DeSantis, in rhetorical shift, de-emphasizes promotion of COVID vaccines

With booster doses of the Moderna and Johnson & Johnson COVID-19 vaccines likely coming soon (Pfizer doses are already available), aides to Gov. Ron DeSantis aren't saying whether the governor will take advantage.

“I do not have any details to share about the governor's personal medical decisions. As the governor has said, each person should be able to make his or her own informed choices," Press Secretary Christina Pushaw said via email last week in response to a question from the Phoenix.

DeSantis was more open about his plans last winter, when he was actively promoting the then-newly available vaccines and traveling the state opening vaccination clinics. Overall, 58.9 percent of Floridians are fully vaccinated against the coronavirus, according to CDC data, above the national average of 57 percent. But several other states have higher vaccination rates, including New York and California.

DeSantis said in February that he would take the J&J shot when his age group became eligible and even teased that he might do it on camera but, amid growing skepticism about the vaccines among core Republican voters, in April did so privately. Under federal guidelines, he'll be eligible for a J & J booster as soon as they become available.

Officially, the administration continues to encourage people to get vaccinated, but these days DeSantis spends more time fighting with the Biden administration, local governments, school boards, and private businesses over whether they can require proof of vaccination for workers and customers.

At times, DeSantis appeared to undermine confidence in vaccines — not least by elevating Joseph Ladapo — who has been openly skeptical of the federal public health response to the virus — to the office of surgeon general, running the Florida Department of Health.

“These vaccines have provided benefit to individuals to reduce severity of illness — less likely to hospitalize, less likely to die. I think the data's very clear on that. However, the vaccines are not providing the type of public benefit in terms of stopping transmission that we had hoped," DeSantis said recently.

To Democratic House co-leader Evan Jenne of Broward County, the governor's combativeness reflects DeSantis' appeal to base GOP voters (many of whom suffer a range of conspiracy theories including the Big Lie that Trump really won last year's election. Note that Republican National Committee member Peter Feaman of Florida this summer called the vaccines “the mark of the Beast," as CNN reported.)

“He needs to hold that base together — not only for 2022 and his reelection bid, not just then. He needs to hold them together for another two years after that when he runs for president," Jenne said during a Zoom conference with reporters on Monday.

DeSantis disavows holding any ambitions beyond reelection but Jenne doesn't buy it.

“It is what it is. When you're the governor of Florida, not many of your constituents can be found in Salt Lake City," Jenne said. He referred to a speech the governor gave there in July before the American Legislative Exchange Council, in which DeSantis mocked the CDC, according to a report in The Salt Lake City Tribune. The governor has made a series of out-of-state fundraising jaunts.

Alternatives

Monoclonal antibodies have proven an effective treatment for COVID if administered early, and DeSantis has been aggressively pitching them since August, opening clinics where the treatments are available free of charge. Additionally, Merck's new COVID pill, molnupiravir, is awaiting regulatory approval.

Again, in launching the monoclonal campaign the governor appeared dismissive of additional U.S. Centers for Disease Control and Prevention guidance.

“The nonpharmaceutical interventions we've seen — remember, we were promised that they would end the pandemic — lockdowns, school closures, mandates — and it just hasn't done that," DeSantis said at the time.

The governor accuses President Biden of politicizing COVID.

“Don't make the vaccine divisive!" he exclaimed during a news conference Friday in Naples.

“You are trying to take people's jobs away over this issue! You are trying to plunge people into destitution! You are taking away their livelihoods. Nobody else is doing that," he said of Biden.

Ladapo has disparaged the vaccines, too — especially the idea of mandating them.

“You exert pressure and people change behavior. That's true for many different things," the doctor said during a joint appearance with DeSantis.

“But mandates are really about, they're about … who controls whose life, you know? They're about whether kids belong to the parents or whether they're instruments of the state in terms of some of these mandates related to masks."

DeSantis argues that vaccine mandates don't account for natural immunity acquired through surviving infection, including among first responders exposed on the job. Nationally, first responders appear more vaccine averse than the general public, according to a U.S. News and World Affairs report.

The CDC acknowledges that coronavirus variants can break through the vaccines' protections but still recommends taking the shots, arguing that they provide more robust protection than natural immunity does.

The agency points to a study of previously infected people in Kentucky. Those not vaccinated had 2.34 times the odds of reinfection compared with those who were fully vaccinated. “If you have had COVID-19 before, please still get vaccinated," said CDC Director Dr. Rochelle Walensky.

The Ivy League-educated governor keeps himself well informed about pandemic data, medical studies, and regulatory developments, according to spokeswoman Pushaw, and the Department of Health maintains a “vaccine locator" on its website. The state still dispatches mobile vaccine clinics around the state.

As for DeSantis' own plans for a booster shot, Pushaw had this to say:

“Gov. DeSantis chose to get the COVID-19 vaccine several months ago, after his age group became eligible. As he has said, he made that choice because of evidence that getting vaccinated lowers an individual's risk of becoming seriously ill from the virus.

“But the right choice for him, or even for most people, is not necessarily the right choice for everyone. COVID-19 vaccines should be available to all (well, all who are eligible under the FDA's authorization) and mandated for none."


Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

Ron DeSantis orders investigation into Facebook’s secret leniency program

Gov. Ron DeSantis has ordered an investigation into Facebook following reporting that the company has allowed selected high-profile individuals to violate its rules against spreading medical misinformation, harassment, incitements to violence, and other abusive posts.

The Wall Street Journal reported on Sept. 13 that one of the principal beneficiaries of Facebook's practice was Donald Trump, DeSantis' own political mentor.

