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School boards ask an appeals court to put the student mask case on a fast track

Girl Mask6_Pasco Schools_081021.png
Pasco County Schools

In asking the appeals court to move quickly, attorneys for the school boards said the emergency rule is slated to expire Dec. 21 and is creating confusion for students, teachers and parents.

School boards are asking an appeals court to “expedite” consideration of a challenge to a Florida Department of Health rule aimed at preventing student mask requirements during the COVID-19 pandemic.

Attorneys for the school boards in Miami-Dade, Leon, Duval, Broward and Alachua counties took the case Friday to the 4th District Court of Appeal in West Palm Beach after an administrative law judge upheld the emergency rule.

The boards filed a motion Monday asking the appeals court to put the case on a fast track.

The emergency rule, issued Sept. 22, said decisions to opt out of student mask requirements are at the “sole discretion” of parents or guardians. Also, it allowed students to attend school if they have been exposed to COVID-19 but are asymptomatic, preventing districts from requiring quarantines for those students.

The Florida Department of Education has used the rule as a basis to impose financial penalties on school districts that have required students to wear masks.

The school boards argued, in part, that the Department of Health overstepped its authority with the rule, which helped carry out a July 30 executive order by Gov. Ron DeSantis.

Administrative Law Judge Brian Newman issued a 25-page decision Friday rejecting the challenge.

In asking the appeals court to move quickly, the attorneys for the school boards said the emergency rule is slated to expire Dec. 21.

“Moreover, appellants (the school boards and Leon County Superintendent Rocky Hanna) are adversely affected by the new emergency rule, not only because of DOE’s (the Department of Education’s) enforcement and continuing penalties, but because the uncertainty surrounding the validity of appellants’ existing mask and quarantine policies is creating administrative difficulties and confusion for hundreds of thousands of students, as well as their teachers and parents,” the motion said. “Modification of those policies to achieve the compliance mandated by DOE would, in appellants’ view, unquestionably increase serious health risks for all concerned.”

In his ruling, Newman 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 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. The Orange County School Board was a party in the case, but it was not listed as being part of the appeal.

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