have been prevented yet, THERE ARE NO HEROES IN FLAGLER COUNTY.
Justin Case says
What is your definition of a hero? How about the parents who told their kids to mask up? How about the kids who were/are brave enough to wear a mask when other kids tease them? How about the teachers who encourage kids to wear a mask, even though they weren’t required to? Not all anti maskers are Republican or conservative. I know many Liberals who are very anti mask. I am not afraid to say I voted for DeSantis, and I’m not afraid to say he screwed up on this one. Children who are brave enough to wear masks, while irrational “adults” are screaming at them to take them off are in my opinion, HEROES!!
You are quite right Mark. What is left of the local “leaders” in Flagler County are the zombies that drank too much of the trump/duhSantis koolaid.
It is up to us!
Mike Cocchiola says
There seem to be some vestiges of constitutionality. law and common sense left in Florida. This is a victory for all. But, the far-right Republican governor and legislature will surely come up with a response so they can continue their assault on public schools.
YES! Thank you Judge.
How will Flagler County school dept be able to mandate masks when the 3 people that were against it then will still be against it now? So that makes the judge’s ruling useless as far as Flagler is concerned. Also I didn’t see anyplace where masks had to be worn on the school bus. If the kids don’t have to wear masks on the bus, then wearing a mask in the classroom is useless because the kids have already been exposed for a long time in a tightly filled bus before they get to school.
Jane Gentile-Youd says
Kudos to a judge in Tallahassee, of all places, to have the courage to knock down this Harvard and Yale graduate who has turned into a very dangerous demagogue. I pray his political career will be over in 2022.
Thank you Judge Cooper for putting the health of our students and staff first!
Thank you is right !!!!!!! People are thinking it’s a joke my granddaughter has been sick two time since school started . Why are they sitting together eating together, playing together. There are no precautions being taken to protect our most valuable and precious lives.!!!!!!!very sad
Finally, some sanity in Florida. DeSantis’ action were all political instead of putting children and the greater society’s safety first.
‘…found that individual rights are limited by their impact on the rights of others.’
Public health concerns are paramount to other individual rights in a pandemic. It is something everyone understood until Trump and his acolytes hit on a scheme to gin votes for their side, but at what price?
Appeals for sanity and common sense have been largely fruitless with this idiot governor. All that’s left is the courts. Even conservative judges cannot help but stop stupid
Reason ruled the day! Deep breath. We all suspect that Desantis and company will be right back at it. They know they cherry picked the law to fit their agenda. And the waste of it all feels demoralizing and exploitive. Shame on them for wasting the court’s time. How dare any elected official demonstrate such contempt for all the their constituents?
“Public health concerns are paramount to other individual rights in a pandemic.” Nonsense, if this were true, then it would be federal law that everyone get the vaccine. As of today over 47% of the population has not been vaccinated, and I would bet that many of you hating on DeSantis, haven’t been vaccinated either.
Ray W. says
Somehow, I suspect Jake is struggling with his reasoning skills, on three different levels.
First, Jake focuses on the term “paramount”, but I suspect he did not look up its meaning before challenging its use in the context of a pandemic. Dictionary.com defines “paramount” as: 1. chief in importance; supreme; preeminent: 2. above others in rank or authority; superior in power or jurisdiction. By either of the two definitions, any two or more distinct rights can both be accepted as extraordinary in importance, with one being found to be more important than the other. Thus, Jake loses the nonsense argument before it even starts. It does make sense that two competing rights can be compared, with one considered more important than the other. Jake is 0-1.
Second, Jake argues that if public health concerns were deemed to be of paramount importance, there would be a federal statute or presidential executive order mandating vaccinations. The obvious flaw in this argument is that there is no constitutional mandate for passage of a statute or issuance of a presidential executive order to address issues that meet the social definition of being of paramount importance. One can easily argue that passing a balanced budget statute on the federal level is of paramount importance and, further, that it has been of paramount importance since Reagan began running up the federal deficit and debt, yet we have never passed a balanced budget statute. Jake is 0-2.
Jake does have a point about mandatory vaccinations being possible at some indefinite time, but not today. Jake misses the point entirely. Mausborn’s comment pertains to a judge’s ruling on the authority of our governor to issue an executive order derived from recently-enacted legislation to forbid school boards from adopting mask mandates. Thus, the question is whether mask mandates are paramount to other individual rights in a pandemic. Vaccination status was never at issue, which suggests that Jake is trying to change the subject to focus on a more explosive issue, i.e., mandatory vaccinations. Since Jake has already lost the paramount argument on two different levels, he loses this one, too. Jake is 0-3. Another classic example of a commenter being partially right and colossally wrong at the same time.
Whether a significant portion of DeSantis haters have been vaccinated is, I suppose, an argument that will never be researched. Thus, Jake will always be able to say whatever he types whenever he wants to type it without ever having to prove his point or ever being able to prove his point. Does this qualify as a draw? Or just a false flag!
If DeSantis has staked his political future on a philosophy of hoping that exposing young healthy Floridians to Covid-19, as prescribed by the Great Barrington Declaration, he is balancing the overall societal risks of the virus on the health of younger Floridians. Any effort to build herd immunity among those most able to fend off the health impacts of the virus, without exposing older more at-risk Floridians to the same virus, is belied by Judge Henderson’s tragic death at such a young age, which tragic death exposes the most extreme risk of the DeSantis gamble, at such great cost to Judge Henderson’s family and to the larger 7th Circuit community (I knew him from his earliest days as a prosecutor). All those who grieve after losing loved ones to the pandemic and all those who have not so lost but feel empathy for those who grieve for their losses may have a legitimate foundation for hatred for the gambling DeSantis. DeSantis could easily give voice to an effort to persuade Floridians to accept the jab, yet I know of one time, and only one time, when DeSantis encouraged Floridians to accept the jab. One statement in the nine months since the jab became available. DeSantis has had many more opportunities to speak on the subject, yet the moments keep slipping by him like sands in the hourglass. I do wish to note that DeSantis is currently trying to shift the subject away from the pandemic onto the subject of illegal immigrants coming to Florida, by writing an open letter to the Biden administration on that subject. Anything to keep from having to recommend that Floridians accept the jab. Something tells me that Jake is trying to shift the blame away from DeSantis, too, as if many hands will lighten the burden of the pandemic on our governor’s shoulders. Not this burden. Not this time.
@jake. . . You do understand that federal laws are created and passed by Congress, right? The chances are extremely slim that any Congressional Republicans would vote for health safety mandates that would help to keep us all alive and healthy.
In the meantime, many major corporations and schools have “quickly” implemented their own vaccine/mask mandates. . . with many more to follow. The insurance companies are busy looking at revisions to health insurance policies that will likely raise premiums/reduce coverage for those who still refuse to get vaccinated.
When those who live by “conspiracy theories” start to impact the bottom line, you’ll see how quickly capitalistic protections shift into high gear. While I personally don’t agree with “profits” over “people”. . . in this case, whatever it takes.
The Republican politicians at every level are on the “wrong” side of this. . . costing thousands of lives, and needless pain and suffering. Eventually, this hopefully will have a huge impact at the ballot box.
Meanwhile, we are witnessing Darwinism in real time.
Grey Man says
I support 100% mask mandates nationally. I support these being passed just as soon as Doritos, McDonalds and Jelly beans are outlawed. Childhood obesity is a killer through heart issues and diabetes. So if we are gonna go part of the way, let’s go all the way. Also, no more bacon or soda.
And no more 1 sided 501c3 while we are at it!