Nevertheless, the governor pointed in a letter sent Monday to Secretary of State Laurel Lee to the Journal's reporting that “this previously undisclosed double standard 'at times effectlvely grant[ed] incumbents in elections an advantage over challengers,'" especially in local races.

“The thought of technology companies clandestinely manipulating elections is an affront to the basic principles of our republic. Floridians deserve to have faith that their elections are fair and free from intrusion by Big Tech monopolies like Facebook," DeSantis wrote.

Lee is Florida's chief elections officer.

The Journal report cited internal Facebook documents and said executives concealed the program from the public and its own oversight board. The program is known as “cross check" or “XCheck," the Journal reported.

Legislation passed this year at DeSantis' urging targets social media platforms that discriminate on the basis of viewpoint, subjecting them to heavy fines and possible bars against doing business with the state, especially when political candidates are affected.

DeSantis and other Republicans accused platforms including Facebook and Twitter of bias against conservatives, especially after those and other platforms suspended Trump's accounts for spreading misinformation about the 2020 presidential election.

The Journal reported that Facebook “whitelisted" “pretty much anyone regularly in the media or who has a substantial online following, including film stars, cable talk-show hosts, academics, and online personalities with large followings."

Users so designated — including members of Trump's family and Congress — qualified for specialized reviews of targeted posts that Facebook sometimes never actually conducted, the newspaper said, meaning the suspect information remained open to public view.

“Mr. Trump's account was covered by XCheck before his two-year suspension from Facebook in June," the Journal reported.

Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

GOP lawmaker files Texas-style bounty-hunter abortion bill in Florida Legislature

A Florida version of the Texas law banning abortions after about six weeks of pregnancy and allowing citizens to sue people who provide or enable abortions has landed in Tallahassee in the form of HB 167, filed by Republican Webster Barnaby of Volusia County.
Barnaby's bill, filed Wednesday, mimics key provisions of the Texas law — for example, forbidding abortions when medical workers use sonography to detect “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac."

The only specific exemption in the bill is in case of “medical emergency." However, it retains language in existing law barring public funding for abortions except in cases of rape or incest or when “medically necessary to preserve the life of the pregnant woman or to avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman, other than a psychological condition."

The bill carries no criminal sanctions, leaving enforcement to private citizens who have reason to suspect neighbors of seeking early abortions. They'd take medical providers to court and, as a reward, they could receive court-ordered judgments of $10,000 per case. Defendants would have to shoulder their own legal costs.

Also liable would be persons who “aid or abet" such abortions, defined as “including, but not limited to, paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this chapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter."

Many women don't realize they are pregnant until well after six weeks. The effect of the bill could be to make abortion all but unavailable in Florida; the Texas law forced clinics there to turn away patients, who flooded clinics in neighboring states, according to an Associated Press report.

Barnaby's appears to be the first abortion-restriction bill filed for the regular legislative session due to begin on Jan. 11. However, Democrat Anna Eskamani of Orlando has filed HB 6023, which would end the state-mandated 24-hour waiting period for abortions and allow the use of state funds to pay for the procedures.

The Phoenix attempted to contact Barnaby, the House's only Black Republican, but his Capitol office hasn't replied to a voice mail message.

Gov. Ron DeSantis has said that he wants to look into what Texas is doing, but an aide added that he is leery of encouraging citizens to snoop on each other.

However, the governor has joined an attack by the state of Mississippi on Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey, key U.S. Supreme Court precedents protecting abortion rights. The case threatens to overturn decades of abortion protections established under Roe and Casey.

The Supreme Court will hear oral arguments on Dec. 1 in Dobbs v. Jackson Women's Health Organization, stemming from a Mississippi law that bans most abortions after 15 weeks. It has been blocked for now by a lower federal court.

After the high court voted narrowly early this month to let the Texas law go into effect pending further proceedings, Senate President Wilton Simpson told a Tampa Bay broadcaster that “fetal heartbeat" legislation was already in the works in his chamber.

Kathleen Passidomo, chair of the Senate Rules Committee and next in line to become Senate President, said during a speech reported by the Sarasota Herald-Tribune that she opposes having citizens sue each other to police abortions.

House Speaker Chris Sprowls also has indicated he might be interested in legislation similar to that in Texas, as the Orlando Sentinel has reported.

All the officials named above are Republicans.

“This gross excuse of a bill attacks women and birthing people who are seeking an abortion before they even know they are pregnant," Rep. Eskamani said of Barnaby's bill in a written statement.

“Abortion is health care, abortion is a private medical decision, abortion is personal — and there should be no politicians getting involved between a person and their doctor," she continued.

“I'll add that this is an economic issue too: We are already seeing businesses in Texas consider relocating and/or allow their staff to relocate to states that are more welcoming towards reproductive health. We can't attract a talented, diverse workforce when we attack their rights," Eskamani added.

On Tuesday, abortion-rights advocates gathered in the Florida Capitol courtyard to hear speeches by Commissioner of Agriculture and Consumer Services Nikki Fried and members of the Legislature.

“A Texas-style abortion ban and bounty hunter bill in Florida represents the greatest threat to bodily autonomy and personal freedom in generations," Laura Goodhue, executive director for the Florida Alliance of Planned Parenthood Affiliates, according to a press release issued on Wednesday.

“We are here to tell legislative leaders in no uncertain terms that we will not stand for this in Florida," Goodhue said.

“This bill is dangerous, radical, and unconstitutional," Fried said in a written statement on Wednesday.

