TALLAHASSEE, Fla. — The judge in a lawsuit that challenges Gov. Ron DeSantis’ ban against school mask mandates signaled Thursday that he was far from a decision in the case — even though he said he would make one within a day.

What You Need To Know

  • Judge plans to rule at 10 a.m. Friday in suit that challenges DeSantis ban on mask mandates in schools
  • Judge John Cooper signals he hasn't decided yet and says he's 'struggling with all these issues' 
  • Suit brought by parents in Hillsborough, Pinellas, Orange, Miami-Dade, Palm Beach and Alachua counties

“I’m just struggling with all these issues,” Judge John Cooper of Florida’s 2nd Judicial Circuit told attorneys via Zoom after closing arguments in the case brought by parents throughout Florida.

Cooper said he planned to rule at 10 a.m. Friday in a case that has moved swiftly, as he had pledged, since it began two weeks ago.

"I think I could probably make arguments for either side of the case," Cooper told lawyers on Thursday, "and that’s a function of the lawyers doing a good job of laying out their arguments."

The lawsuit, brought by parents who live in Hillsborough, Pinellas, Orange, Miami-Dade, Palm Beach and Alachua counties, claims the governor's order preventing school districts from requiring masks violates Florida’s constitution.

The suit names DeSantis, Education Commissioner Richard Corcoran, the Florida Department of Education and the Florida Board of Education as defendants.

DeSantis maintains that school districts should leave it up to parents to decide whether their children wear masks in classrooms. Most Florida districts have left the question of masks optional.

But in defiance of the governor’s order, school districts in Sarasota and Leon counties in recent days joined Hillsborough, Alachua, Broward, Miami-Dade and Palm Beach counties in requiring students to wear masks.

Then on Tuesday, Orange County Public Schools did likewise, approving a 60-day mask mandate for everyone from pre-kindergarten through 12th grade.

Next Tuesday, the Volusia County School Board could follow. Four of the five Volusia County School Board members have expressed support of a universal masking policy, prompting an emergency meeting next Tuesday.

The district’s existing policy makes masks optional, the position of most Florida districts.

The question of legal precedent

Much of the conversation during Thursday’s closing arguments dealt with legal precedent and the question of why the plaintiffs didn’t name the Florida Department of Health as a defendant, along with DeSantis, the Florida Department of Education and others.

At issue is a new Florida Department of Health rule that requires school districts to give students the option to opt out of mask-wearing mandates.

Plaintiffs’ attorney Craig Whisenhunt said the Department of Health merely created the rule.

“It’s the Department of Education’s responsibility to enforce it,” Whisenhunt told Judge Cooper.

“I don’t suppose you have any cases for me to look at, do you?” Cooper asked, referring to similar previous cases that he might consider for his ruling.

“It turns out it’s a fairly novel circumstance, so I was not able to find you a case,” Whisenhunt replied.

In closing arguments, Whisenhunt referred to a 2020 case in which a judge sided with the Florida Education Association against the state’s plans to reopen schools during the pandemic.

Whisenhunt said the court “repeatedly turned back to the fact that ultimately the decision was left to the school boards,” before an appeals court judge reinstated a stay in the case.

In his closing arguments, defense lawyer Michael Abel argued that “the court runs straight into finding precedent from” Florida’s First District Court of Appeal.

He said that court “has held the trial court cannot intrude on the state’s discretionary decisions in these policy matters.”

"And in fact," Abel added, "in the relatively sparse area of COVID-19 jurisprudence in this country, none other than Chief Justice (John) Roberts of the United States Supreme Court has said that questions about the safety and health of people during the COVID-19 pandemic should not be subject to second-guessing by the judiciary ..."

'Political debate is raging'

The lawyers otherwise reiterated themes that continue to play out statewide and nationally.

For the plaintiffs: Florida’s COVID-19 crisis, the safety of children, the power of their witnesses’ testimony, the efficacy and importance of masks and the right of school districts to decide for their constituents.

For the defense: Florida’s politics, the freedom of parents and children, the power of their witnesses’ testimony, the ineffectiveness and potential harms of masks and the right of parents to decide for their children.

In their recent motion to dismiss the case, defense lawyer Abel told the judge Friday, “we observed that the testimony in this court would likely mirror the intense political debate occurring at the same time outside of this courtroom. And even in the last week during this trial, that political debate is raging to such a degree that even the actions of this court have become part of the public conversation.

“This court also heard from concerned parents who cherish their fundamental right to direct the health care and mental health of their minor children, and that includes the ability to decide whether to cover their children's faces in school. They see this as a matter of parent choice rooted in both constitutional principles and Florida's recently enacted Parents' Bill of Rights.”

Plaintiffs’ attorney Whisenhunt referred to rebuttal testimony on Wednesday from Dr. Tony Kriseman, a pediatric pulmonologist.

Kriseman “left us with a chilling thought. He told us that our hospitals are bursting at the seams, our staffs burned out. Our nurses want to quit. Our ERs are full. We are weary. I don't believe anybody disagrees that the COVID rates in Florida have skyrocketed since June," Whisenhunt said.

“I don't believe there's any disagreement that children now are being hospitalized at a rate higher than any previous point in this pandemic." He called the delta variant "more infectious than any previous variant we have had to face. And despite that reality, despite all of the science, the governor has sought to insert himself in the matters of local health concerns and impede the ability of school boards to do what they are constitutionally mandated to do, which is to operate and control their schools.”

Cooper, the judge, emphasized to lawyers on both sides that he had much work behind and ahead of him.

"I think I’ve read every appellate decision more than once that I think is applicable to this situation,” he said before adjourning for the day. “I’ve looked at the rule, I’ve looked at the statute, I’ve looked at all sorts of things. I’ve looked at the exhibits extensively, and I think it’s just going to take me maybe sitting down with a pen and legal pad and starting to write to formulate my thinking on this issue.”