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Judge to decide fate of Florida's mask mandate ban in public schools

'I'm still wrestling with pretty much all the issues,' Judge John Cooper says
Posted at 5:08 PM, Aug 26, 2021
and last updated 2021-08-26 17:08:02-04

IN LESS THAN 24 HOURS, a judge will decide if Florida's mask mandate ban for public schools holds up in court. — In less than 24 hours, a judge will decide if Florida's mask mandate ban for public schools holds up in court.

It comes after Leon Circuit Court Judge John Cooper heard three days of testimony from parents, physicians and education officials. Attorneys also providing stacks of COVID-19 data and research to review.

A group of pro-mask parents filed the lawsuit earlier this month.

Their attorneys offered closing arguments Thursday, restating main positions with the judge.

Leon Circuit Court Judge John Cooper
Judge John Cooper is set to make a ruling in the case Friday morning.

Attorney Craig Whisenhunt told Cooper that Gov. Ron DeSantis exceeded his authority, issuing a dangerous and illegal order requiring parental opt outs.

"We're asking you to direct Commissioner [Richard] Corcoran and the Department of Education to cease and desist the enforcement of the unconstitutional order that they are currently beating school districts down with to force compliance in unsafe environments," Whisenhunt said.

At least ten districts are defying the governor's order, installing mask mandates without the required parental opt-outs. They include the state's six largest school systems, which represent nearly half of Florida's public students.

Attorney Craig Whisenhunt, plaintiffs' attorney in school mask lawsuit
Attorney Craig Whisenhunt is representing the plaintiffs in the school mask lawsuit.

The State Board and Department of Education have threatened financial sanctions for any district in violation.

To date, only two school districts have been officially penalized -- Broward and Alachua counties. The state is withholding funds equal to the monthly pay of all school board members who voted in favor of noncompliance.

Attorneys for the state allege the ban is a policy decision protected under the Parents' Bill of Rights. The 2021 law gives parents general control over a child's health care, they believe.

Michael Abel, a defense attorney for the governor and education officials, told Cooper that everything the state had done is permitted under state law.

"This entire procedure -- from the executive order to the Department of Health rule, to its implementation and enforcement -- all of it comports with the Florida Constitution and statutes," Abel said. "Plaintiffs haven't shown otherwise."

Michael Abel, defendants' attorney in masks in school lawsuit
Michael Abel is representing the defense team in the school mask lawsuit.

Cooper will now take a day to determine who is right. The legal veteran isn't a stranger to major rulings.

In March, he dismissed a potential class-action lawsuit against the state and Deloitte Consulting over the crippled unemployment portal, CONNECT.

Cooper, however, said his latest decision won't come easy. He told attorneys it involved complex legal questions and a highly charged topic.

"I have notebooks galore," said the Second Judicial Circuit judge. "I've read your exhibits. I took a lot of notes. I'm usually not a big note taker. ... and I'm still wrestling with pretty much all the issues."

While Cooper reviews the case, outside the virtual courtroom, parents, teachers and 2.9 million public school students prepare for his ruling -- even the governor.

DeSantis said Thursday morning he would appeal any unfavorable decisions.

"Obviously, if we win in district court or trial court, I'm sure it'll be appealed on the other side too," DeSantis said. "That's good. We obviously need to have this stuff crystallized."

Cooper plans to give a verbal decision Friday at 10 a.m. He said doing so would speed up the appeals process if one or both parties intended to challenge the decision.

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