“The hypocrisy of this attempt by Gov. DeSantis and Republicans in the state Legislature to take away our rights while at the same time preaching 'my body, my choice' when it comes to wearing masks is absolutely disgusting. They have made it abundantly clear by banning masks in schools and refusing to apply for money to help hungry kids that they don't actually care about children's lives," she continued.

“It's obvious that this is nothing more than a shameless attempt to try to control women and our bodies. To every woman in Florida who sees this news today and is afraid for your rights and your future: I promise you that I will do everything in my power to stop this bill from becoming law."

The bill asserts that the presence of a “fetal heartbeat" means the pregnancy is likely to proceed to full term. That usually occurs after about six weeks, calculated from the first day of the woman's last menstrual period.

Doctors, however, say this doesn't mean the fetus has developed an actual heart, including the four chambers that oxygenate blood and send it into the vascular system, according to a National Public Radio report. That happens at around the tenth week. Similarly, doctors don't talk about “fetuses" at six weeks; they consider them embryos.

Still, Barnaby's bill makes a point of eliminating the word “fetus" from most parts of Florida's abortion law and replacing it with “unborn child."

The bill specifies that citizens can't sue women who have undergone abortions.

It says defendants can attempt to argue that they acted in defense of women's constitutional right to undergo abortions.

However, “the affirmative defense is not available if the United States Supreme Court overrules Roe v. Wade … or Planned Parenthood v. Casey … regardless of whether the conduct on which the cause of action is based occurred before the United States Supreme Court overruled either of those decisions," the bill says.

Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

‘Expiration date. It’s done’: Florida's new surgeon general insists ‘we’re done with fear’

Florida's new surgeon general is Dr. Joseph Ladapo, a UCLA heart specialist who has fully embraced Gov. Ron DeSantis' personal-freedom approach to the COVID-19 pandemic, judging by his remarks during a news conference on Tuesday.

DeSantis called reporters together to announce that he has chosen Ladapo to replace Dr. Scott Rivkees, who left the position on Monday following a bit more than two years in which he kept a low profile as the pandemic raged. The position requires confirmation by the Florida Senate.

The governor took the announcement as an opportunity to rail against federal public health priorities, including the Biden administration's decision to hold back monoclonal antibody treatments that DeSantis has been emphasizing lately.

That said, when the rationing started, Florida got the largest supply of the treatments, according to the U.S. Department of Health and Human Services.

President Joe Biden have exchanged heated words before over their differing approaches to COVID policy, but DeSantis' rhetoric reached a new peak on Tuesday, accusing the president of active malevolence toward his state.

“He hates Florida more than anything, and this is absolutely going to hurt people," DeSantis said.

“There's a time for politics — I get that. But, you know, to be so obsessed with trying to kneecap Florida any way you can that you would take away lifesaving treatments — I'm sorry, some things should be beyond politics."

Ladapo will work under an arrangement similar to Rivkees' — involving a two-year contract (with a possible three-month extension) as surgeon general, presiding over the Florida Department of Health, and a separate deal with the University of Florida College of Medicine.

His U.F. salary will be $262,000, representing the middle of the pack among similarly credentialed medical colleagues.

“We anticipate that the Florida Department of Health will contribute a significant portion of this salary based on the percentage of time he dedicates to the surgeon general role," Ken Garcia, a spokesman for the medical school, said via email.

The base state salary for surgeon general is $250,000 per year. Ladopo's contract was not immediately available but, under Rivkees, the state contributed $35,000 per fiscal quarter to the university covering his surgeon general duties.

Ladapo is a cardiologist who was an associate professor at the UCLA David Geffen School of Medicine; previously, he was on the faculty of the Department of Population Health at NYU School of Medicine and a staff fellow at the U.S. Food and Drug Administration, according to his UCLA bio.

He earned his M.D. from Harvard Medical School and a Ph.D. in health policy from the Harvard Graduate School of Arts and Sciences. He immigrated to the United States from Nigeria.

The administration sidelined Rivkees after he departed from the administration line on managing COVID in April 2020. He even was blocked from answering questions from members of the Legislature.

Ladapo, by contrast, is self-described signatory to the Great Barrington Declaration who considers one of DeSantis' key COVID advisers, Jay Bhattacharya of Stanford University, “a good friend of mine."

The declaration, which Bhattacharya helped draft, argues for taking pains to protect older and more vulnerable people from the coronavirus while leaving younger and healthier people free to become infected and build herd immunity. It is solidly at odds with the bulk of scientific and medical opinion about managing the pandemic.

The document describes the “devastating effects on short and long-term public health. The results (to name a few) include lower childhood vaccination rates, worsening cardiovascular disease outcomes, fewer cancer screenings and deteriorating mental health — leading to greater excess mortality in years to come, with the working class and younger members of society carrying the heaviest burden. Keeping students out of school is a grave injustice."

“There are a couple of things that I didn't totally agree with" in the declaration, Ladapo said.

“But the spirit of what they believe — that, you know, we need to respect human rights; that, you know, people do have autonomy over their lives and it's not OK — it's not even not OK — but it's not virtuous and it's not right to just sort of take away those rights from individuals. I completely agree with that. That's why I signed it."

Ladapo insisted that science shows that natural immunity imparts “great protection, terrific protection, durable protection, robust protection" from reinfection with serious symptoms.

DeSantis accused federal public health authorities of playing down the role of natural immunity because they don't want to discourage people from getting vaccinated.

“They think if you tell people recovery from COVID provides strong protection, that some people will say, 'Oh, I might as well just go get infected,' DeSantis said. “I don't think most people would do it, but even if someone does you have to say the truth to people," the governor said.

