Attorney General Ashley Moody on Wednesday injected her legal opinion into Florida’s ongoing court battle over school mask mandates, adding noise to an increasingly political fight.
Moody, a Republican ally of Gov. Ron DeSantis, said school districts must comply with a state rule that says parents must have the ability to opt their kids out of mask requirements “unless and until the judiciary declares them invalid.”
Her legal opinion comes days after a Leon County judge ruled that DeSantis and his administration “acted without legal authority” when issuing and enforcing a blanket ban on mask mandates. The ruling was delivered orally and is not effective until written and filed. As of Wednesday evening, no ruling has been filed, which has given an opening to DeSantis and his administration to act.
Minutes after Moody published her legal opinion, the Florida Department of Education issued a statement that said her legal opinion proves districts have broken the law and need to follow state orders because “the judiciary has not declared the rule to be invalid.”
“Today, the department is urging every school district that has mandated masks without an opt out to promptly change its policies and comply with Florida’s rules and laws,” said Department of Education spokesman Jared Ochs, who did not immediately respond when asked if the state agency coordinated with Moody’s office.
11 districts defying the state’s order
Eleven of Florida’s 67 school districts have imposed temporary strict mask mandates to prevent the spread of COVID-19. Two districts — Broward and Alachua — have been sanctioned as a result of requiring parents to provide a doctor’s note before they can opt out of masking requirements. Eight other districts, including Miami-Dade and Hillsborough, have been told by the state they are in non-compliance and could face sanctions.
Charles Gallagher, the lead attorney for the plaintiffs in the mask mandate case, said he believes the state is acting inappropriately. He said there is legal precedent that “holds an oral ruling valid and enforceable” until the time it is memorialized in writing.
Gallagher said both parties have the transcript of Circuit Court Judge John Cooper’s ruling, therefore, he argued, the state “cannot claim confusion” and defy the court order.
“I don’t believe it’s appropriate to defy the court’s oral ruling,” Gallagher said in an email to the Herald/ Times on Wednesday.
School Mask Mandates at a Glance
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On March 29, Gov. Kemp signed the “Unmask Georgia Students Act” which allows parents to exempt their child from a school mask requirement. The law went into effect immediately.
3. Iowa
On Sept. 13, 2021, a federal judge ordered Iowa to halt enforcement of its law banning mask mandates in schools. On Jan. 25, 2022, a federal appeals panel narrowed that injunction. Iowa’s attorney general announced the state is not enforcing the ban while awaiting further action from the court. On May 16, 2022 a U.S. Court of Appeals lifted the injunction.
In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government, according to the state’s top education official.
An Arkansas judge ruled on Dec. 29, that a law signed by the governor in April that prohibited local officials, including school boards, from setting mask mandates was unconstitutional. School districts have been able to set their own mask requirements since August when the judge put the law on hold.
3. South Carolina
On Sept. 28, a federal judge suspended South Carolina from enforcing the rule that banned school districts from requiring masks for students.
On Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.
2. Connecticut
On Feb. 7, Gov. Lamont announced that the school mask rule would expire Feb. 28. He signed a bill on Feb. 15 that made the expiration date official.
3. Delaware
On Feb. 7, Gov. Carney amended his emergency order to allow his state-level school mask requirement to expire March 31. On Feb. 28, he announced that masks would no longer be required effective at 6:00 p.m. on Tuesday, March 1.
4. District of Columbia
On March 8, the department of health released updated guidelines that recommend universal masking only when community COVID-19 levels are high.
5. Illinois
On Feb. 5, a judge issued a temporary restraining order on the governor's statewide mask requirement. On Feb. 25, the state supreme court vacated that order. On the same day, the governor announced he would lift the requirement on Feb. 28.
6. Kentucky
Kentucky's school mask mandate ended in September, when the state legislature voted to limit the governor’s emergency powers.
