Florida governor's decree does not prohibit mask mandates

Disjunctive for the use of masks in Florida schools 0:44

(CNN) -

School boards across the state of Florida were rocked by Gov. Ron DeSantis's decree threatening to withdraw funding for schools that implement mask-wearing orders.

Broward County Public Schools reversed their decision to require the use of masks;

Duval County Public Schools requires parents to be able to "opt in" to have their children wear a mask, and Alachua County Public Schools will limit its mask-wearing mandate to the first two weeks of school.

• Florida's Largest School District Concerned About Funding After Governor Banned Mask Mandates In Schools

But several legal experts told CNN that the decree does not actually prohibit mask-wearing mandates in schools and is more of a political speech than a legal directive.

"This is a loose riff on the governor's political views on mask wearing and parental rights, replete with totally unenforceable 'Whereas' clauses, designed to get headlines in newspapers, on TV, and on Twitter, rather than judicial support in the event of unavoidable lawsuits, "said CNN legal analyst Paul Callan.

Columbia Law School professor Richard Briffault, specializing in state and local government law, said something similar.

advertising

"The decree is nothing more than a glorified press release telling Florida health and education officials to write regulations that follow Florida law," Briffault said.

Luke Wake, an attorney for the Pacific Legal Foundation, a nonprofit legal organization that claims to defend Americans threatened by government overreach and abuse, said he was also skeptical.

"I'm not sure of its scope," Wake said.

"That probably depends on your statutory authority to withhold state funds."

The DeSantis decree directs the Florida Department of Education and the Florida Department of Health to issue emergency regulations that give parents the power to choose whether their children wear masks in class.

The decree, signed Friday, also threatens to withhold state funding if districts fail to comply.

The decree states that DeSantis has the authority to issue the order under the Florida Constitution and the Florida Emergency Management Act.

The decree also states that it is consistent with the state's Bill of Rights for Parents.

"In accordance with Decree 21-175, the Florida Department of Health will initiate rule-making in collaboration with the Florida Department of Education to protect parents' freedom to choose whether their children wear masks," said the spokeswoman for DeSantis, Christina Pushaw, in a statement.

"We are finalizing emergency health and education rules this week that do not prohibit masks in schools but will require parents to have the right to opt out of their children. School districts are expected to allow parents to do so. this choice, "Pushaw said.

• They will demand masks and vaccination in some US states due to an increase in cases

Florida is in the midst of a notable increase in COVID-19 hospitalizations, primarily among unvaccinated people, which surpassed the state's previous peak last July, according to the Florida Hospital Association.

In general, children are much less likely to get seriously ill from the virus, but they are not immune and can infect others.

Legal experts question the purpose of the decree

Wake said the decree "simply directs state agencies to create standards to protect public health in the school environment that respect parents' wishes about their children's use of masks."

"The (decree) does not explicitly prohibit regulations that mandate the use of masks by children in Florida schools," Callan said.

"Authority to regulate this rests with the Florida Department of Health in consultation with the Florida Department of Education, not the governor."

Briffault noted that the decree does not prohibit mask-wearing mandates, but it does encourage the Florida Department of Education to ban them, make them optional, or make parents opt out of wearing them for their children.

Callan says that while DeSantis sends a strong message about masks, his views are not binding and his decree likely won't stand up to court challenge.

"The decree itself does not do anything that has legal consequences," Briffault said.

"The (decree) is actually quite toothless in the sense that all sections of the law it invokes do not deprive the Department of Health of its power as the ultimate decision-maker regarding the measures necessary to inhibit the spread of disease. Transferable, as set forth in section 1003.22 (3), Florida Statutes. "

• If we want children to go back to school and the economy to prosper, more people need to get vaccinated, says expert

"It is highly unlikely that the courts will allow the state to withhold funding from school districts that insist that children wear a face mask as a necessary sanitary measure, especially when the CDC recommends it," Callan said.

Callan says opponents of the measure will likely cite that under Article IX of the Florida Constitution, the state has a duty to educate all children.

"Cutting funding to districts that choose to require the use of face masks to prevent the spread of COVID-19, a life-threatening communicable disease, would violate the state's 'primary duty' to educate all children, not just those who they don't wear a mask, "Callan said.

Florida masks