“You can't tell noble lies to try get them to behave in a way that you think you want them to behave in," he said.

He accused the feds of playing down monoclonal antibody treatments, which DeSantis has been promoting heavily through state-backed clinics, for the same reason — that it would discourage vaccination.

Biden's “Path Out of the Pandemic" plan identified monoclonal antibody treatment “as a key tool to improve health outcomes, prevent hospitalizations and reduce the strain on overburdened hospitals." The plan also included strike teams to ensure more patients can access these “lifesaving COVID-19 therapeutics."

However, with seven states including Florida consuming 70 percent of the nation's supply, the administration took control of the monoclonal antibody stocks to ensure doses are available to patients elsewhere.

Ladapo was asked whether the state should do more to promote vaccines.

“The state should be promoting good health, and vaccination isn't the only path to that. It's been treated almost like a religion and it's just senseless. There are lots of good pathways to health and vaccination's not the only one," he said.

Other strategies include “losing weight, exercising more, eating more fruits and vegetables."

He stressed three points regarding his approach to COVID.

One: “We're done with fear. That's been something that unfortunately has been a centerpiece of health policy in the United States ever since the beginning of the pandemic, and it's over here. Expiration date. It's done."

Two: “We're going to be very explicit about the differences between the science and our opinions."

Three: “We are going to never lose sight of the fact that public health is not one thing. … It's not about how many cases of COVID there are in a location. And that is a part of public health but it's not the only thing. And, as all of you know, that's the way public health has been treated over the past year and a half."

Regarding fear's role in the pandemic response, a reporter asked Ladapo about the role of conspiracy theories in driving vaccine resistance.

“Part of why that is an issue is because of the climate of distrust that had been engendered over the past year and a half. And that was a direct result of scientists — my colleagues, some of them — taking the science and, basically, misrepresenting it to fit their agendas, their interests, what they wanted to see people do," Ladapo said.

He said he supports vaccine education efforts but insisted the decision about whether to take the shots should be left to individuals.

He rejected the idea of lockdowns — forcing nonessential businesses to close and people to isolate to contain the virus, saying evidence shows they don't work.

Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

Ron DeSantis reshaped Florida's appeals courts -- and it seems to be working out really well for him

As Gov. Ron DeSantis knows, when you get into a legal beef it helps to have appointed three members of the court that will hear the appeal. And to have placed three more jurists on the court above that one.

That's the situation at Florida's First District Court of Appeal, which sits in Tallahassee and hears disputes involving state government. Republicans have controlled the governor's office for so long that not a single judge on the court was appointed by a Democrat.

Similarly, at the Florida Supreme Court, since taking office in January 2019 DeSantis has seated three Federalist Society-affiliated justices, giving it a relentlessly conservative cast that has paid off for the governor more than once.

Prospects in federal court are peachy, too: Former President Donald Trump shifted the U.S. Circuit Court of Appeal for the Eleventh Circuit and U.S. Supreme Court solidly to the right.

So, when U.S. District Judge Mark Walker in Tallahassee blocked enforcement of HB 1, the anti-riot law DeSantis signed this year, pending a trial on the merits of the law that's scheduled to open in the spring, the governor conceded that he's accustomed to losing at the trial level.

“We will win out on appeal, I guarantee you we will win that on appeal. Just like we'll win the parents' rights one on appeal, just like we won almost anything out of Tallahassee on appeal, that's just kind of the way the cookie crumbles," DeSantis told reporters on Sept. 10., following the ruling.

That second case involved Leon County Circuit Judge John Cooper's order blocking enforcement of DeSantis' hard line against face mask mandates in public schools. Sure enough, a three-judge panel of the First Circuit (including A.S. Tanenbaum, appointed by DeSantis in 2019) on Sept. 10 lifted Cooper's stay pending further proceedings.

Judges are supposed to be impartial — as Chief Justice John Roberts famously said during his 2005 confirmation hearings, “It's my job to call balls and strikes, and not to pitch or bat." More recently, Justice Amy Coney Barrett told an audience in Kentucky last week that the U.S. Supreme Court “is not comprised of a bunch of partisan hacks."

DeSantis has declared that he looks for judges who will interpret the law and Constitution, not make law from the bench. But there's more than one way to skin a legal text, and of course judges view cases through their own philosophical lenses.

The question is whether the conservative monoculture DeSantis and his predecessors have built within the judicial branch is willing to check excesses committed by the executive and legislative branches, which the Republican Party has dominated for decades.

“It gives that appearance of the courts being far less independent. And that's really problematic, right? That undermines the public's trust and confidence in the courts," Fentrice Driskell of Tampa, a civil litigator and the ranking Democrat on the state House Judiciary Committee, said in a telephone interview.

“If you have a governor who is appointing judges who reflect his same judicial philosophy, of course you're going to get results that favor the governor. They think the same way," she said.

“Far be it from me to ever impugn the integrity of a jurist. I think what I'm trying to say is, we've got a process that is flawed and is going to continue to reach these types of results because we're focusing on the wrong factors when we appoint people."

The Federalist Society

The governor takes his cues on appointments from the Federalist Society for Law and Public Policy Studies, which grooms young conservatives for places in the legal establishment, including the courts. DeSantis, himself associated with the organization, also places Federalists on the judicial nominating commissions that recommend jurists for state appellate courts.

It's maybe not fair to say the First DCA was outright biased toward DeSantis when it lifted Leon County Circuit Judge John Cooper's block on enforcement on the administration's efforts to punish county school boards that imposed strict mask mandates — again, pending a trial on the merits.

But Republican governors including DeSantis wouldn't have appointed the court's members if they hadn't shared their judicial philosophies.