7. Louisiana
According to a State of Emergency proclamation issued Nov. 23, which was extended on Jan. 19, students were required to wear masks in schools, but districts could opt out of the mandate if they adopted an isolation and quarantine policy consistent with the state's department of health protocols. On Feb. 16, Gov. Bel Edwards extended the order without requiring masking in schools.
On Feb. 7, health officials said the state would drop its school mask requirement no later than March 31. On Feb. 24, the Oregon Health Authority announced the requirement would lift on March 19. However, on Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.
On Feb. 17, Gov. Inslee announced the state's school mask requirement will end effective March 21. However, on Feb. 28, the governors of California, Oregon, and Washington issued a joint announcement that mask requirements would end in their states effective March 12.
NOTES In January 2022, the Missouri attorney general, Eric Schmitt, sued some school districts that required masks, citing a November ruling by a county judge that said local health orders tied to COVID-19 were illegal. (The ruling was interpreted differently by different districts.) The state’s treasurer announced he would also crack down on schools with mask mandates. In mid-March, Schmitt began dropping lawsuits against school districts that no longer required masks. On May 19, 2022 Schmitt announced new lawsuits against several districts that had reinstated mask requirements. On Feb. 23, 2022, New Hampshire’s governor announced the state was no longer recommending universal indoor masking and therefore schools have to end mask mandates, arguing they violate state education department rules. Soon after, the department advised districts that the mandates “are inconsistent with” their rules. There’s disagreement over whether districts still have the authority to require masks, but at least one district changed its policy in response. A bill that would have banned mask mandates was vetoed by Gov. Sununu in May 2022. Updated 5/23/2022 | Sources: Local media reports, Education Week reporting | Learn more here
Cooper ruled Friday that DeSantis exceeded his authority in barring universal mask mandates when he issued an executive order that drew its authority from portions of the Parents’ Bill of Rights. The law was approved by the Republican-dominated state Legislature and signed by the governor on June 29.
DeSantis was unable to wield his emergency power under state law to issue the executive order, Cooper added, because he had already allowed the COVID-19 state of emergency to lapse a month before he issued it. So, Cooper said, the governor has to rely on the written language of the new law.
The law says the state is not allowed to “infringe on the fundamental rights of a parent” to direct the upbringing, education, health care, and mental health of a child “without demonstrating that such action is reasonable and necessary to achieve a compelling state interest.”
Legal limbo until order is written, final
Cooper argued the governor and his administration used the first half of the statute, but not the second part, when issuing an executive order and subsequent rules that barred districts from imposing strict mask mandates. Therefore, he said, the state’s mask orders were unlawful and districts could continue enforcing their mask mandates if they proved they were reasonable as the full law intends.
“My ruling in this case, if you want to put it in one sentence, is, I am enforcing the bill passed by the Legislature and requiring that anyone who uses that bill to follow all provisions and not part of the provisions,” Cooper said.
The problem is the ruling is in somewhat of a legal limbo. Cooper said his ruling would not be effective until it is written and filed. The attorneys representing the state made a point of asking Cooper to clarify that was the case.
Additionally, DeSantis and the Department of Education have said they intend to appeal immediately.
In her legal opinion, Moody noted an appeal would grant an automatic stay on the ruling unless a court vacates the stay. In other words, once the state appeals, and it intends to do so, Cooper’s ruling will be paused and the governor’s executive order will go back into effect and the state will enforce it, unless a court says otherwise.
That means the status quo could remain in place as 11 Florida school districts defy the governor’s mask orders by requiring a doctor’s note before kids can opt out of a mandate.
See Also
Students sit in an Algebra class at Barbara Coleman Senior High School on the first day of school, in Miami Lakes, Fla., on Aug. 23, 2021. Florida school districts can legally require their students to wear masks to prevent the spread of COVID-19, a judge ruled Friday, Aug, 27, saying Gov. Ron DeSantis overstepped his authority when he issued an executive order banning such mandates.
Scott Travis, South Florida Sun-Sentinel, August 31, 2021
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5 min read
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