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Monday, November 8, 2021

Florida judge backs state in school districts' challenge of masking rules

Posted By on Mon, Nov 8, 2021 at 9:36 AM

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Saying that Gov. Ron DeSantis’ administration struck the “right balance,” an administrative law judge Friday rejected a challenge to a state Department of Health rule designed to prevent student mask requirements during the COVID-19 pandemic.

The challenge was filed by school boards in Alachua, Broward, Duval, Miami-Dade, Orange and Leon counties, which are among eight boards that faced state financial penalties after adopting student mask requirements.

In a 25-page decision, Administrative Law Judge Brian 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.

Attorneys for the school boards argued during a two-day hearing last month that the health department improperly skirted normal rulemaking processes when it issued the Sept. 22 emergency rule. But Newman wrote that the department acted within its authority when it issued the rule.

“The preamble to the emergency rule sets out a facially adequate factual basis for emergency rulemaking. In addition, the evidence presented justifies emergency rulemaking,” the order said.

Newman listed a number of shifting COVID-19 policies by school districts that filed the challenge.

“These policy pivots are not recited to criticize the school boards; COVID-19 policies should be revisited frequently and adapted to the latest COVID-19 case data. But respondent (the health department) must be just as nimble when adopting statewide COVID-19 protocols,” Newman wrote.

The judge, for example, cited the Leon County School Board’s recent adoption of a policy allowing parents to opt-out of student mask requirements, calling it an “indication that such policies are safe.”

The Department of Health rule carried out a July 30 executive order by DeSantis that was aimed at preventing mask mandates. The department issued an initial rule Aug. 6 and a revised —- and strengthened —- version Sept. 22 The rule served as a basis for the state Department of Education financially penalizing districts that required students to wear masks.

The Sept. 22 rule also allowed children 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.

Newman wrote Friday that the school boards failed to prove that giving parents opt-out control would lead to more children spreading the virus.

“As to whether the emergency rule opt-out provisions make it more likely that children will spread COVID-19 to others, that too was unproven,” he wrote. “The emergency rule requires sick children to stay home. It is extremely rare for asymptomatic people to spread COVID-19 and children are otherwise inefficient transmitters of the ... virus.”

While the case moved forward, 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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