DeSantis “did not say to the judicial nominating commissions, 'Send me the three best people and I'll support somebody from that.' He made it very clear by only appointing judges who had specific credentials and by changing the judicial nominating commissions so that they would send him the kind of candidates that he was looking for," Bob Jarvis, a constitutional law professor at Nova Southeastern University's Shepard Broad College of Law, said in a telephone interview.

“There's no ideological diversity at this point. We have the most conservative Florida Supreme Court that we've had in decades. There is no judicial independence. They're just running in lockstep with the governor," Jarvis said.

Regarding Walker's ruling, HB 1 was DeSantis' top priority during the annual legislative session last spring, an ardently pro-police pushback to last summer's wave of protests against police brutality.

The governor claimed the stiffer penalties for people participating in violent protest was content-neutral, but Walker accepted civil rights groups' claims that it had already chilled their activities. He ruled the law was so sweeping that it could punish even perfectly legal activities.

DeSantis has promised an appeal to the U.S. Court of Appeals for the Eleventh Circuit, which has stuck up for him before, most notably in September 2020, when the full court overruled a three-judge panel that had invalidated a state law, which DeSantis supported, erecting financial barriers to felons seeking re-enfranchisement under 2018's Amendment 4.

Two Florida jurists — Barbara Lagoa and Robert Luck, whom the governor had placed on the Florida Supreme Court before their elevation to the federal bench — declined to recuse even though they'd been involved in a related case while still on the state court. Their votes gave DeSantis his margin of victory.

Appeals haven't always gone the governor's way. Also in September 2020, the Florida Supreme Court rejected DeSantis' attempt to name intermediate state appellate judge Renatha Franklin as a justice because she hadn't been a member of the Florida Bar for the required 10 years. Even justices the governor had placed on the high court ruled against him. Francis was Black, but none of the available replacements were, which means the court lacks a Black justice now.

On the other hand, the justices have proven more than willing to reverse even recent precedents handed down by their more liberal forebears.

“A lot of commentators would tell you that the Florida Supreme Court is one of the more conservative in the country," Max Gaston, staff attorney for the ACLU of Florida, which is helping to litigate the riot law case, said in a telephone interview.

“Additionally, I would say that there is a notable absence of representation of Black justices on the high court, which is for its own reasons troubling," he added.

“Justice is supposed to be impartial. That's their call and their duty, and I certainly don't want to suggest otherwise. But I do believe that, when you're confronted with a conservative bench, oftentimes it can lead to an uphill climb for plaintiffs organizations like ours."

White judges

Sean Shaw — a former state House member and unsuccessful candidate for Attorney General — said he is “disgusted and appalled" that the state's highest court lacks a single black justice. His father, the late Leander J. Shaw Jr., was one of four Black justices to serve on the court in its history. The last was Peggy Quince, one of three justices who reached the mandatory retirement age as DeSantis entered office in 2019.

The only Black person serving on the First DCA is Joseph Lewis Jr., appointed by Jeb Bush in 2001.

As long as Republicans keep their hammerlock on state government, Democrats are powerless to reverse the trend, Shaw conceded.

“Unfortunately, elections have consequences, and I am aware of that. That means that the victors of those elections are going to be able to appoint judges that are more conservative than I would like," he said in a telephone interview.

Still: “The Florida Supreme Court has no Black justices. The appellate courts are lacking in the appropriate Black representation. That is something that is just totally inappropriate and not correct, in my opinion."

The Phoenix asked DeSantis Press Secretary Christina Pushaw whether the governor is concerned about the lack of Black appellate judges, but she hasn't responded yet.

Rep. Driskell filed legislation last year to reduce governors' power to appoint members of the judicial nominating commissions in the interest of diversifying the panels. Under her bill, three appointments would go to the governor, three to the Florida Bar, and those appointees would pick another three. No more than five could belong to a single political party. It received not a single committee hearing.

Under existing law, governors get five JNC appointments and the Bar nominates another four whom the governor is free to appoint or reject.

During Gov. Rick Scott's administration, Driskell served on the Bar committee that selects these nominees. She said Scott sent his general counsel to committee meetings to press for nominees who shared the governor's conservative philosophy.

“There's nothing in the statutes that says the governor gets to appoint someone because they share his political philosophy," Driskell said. Instead, it calls for racial, ethnic, gender, and geographic diversity.

“It talks about being fair and balanced," Driskell said.

None of this bodes well for the redistricting process, whereby the Legislature redraws legislative and congressional district boundaries every 10 years. That process is just getting underway following the latest U.S. Census. Last time, the courts strictly enforced Florida's voter-approved Fair Districts amendments, which forbade drawing districts to benefit any political party. This time, whether they'll be more deferential maps favoring Republicans who'll control the process is an open question.

“I fear that we're in a position where, because the judicial selection process has become so politicized, that there might be a sense of defeatism that the public may have with respect to trusting that the courts can help make sure that these districts are fair in the event that the Legislature gets it wrong," Driskell said.

“The judiciary is a co-equal branch of government. It really is the check and balance on us all. And so, when people lose faith in that, you can see how it undermines faith in our democracy," she said.

Track record

Notwithstanding the governor's faith that state and federal appeal courts will see things his way, DeSantis doesn't always win at the trial level, where state judges stand for election but governors are allowed to fill vacancies; presidents appoint U.S. district judges.

Here's a rundown on the governor's recent litigation history:

School masks: The appeal of Judge Cooper's ruling is still before the First District, although attorneys for the parents suing for tougher mask requirements have asked the court to pass the case to the Florida Supreme Court.

