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DeSantis vs. school districts: Who's right when it comes to mask mandates?

While facing the argument of withheld funds from the governor, experts say schools also have the potential to get sued by parents whose children may get sick.

FLORIDA, USA — When the bell rings next week, who will be at the head of the class when it comes to mask wearing. School districts, or Florida Gov. Ron DeSantis?

Professor Renalia DuBose with Cooley Law School weighed in on DeSantis’ recent executive order threatening to withhold state funding from districts who issue mask mandates. 

“I have never seen this type of heavy-handed action,” she said.

DuBose says state statutes mandate that funding can only be withheld if districts break the law. She argues that an executive order is an order, but it isn’t a law.

“The Florida legislator, through Florida statute, says you withhold them when there’s a violation of law or school board rule," DuBose said. "It does not say executive order.”

Professor Dr. Jay Wolfson with the University of South Florida says an executive order certainly doesn’t carry the same weight as a traditional law passed by the legislature but says the governor could take things to court to let a judge decide if it’s sufficient.

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“In some respects, this is a political and constitutional game of chicken to see who will flinch first,” he said. 

While facing the argument of withheld funds from the governor, Wolfson says, schools also have the potential to get sued by parents whose children may get sick if they don't impose a mask mandate.

"There are concerns about liabilities if school districts don’t take action to protect their children," he said. "Some aggressive attorneys might sue the school districts if a child gets sick. On the other hand, the governor has already said if school districts try to institute mandates, they will have their state funds cut. Which will make it very difficult for those districts to operate, and he can take another step. He has the constitutional authority to remove elected officials from office.”

Essentially, districts have the potential to get into messy and expensive litigation with the governor or with parents. And there’s no clear indication of who would win these cases.

"There’s no easy answer to that and it will only, if it gets to that, be determined in the courts,” Wolfson said. 

DeSantis also recently signed what he calls the “Parents Bill of Rights” into law last month to help protect parents' rights regarding a child's education, upbringing, and health care. That bill, however, doesn’t mention masks or mask mandates.

"To say, 'We’re not going to mandate masks, and if you do, we’re going to take your money,' that is a heavy-handed action,” DuBose said.