An administrative law judge is weighing a Department of Health rule governing school mask mandates. The two-day trial kicked off Thursday in Tallahassee with the districts arguing the Department overstepped its authority when it issued the rule, and the state saying those claims are overblown.
Six school districts are suing the state. They say the Department of Health’s basis for issuing a rule giving parents the right to opt out of mask mandates is wrong. The department first issued the emergency rule in early August—and replaced it near the end of September—a time when the districts' attorney, Jaime Cole says, COVID cases were dropping.
“One of [our] positions is going to be is that COVID was not an immediate danger because there was nothing unforeseeable or urgent—nothing happened in the prior couple of weeks to necessitate an emergency procedure such as this," he told the judge during opening arguments.
Cole says by issuing an emergency order, the Department dodged the public rulemaking process, which requires public notice and hearings to allow for input. Cole says the Department can only address issues like controlling diseases, and its mask rule doesn't do that.
“They did the opposite," said Cole. "They said, what this rule does is prevent school districts from requiring masks without parental opt out at their sole discretion. And the question is, does that control COVID?”
The state’s attorney, Jason Gonzalez, says the health department didn’t need to be in a “state of emergency” to issue an emergency order regarding the use of face masks on children in school because those powers are in state law.
“We didn’t need a state of emergency, we didn’t need to weigh the statute…so if you hear that come up again there’s no merit to that argument. I think it’s a misunderstanding of what the executive power is to declare a state of emergency.”
Gonzalez says the districts are wrong about a few things. Like the argument that the health department exceeded its authority when it crafted a rule that gives parents the sole right to opt their students out of mask-wearing at school. Gonzales also pushed back against another common claim: that the Department effectively banned mask mandates.
“This rule provides the district may, at their option, adopt a masking policy. And the department chose to draw the line on what type of mask policy by saying—you can have a mask policy, but we’re going to place a limit on it," he said.
Furthermore, said Gonzalez, the claim the rule was inspired by the Parents Bill of Rights—a new law that says parents have the ultimate say over healthcare decisions for their kids—is wrong.
That law has at the forefront of arguments over face coverings. Gov. Ron DeSantis cited it in his executive order attempting to ban mask mandates. And that executive order was released right before the health department issued its mask rules.
The hearing continues Friday.