“Without a definitive and immediate resolution by the Florida Supreme Court, local school boards, students, teachers, and parents will be mired in uncertainty," they wrote in a legal motion filed late Friday.

“Local school boards require certainty to be able to impose mask mandates with no parental opt-out without being subject to punishment by [the administration]. In the meantime, [the parents'] children are faced with the increased risk of exposure to the Delta variant in attending school in-person with no reasonable alternative and are being subjected to continuing constitutional violations."

In a victory for DeSantis in a similar suit, raising disabilities-related claims on behalf of disabled public school kids, U.D. District Judge Judge Michael Moore in Miami on Wednesday refused to enjoin the governor's policy.

He concluded that federal law obliges the parents to seek accommodations to protect their children individually, through an administrative process. The case is still pending, but Moore ruled the parents were unlikely to prevail on their claims. The administration (names defendants include DeSantis, the Department of Education, and Education Commissioner Richard Corcoran) has filed a motion to throw the case out of court.

Additionally, a number of school districts with strict mask mandates have filed administrative claims against the administration.

Cruise ships: A federal judge in Tampa in June upheld the administration's challenge to federal guidelines requiring cruise lines to demand that passengers be vaccinated against COVID-19. U.S. District Judge Steven Merryday ruled that the U.S. Centers for Disease Control and Prevention exceeded its authority in issue the sailing guidelines.

A three-judge Eleventh Circuit panel initially disagreed with Merryday but in an astounding twist changed its mind and allowed his injunction against the CDC to stand. The panel never provided a full explanation, but members might have wanted to avoid having the full court take up the case or giving the Supreme Court, which Attorney General Ashley Moody had asked to review the matter, a chance to set a national precedent.

However, in a second case filed by Norwegian Cruise Line Holdings, U.S. District Judge Kathleen Williams in Miami in August blocked the state from forbidding ships from demanding proof that passengers have been vaccinated against COVID-19. Williams concluded that Norwegian was likely to succeed with legal claims alleging violations of its First Amendment rights and that the state law would impose a substantial undue burden on its right to operate.

Citizens' initiatives: A federal court in July blocked implementation of a new Florida law capping campaign contributions that support citizen-initiated efforts to amend the Florida Constitution. U.S. District Judge Allen Windsor ruled that the cap could cripple citizens' ability to exercise their First Amendment Rights by making it difficult or impossible to collect enough signatures to place proposed constitutional amendment on the ballot. The state has not filed an appeal.

Social media: Also in July, U.S. District Judge Robert Hinkle blocked enforcement of a new law, pushed by DeSantis, allowing big fines for social media platforms deemed to have discriminated against users including candidates for office based on their political positions. He called the law a clear violation of the First Amendment. It was another of DeSantis' priorities during the spring legislative session. The state has filed an appeal with the 11th Circuit.

Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

DeSantis suffers another major courtroom defeat as judge blocks enforcement of his new anti-riot law

A federal judge has barred enforcement of one of Gov. Ron DeSantis signature legislative achievements this year — HB 1, his Black Lives Matter-inspired crackdown on protests —ruling that its redefinition of “riot" is vague enough to cover perfectly legal behavior.

This article was originally published at Florida Phoenix

In another major courtroom defeat for the governor, U.S. District Judge Mark Walker in Tallahassee ruled Thursday that the law's definition of the word is so vague that people can't understand what they'd need to do to avoid arrest if a demonstration gets out of hand.

Additionally, police would be unleashed to apply their own interpretations, chilling First Amendment rights, he said.

“Gov. DeSantis cannot credibly argue that this new definition of 'riot' was not intended to empower law enforcement officers against those who may criticize their legal authority, as he has referred to the proposed legislation that led to HB 1 as 'the strongest anti-rioting, pro-law enforcement piece of legislation in the country, and referred to HB1's critics as 'anti-police'" Walker wrote.

“Gov. DeSantis further promised to have 'a ton of bricks rain down on' those who violate the law when he unveiled HB 1's preceding proposed legislation. Through this new definition of 'riot,' he appears to have done just that, using a threat of selective enforcement as his rain clouds."

Walker added that, if allowed to take effect, the statute could prove a double-edged sword.

“Though plaintiffs claim that they and their members fear that it will be used against them based on the color of their skin or the messages that they express, its vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of," he wrote.

Walker ruled that the state may not apply the law's definition of “riot" pending appeal. But he specified that the injunction applies only to the defendants named in the case — DeSantis, Broward County Sheriff Gregory Tony, Duval Sheriff Mike Williams, and Walt McNeil of Leon County.

Those are jurisdictions in which the civil rights groups behind the lawsuit — The Dream Defenders, The Black Collective, Chainless Change, the Black Lives Matter Alliance of Broward, the Florida State Conference of the NAACP, and the Northside Coalition of Jacksonville — allege the statute has chilled their First Amendment rights.

The state will remain free to protect the public under laws that existed before the new statute was enacted, Walker said. The groups, however, would suffer significant damage to their constitutional rights absent an injunction. And the state has no authority to violate the Constitution that the courts are obliged to respect, he said.

Walker's ruling came one day after a state trial judge sitting a few blocks away barred enforcement of DeSantis' policy of allowing parents to opt out their children from school district mask mandates for any reason pending an appeal already before the Florida 1st District Court of Appeal.

A shrug

During a news conference Thursday afternoon in New Port Richey, DeSantis essentially shrugged at the news.

“That's a foregone conclusion in front of that court. So, we will win out on appeal, I guarantee you we will win that on appeal. Just like we'll win the parent's rights one on appeal, just like we won almost anything out of Tallahassee on appeal, that's just kind of the way the cookie crumbles," the governor said.

