Florida Gov. Ron DeSantis has asked a state appellate court to overrule a judge who blocked a state law banning mask mandates for schools – that is until the court can hear arguments on the constitutionality of the state directive.
In a 41-page emergency motion filed with the 1st District Court of Appeal in Tallahassee on Wednesday, DeSantis argued that the trial judge who overruled the order substituted his “own health policy preferences or risk assessments for those of the Governor or, more importantly, the State Health Officer and Surgeon General.”
At issue is the executive order DeSantis issued in July that permitted parents to choose whether to mask their children at school, in accordance with a new state law that empowers parents to make healthcare decisions for their children. Despite that, at least 10 Florida counties have defied the rule – which did not prevent parents who support face covers from masking up their children.
Nine sets of parents challenged the opt-out masking provision, asserting that all students were at risk of contracting COVID-19, and possibly dying, unless all students were masked for the entire school day.
Meanwhile, DeSantis threatened to withhold funding to districts that refused to give parents the option.
Circuit Judge John Cooper last week rejected the order, saying the law did not include an opt-out clause and that the provision was arbitrary and capricious.
On Wednesday, DeSantis asked the appellate court to temporarily preclude Cooper’s order from taking effect.
In its response, the governor’s legal team argued, in part, that Cooper ignored the language of the law. “The Department of Health — not local school districts — [has] the legislatively delegated authority to create rules governing the control of communicable diseases in schools,” their brief states.
Moreover, they argued that Cooper’s ruling did not find that the order violated the state Constitution’s clause that requires the state to provide “safe” and “secure” schools, despite the lack of universal masking.
Finally, on one other point, DeSantis’ representatives maintained that Cooper justified overturning the ban on maks mandates by citing Florida’s new Parents’ Bill of Rights, which allows parents to make healthcare decisions for their children.
Yet the judge erred, they continued, because those challenging mask-mandate ban never raised the Parents’ Bill of Rights as an issue.
Instead, Cooper did, they maintain, and he did so incorrectly. According to the governor’s motion, Cooper asserted the law allows local school boards to impose mask mandates over parents’ objections, which “awards school districts new authority” not found in the law itself. “The Governor could not possibly have violated the Parents’ Bill of Rights by protecting parents’ rights,” they argue. “Most assuredly, the Parents’ Bill of Rights does not grant any authority to local school districts that did not previously exist.”
DeSantis’s communications director, Taryn Fenske, said in a statement on Thursday, “No surprise here that Judge Cooper concluded that he is unlikely to be overruled on appeal. We unsurprisingly disagree. Yesterday we filed our emergency motion to reinstate the stay, and we anticipate the appellate court will rule quickly, much like during the school re-opening case last year.”
As an aside, the bad news for Cooper as well as the parents he appeared to support with this ruling, is that even some in the liberal media are beginning to see that masking children is fruitless in stopping the virus.
Last month, New York magazine, citing a CDC study released in May, reported that in U.S. schools, “Distancing, hybrid models, classroom barriers, HEPA filters, and, most notably, requiring student masking were each found to not have a statistically significant benefit. In other words, these measures could not be said to be effective.”
“Many of America’s peer nations around the world — including the U.K., Ireland, all of Scandinavia, France, the Netherlands, Switzerland, and Italy — have exempted kids, with varying age cutoffs, from wearing masks in classrooms,” New York magazine continued. “Conspicuously, there’s no evidence of more outbreaks in schools in those countries relative to schools in the U.S., where the solid majority of kids wore masks for an entire academic year and will continue to do so for the foreseeable future.”
Then last week, The Atlantic carried a story by Vinay Prasad, an epidemiology professor at the University of California-San Francisco, who noted, “The potential educational harms of mandatory-masking policies are much more firmly established, at least at this point, than their possible benefits in stopping the spread of COVID-19 in schools.”
“States and communities that are considering masking policies just to be safe should recognize that being overly cautious has a cost, while the benefits are uncertain,” Prasad added.
No scientific consensus exists about the wisdom of mandatory masking rules for schoolchildren. … In mid-March 2020, few could argue against erring on the side of caution. But nearly 18 months later, we owe it to children and their parents to answer the question properly: Do the benefits of masking kids in school outweigh the downsides? The honest answer in 2021 remains that we don’t know for sure.”
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