Judge to rule on Florida school mask lawsuit


Yvonne Moniz, right, a special needs teacher at Challenger Elementary, along with Oakland Park Elementary third grade teacher Donna Sacco, second from right, and Oriole Elementary fourth grade teacher Yolanda Smith, center, tries to persuade anti-mask protester Heather Tanner that all students need to wear masks to protect the most vulnerable. during a protest outside of a Broward County School Board meeting, Tuesday, Aug. 10, 2021, in in Fort Lauderdale, Fla., to discuss a possible mask mandate when school starts next week. (Amy Beth Bennett/South Florida Sun-Sentinel via AP)

TALLAHASSEE, Fla. (WFLA) — After three full days of testimony the state and parents suing over it’s mask opt-out policy made their closing arguments Thursday. 

The parents argued the governor overstepped his authority, while the state argued the dispute boils down to a political question.

Attorney Craig Whisenhunt who is representing parents suing the state argued the Governor took away a useful public health tool in the midst of a worsening pandemic.

“I don’t believe anybody disagrees that the COVID rates in Florida have skyrocketed,” Whisenhunt said.

He also argued it should be school boards who make the rules on masking.

“There can be no rational, reasonable, competent basis to prohibit school boards from complying with expert recommendations from the CDC,” Whisenhunt said.

But Michael Abel, an attorney representing the State, argued the judge is being asked to delve into a political debate.

“Plaintiffs want this court to rebalance state policy, and in doing so, overrule the parent choice rights,” said Abel.

Abel also argued the governor struck a balance between the rights of parents and public health with his executive order on masks.

“You can protect public health and have parent choice,” Abel said.

The two sides had very different perspectives on whether the judge could determine if  schools were operating safely.

“I’m not going to try and define it, but I know it when I see it,” said Whisenhunt.

“Under no circumstances can ‘I know it when I see it’ be a judicially manageable standard,” said Abel.

There is a question as to whether any ruling in this case could even affect the Department of Health rule requiring parental opt-outs.

That’s because the parents didn’t sue the Department of Health directly, nor did it challenge the parents bill of rights.”

“The operative rule stands on its own and has direct statutory authority,” said Abel.

The judge will issue his ruling Friday. 

No matter the outcome, an appeal is expected.

There is also a lawsuit in federal court alleging the opt-out policy violates the Americans with Disabilities Act. 

At least two school boards currently defying the opt-out requirement have also indicated they plan to file suit.

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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