Florida Democrats welcomed the ruling. During impassioned debate during the regular legislative session last spring, they'd argued the governor was attempting to criminalize protest.

“Judge Walker came to the same conclusion we did back in March, that this law is vague and open to abuse," Hillsborough County House member Fentrice Driskell said in a written statement.

“Our First Amendment rights are sacred and must be protected, but this would allow bad actors in government or law enforcement to persecute and punish people who they disagree with. It was written to score political points with their base, not to make Florida a safer or freer place to live."

As for the plaintiff organizations, they issued a joint statement:

“H.B.1 was passed as a direct response to racial justice protests in 2020 and appears designed to target those who protest police violence. Among other concerning provisions, the law risks criminalizing peaceful protest and shields those who injure or kill protesters — for example, by ramming their vehicles into protesters — from civil penalties. As states around the country threaten to pass similar legislation, today's decision serves as a powerful reminder that such unjust and unconstitutional efforts cannot stand."

In promoting the legislation, DeSantis insisted it would apply to riots led by groups of any political persuasion. But the proposal arrived soon after protests against police brutality broke out across the country last summer, sometimes devolving into significant violence at the hands of protesters, counter-protesters, and police alike.

In a footnote, Walker observed:" The state of Florida was no stranger to these largely peaceful protests. In defendant DeSantis's own words, protests following the murder of George Floyd were 'largely peaceful.' Moreover, the governor's office reported that the Florida Department of Law Enforcement 'had not received reports of widespread property damage, commercial or residential.'"

History, grammar lessons

Walker opened his 90-page ruling by recollecting Florida's history of civil-rights protests, including the 1956 Tallahassee Bus Boycott. “What's past is prologue," the judge observed.

The new law includes this definition of “riot":

“A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct," which results in “injury to another person … damage to property … or imminent danger of injury to another person or damage to property."

Previously, the Florida Supreme Court had defined the term as when “three or more persons acted with a common intent to mutually assist each other in a violent manner to the terror of the people and a breach of the peace."

Violations of the new law would bring felony penalties and DeSantis designed the measure to make it harder for accused people to bail out of jail. Anyone who hits a protester with a vehicle could claim self-defense.

The opinion includes an extensive disquisition on the statute's grammatical construction, even reproducing sentence diagrams submitted by both sides, in which they disagreed entirely on what it means. Walker concluded that the statute is a grammatical mess that an ordinary person would have a hard time figuring out — and risk serious criminal penalties if he or she gets it wrong.

“Defendants' proposed interpretation strains the rules of construction, grammar, and logic beyond their breaking points, and requires this court to ignore the plain text of the statute and blithely proclaim that 'everyone knows what a riot means,' notwithstanding this new definition that the Florida Legislature enacted. Under both separation of powers and federalism principles, this court cannot rewrite the statute to conform it to constitutional requirements," Walker wrote.

“In short, defendants' preferred construction is neither reasonable nor readily apparent given the plain language of the statute. Instead, it reduces much of the verbiage to surplusage and invites this court to fill in the blanks that the Florida Legislature left behind. To accept that invitation would usurp the powers of the Florida Legislature."

The language is so confusing that someone would read it “and not be sure of its real-world consequence," Walker wrote.

“She would not know if this law meant that she had to merely avoid sharing a common intent to assist two others in violent and disorderly conduct, or if she had to avoid participating in any public event where such violent and disorderly conduct could occur," he continued.

“The vagueness of this definition forces would-be protesters to make a choice between declining to jointly express their views with others or risk being arrested and spending time behind bars, with the associated collateral risks to employment and financial well-being. A vague law is no law at all, and certainly neither is one that can lead to multiple opposing interpretations. That type of law is simply a trap for the innocent."

Chilling effect

Walker cited declarations by the plaintiffs that they have sharply curtailed their activism since the law took effect for fear the law “emboldens police to overreach … and also emboldens civilians to hit protesters with their cars."

Those fears were based in reality, the judge said, pointing to a declaration by the leader of the police reform group Chainless Change regarding a demonstration in October outside the Broward County Sheriff's Office HQ.

The group “was met by agitators who spit on [their] staff and made efforts to attack one of [their] members, according to the declaration. “Officers nearby took no action to remove the agitators," but instead “harassed [their] members and set up barricades to prevent [them] from accessing areas of downtown."

In another episode, police deployed tear gas during a May 2020 Black Lives Matter protest in Fort Lauderdale after counter demonstrators disrupted the gathering. Under the statute, that potentially could subject organizers to criminal sanctions, the judge said.

“Plaintiffs' organizational and associational injuries, including their diversion of resources and self-censorship, are sufficiently concrete and particularized" to demonstrate that the law is causing them harm, Walker concluded.

He rejected evidence presented on DeSantis' behalf documenting plans for a “Juneteenth Black Joy Celebration" in West Palm Beach. The suggestion was that organizers showed no fear of gathering in public.

“It should go without saying that a public gathering of Black people celebrating 'Black joy' and release from bondage does not automatically equate to a protest — or something that the governor apparently implies should be chilled by the new riot law," he wrote.

Those harms are directly traceable to DeSantis, who has touted his power to call in the Florida Department of Law Enforcement and Florida Highway Patrol to police crowds and to remove sheriffs who don't meet his standards for crowd control, Walker wrote.

He also pointed to evidence that Florida sheriffs' deputies have responded over-zealously to demonstrations and stood by during disruptions by counter-demonstrators. None of the sheriffs named in the lawsuit refuted that evidence, he said.

