School boards appealing mask decision

by | Nov 8, 2021

TALLAHASSEE — School boards have moved quickly to appeal an administrative law judge’s decision that upheld a Florida Department of Health rule aimed at preventing student mask requirements during the COVID-19 pandemic.

Attorneys for five school boards filed a notice Friday that is a first step in taking the case to the 4th District Court of Appeal, according to a copy of the notice posted on the state Division of Administrative Hearings website.

The filing came shortly after Administrative Law Judge Brian Newman rejected a challenge to a Sept. 22 emergency rule issued by the Department of Health. That rule, at least in part, carried out a July 30 executive order by Gov. Ron DeSantis that sought to prevent school mask mandates.

The notice, as is common, does not detail arguments that the school boards will make at the appeals court. But school boards have argued that the Department of Health overstepped its legal authority in issuing the rule, which has served as a basis for state education officials to financially penalize districts that have required students to wear masks.

In a 25-page decision Friday, Newman upheld the emergency rule, which, in part, said decisions to opt out of student mask requirements are at the “sole discretion” of parents or guardians. He wrote that the school boards “failed to prove that the emergency rule opt-out provisions facilitate the spread of COVID-19 in schools.”

“On the contrary, the evidence admitted in this case established that the emergency rule opt-out provisions strike the right balance by ensuring that the protocols that govern the control of COVID-19 in schools go no further than what is required to keep children safe and in school,” Newman wrote.

The notice said the appeal was being filed by the school boards in Miami-Dade, Leon, Duval, Broward and Alachua counties. The Orange County School Board also has been a party in the case, but it was not listed as being part of the appeal.

The 4th District Court of Appeal, which is based in West Palm Beach, hears Broward County cases. Many challenges of rulings by administrative law judges are heard in the Tallahassee-based 1st District Court of Appeal. A panel of that court late last month issued a ruling in a separate case that indicated it thought school officials in Alachua and Duval counties violated state law by requiring students to wear masks.

The department issued an initial rule Aug. 6 and a revised — and strengthened — version Sept. 22. In addition to requiring that parents be able to opt out children from mask requirements, the revised rule allowed students to attend school if they have been exposed to COVID-19 but are asymptomatic, preventing districts from requiring quarantines for those students. That issue was not in the Aug. 6 version of the rule.

While the case moved forward before Newman, some of the districts scaled back or eliminated mask requirements as COVID-19 cases in the state dropped. For example, the Duval County and Orange County districts decided to allow parents to opt their children out of wearing masks.


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