Judge set to decide on Florida school mask rule

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(File photo via Hillsborough County Public Schools/September 2021)

TALLAHASSEE, Fla. - An administrative law judge will have up to two weeks to issue a decision after a hearing ended Friday in a challenge by six school boards to a state Department of Health rule designed to prevent student mask requirements.

The challenge was filed by school boards in Alachua, Broward, Duval, Miami-Dade, Orange and Leon counties, which are among eight boards facing state financial penalties after adopting policies that required students to wear masks to try to prevent the spread of COVID-19.

The state’s crackdown on the school boards relied on the Sept. 22 emergency rule, which said decisions to opt out of mask requirements are at the "sole discretion" of parents or guardians. It replaced an Aug. 6 version of the rule that called for parents to be able to opt out of mask mandates but did not expressly prevent school districts from requiring doctors’ notes for exemptions.

During a two-day hearing that started Thursday, Judge Brian Newman heard testimony from witnesses called by attorneys on both sides.

Aileen Marty, an infectious-disease specialist and professor at Florida International University, testified for the school boards about the efficacy of masks in fighting the spread of COVID-19.

"There’s no ifs, ands or buts about it, masks are a highly effective way of reducing transmission from a respiratory virus, and particularly one that is spread by aerosol as is the SARS-CoV-2 virus," Marty said.

The emergency rule is designed to carry out a July 30 executive order by Gov. Ron DeSantis that sought to prevent mask requirements. It also came after some districts only allowed students to be exempt from mask mandates if they had documented medical reasons.

Marty took aim at allowing parents to opt their children out of wearing masks in schools.

"Under the circumstances that we were under, with the type of viral load we have, it is much better to have a mask mandate without a parental opt-out," Marty said, adding that it is "much safer for the child" to leave decisions about opting out of mask requirements to medical professionals.

The Sept. 22 rule also sought to give parents control over whether asymptomatic students go to school after being exposed to COVID-19, effectively preventing required quarantining of such students.

Jacob Oliva, a senior chancellor for the state Department of Education, defended the rule during testimony Friday. He pointed to results from standardized tests given to students last school year in making the case against quarantining asymptomatic students.

"When we analyzed those results, we saw a learning loss in every subject area that we tested for. It was most significant in the area of mathematics," Oliva said. "And when we were able to break down the data and look at where students were learning, whether it was in-person … or a remote hybrid option, there was clear evidence in the 94 percent of students we tested statewide that the students that came to school and learned in-person in front of their teachers, learning loss was half of what it was for the distance-learning students."

Newman gave attorneys until next Friday to file proposed final orders laying out how they would like the judge to rule. He will have until Nov. 5 to issue an order.