TALLAHASSEE, Fla. – An administrative law judge heard opening arguments and attorneys began calling witnesses Thursday in a challenge to a state Department of Health rule aimed at preventing student mask requirements during the COVID-19 pandemic.
The challenge was filed by school boards in Alachua, Broward, Duval, Miami-Dade, Orange, and Leon counties. The six school boards are among eight boards that face state financial penalties after enacting student mask requirements. The penalties target school board members’ salaries.
The health department emergency rule is designed to carry out a July 30 executive order by Gov. Ron DeSantis that sought to prevent mask requirements. It also came after some districts only allowed students to be exempt from mask mandates if they had documented medical reasons.
The rule, issued Sept. 22, said decisions to opt out of mask requirements are at the “sole discretion” of parents or guardians. It replaced an Aug. 6 version of the rule that called for parents to be able to opt out of mask mandates but did not expressly prevent school districts from requiring doctors’ notes for exemptions.
The revised rule also sought to give parents control over whether asymptomatic students go to school after being exposed to COVID-19.
Jamie Cole, an attorney representing the school boards, argued Thursday that the health department did not follow procedural requirements for enacting an emergency rule. At the time the revised rule was issued, Cole said, a surge in COVID-19 cases caused by the delta variant of the coronavirus was dwindling.
“The number of cases was going down rapidly. So, one of our positions is going to be that … COVID was not an immediate danger, because there was nothing unforeseeable happening, nothing urgent, nothing had happened in the prior couple of weeks to necessitate an emergency procedure such as this,” Cole told Judge Brian Newman.
Attorneys representing the state argued that the health department acted within its authority when it issued the rule and that the department was warranted in placing the restrictions on school districts.
“That is not accurate legally, factually, to say that it’s not possible for the department to find an immediate danger as the cases are declining. They found immediate danger based on those facts. It was reasonable. And they drew the line of COVID mitigation measures that were appropriate based on where we were on that curve at that time,” Jason Gonzalez, an attorney for the department, said.
Miami-based pediatrician Lisa Gwynn, president of the Florida Chapter of the American Academy of Pediatrics, testified on behalf of the plaintiffs and pointed to the importance of wearing masks during the pandemic.
In recorded video testimony, Gwynn said “the more kids that wear masks, the less risk they’re going to have,” and that if fewer students wear masks, “more spread of the virus will take place.”
During cross-examination by the state’s lawyers, Gwynn said she would not grant a medical exemption to a parent seeking to opt a student out of a school mask requirement.
Gonzalez told Newman that the school boards’ challenge doesn’t hinge on witnesses’ testimony about the efficacy of masks in stopping coronavirus spread.
“I think you’re probably going to hear more expert testimony on both sides than you want to hear. This really is not a battle of the experts as to determine where, precisely, the mask policy (and) parental opt-opt ought to land,” Gonzalez said.
Leon County Superintendent of Schools Rocky Hanna was at the Division of Administrative Hearings for the first of what is scheduled to be a two-day hearing and was expected to testify about the emergency rule’s impact on his district.
“The governor certainly has a whole lot of lawyers in there, a whole lot of attorneys representing him. I think it all comes down to state control versus local control. And we are just simply advocating on behalf of residents and students here in Tallahassee and Leon County that we have a seat at the table and a say in exactly what’s best for the children here in our community,” Hanna told reporters.
Leon County School Board member Rosanne Wood defended mitigation measures the district has put in place.
“We enacted these rules to protect our children, and I feel that’s my constitutional duty to do that. And so, if I have to lose my salary, and we saved one kid from going to the hospital or one employee, then it’s worth it to me,” Wood said, speaking to reporters alongside Hanna.
Cassandra Pasley, the health department’s chief of staff, testified Thursday, and other witnesses for the state were expected to include a top state education official and two district superintendents.