Judge John C. Cooper of Florida’s 2nd Judicial Circuit County court in Leon County, Florida decided on Thursday to move forward with a case that challenges Gov. Ron DeSantis’ authority to preempt school boards from mandating face masks for students.
In a three-hour-long motion to dismiss hearing, Cooper decided that DeSantis’ Attorney Michael Abel’s arguments did not prove that a judge ruling on a public safety issue is a violation of the separation of powers.
Abel argued that a judge cannot insert an opinion that overrides the three agencies of the Florida Department of Health, the Florida Department of Education and Emergency Management.
An executive order issued by DeSantis emphasized the Parents’ Bill of Rights and directed the FDOH and the FDOE to preempt any Florida school board from requiring masks without allowing parents to opt out their children from wearing one and gave permission for punishment for approved policies that were in defiance.
Alachua, Broward, Hillsborough, Palm Beach and Miami-Dade counties have all issued such mandates that require a medical note for a student to be opted out of wearing a face mask.
Attorneys defending parents throughout the state argued that the current executive order and the FDOH rule are holding school boards hostage from creating “safe and secure” schools as required by the Florida constitution.
Attorney Charles Gallagher III of St. Petersburg law firm Gallagher & Associates and five other attorneys effectively convinced Cooper that there is a compelling public interest and public safety concern that warrants a hearing to determine if DeSantis and Education Commissioner Richard Corcoran are operating unchecked and preempting local school boards from determining policies for their local circumstances.
Gallagher argued that the COVID-19 delta variant’s higher transmission rate, and more harmful effects on children makes this a public safety concern.
“School boards are left out of the equation,” Gallagher argued, and said the case is “an isolated issue of banning mask mandates in schools” and he said his plaintiffs are looking for “relief that says this is unconstitutional.”
Cooper announced that the case will be heard and said, “I don’t make up the law. I try to figure out what it is.”
The judge noted that Gallagher’s point that there are children involved in the case that are under 12 years of age and are too young to be vaccinated, satisfied part of the standing and adds to the urgency of the issue.
He added that those children will be subjected to a higher risk that can be lessened with the use of masks.
Cooper also noted that the state has blocked parents from choosing for their students to attend virtual school at the local level.
“The ability for distance learning is less than last year,” he said. “They [parents] must send their kids to school. If children can’t go to the classroom because there is no masking mandated, that prohibits them from going to get the best education in a classroom because they are subjected to an increased risk of COVID.
The case will be heard starting at 9:30 a.m. Monday, Aug. 23.