“Accordingly, this court finds plaintiffs have demonstrated that defendant sheriffs' enforcement authority causes plaintiffs to self-censor and divert resources based on their well-founded fears that [the law] will be enforced against them."

He rejected arguments by DeSantis' attorneys that the groups could only challenge the law after it is enforced against them.

“Decades of binding Supreme Court and Eleventh Circuit precedent has held that pre-enforcement review is available for plaintiffs in facial vagueness and overbreadth challenges in the First Amendment context," Walker wrote.

Additionally, the governor's lawyers argued the federal court should invoke the “abstention doctrine" — meaning defer to state courts adjudicating challenges to statutes. Walker replied that there are no pending state court challenges to the law and that the U.S. Supreme Court has given federal trial judges plenty of room to decide First Amendment cases.

“The practical effect of Gov. DeSantis's request to abstain is that many individuals who seek to protest would stay home due to the chilling effect of a vague and overbroad statute (as evident from plaintiffs' declarations), and those brave enough to go protest may not understand whether their actions conform to the bounds set forth by the statute and risk being arrested," he wrote.

“What is more, even if a person who is arrested acted within constitutional bounds, he or she may have to spend time in custody before a state court dissects the statute to discern its meaning and determine whether that person was lawfully arrested," he added.


Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

DeSantis loses again in lawsuit over his schools mask-mandate policy

A state trial judge has cleared Florida school districts to enforce strict mask mandates for students until a state appeals court can decide whether the DeSantis administration holds authority to enforce a parental veto over masks.

Leon County Circuit Judge John Cooper had ruled last month that the governor abused his authority in ordering the state Department of Health and Department of Education to punish districts that limited parental discretion over mask wearing.

On Wednesday, Cooper followed up by lifting a stay against enforcing that earlier ruling. A stay is a procedural hold designed to preserve the legal status quo pending an appeal. Unless the DeSantis administration persuades a higher court otherwise, the move blocks it from enforcing the governor's policy.

“This case has generated a lot of heat and a lot of light. But the bottom line is: This case is about enforcing the laws the Legislature passed," Cooper said. “That, and the pandemic situation that we are in — why I think setting aside this stay is appropriate. And so I hereby make that effective immediately."

The action shifts now to Florida's 1st District Court of Appeal, an intermediate state appeals court that hears cases arising from disputes over state government actions. DeSantis has expressed optimism that he'll prevail there — or, if not there, before the Florida Supreme Court, which he has packed with conservatives.

Judge Cooper referred to Florida's Parents' Bill of Rights, signed into law by DeSantis, which gives parents the right to control, among other things, health care decisions for their children. DeSantis cited that language in issuing an executive order allowing parents to opt out their children from a school mask mandate for any reason.

The Department of Health adopted a rule enshrining the governor's policy, and the Department of Education has been begun enforcing it by withholding state money from local school boards that have rebelled against the directive. At least two districts — Alachua and Broward — have seen local board salaries withheld. Overall, 12 school districts and a lab school have stuck with strict mask mandates, despite the administration's policy.

On Aug. 27, Cooper ruled that the governor had actually violated the Parents' Bill of Rights because it gives government entities authority to override parents' rights if “such action is reasonable and necessary to achieve a compelling state interest and that such action is narrowly tailored and is not otherwise served by a less restrictive means."

“The Parents' Bill of Rights does not ban school board face mask mandates. The law expressly permits school boards to adopt policies regarding the health care of students such as a face mask mandate, even if a parent disagrees with that policy," he said at the time.

Cooper signed a written version of his ruling on Sept. 2, and the DeSantis administration immediately filed a notice of appeal with the 1st District.

Under state court procedures, that triggered an automatic stay against enforcing Cooper's order pending appeal; Cooper explained Wednesday that court policy is to defer to government action as a general rule until a higher court can rule in such cases.

However, court procedures allow trial judges to lift automatic stays if they find that delaying an order would cause irreparable harm to its beneficiaries and the other party has little chance of winning on appeal. Both circumstances apply here, he said.

“It seems to me, based on the evidence I've heard, that there's no harm to [the administration] if the stay is set aside," Cooper said.

“There's nothing in my final judgement that prevents [the administration] from enforcing the full Bill of Rights. I'm just saying you can't enforce part of it."

He cited the existence of the pandemic and heightened danger from the highly infectious Delta variant to children, who are not eligible for vaccination if younger than 12 years.

He conceded the situation is novel.

“I don't know of any case — and I've not had any pointed out to me — where a court had to deal with a nondisputed pandemic situation with threats to young children who, at least based on the evidence, arguably had no way to avoid this except to stay home and isolate themselves. I think everybody agrees that's not good for them," Cooper said.

A group of parents who filed the civil complaint argued the governor's policy would leave their children exposed to infection from unmasked children. The districts with mask mandates generally allow exceptions only if certified by a medical doctor. In his ruling on the merits of the parents' case, Cooper concluded their right to protection trumped those of parents who opposed masking.

School boards throughout the state have insisted their policies are justified in defenses filed with the department of education.


Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

Judge: Lawsuit over DeSantis schools mask-policy tests uncharted legal waters

The trial pitting parents critical of Gov. Ron DeSantis' school masking policies against the administration will extend into Friday.

The attorneys presented their last witness on Wednesday, but the judge said he needs to review the evidence before hearing closing arguments.

This article was originally published at Florida Phoenix

The reason, Leon County Circuit Judge John Cooper said during a Zoom hearing, is that some aspects of the dispute have never been decided by appellate courts before and will require careful deliberation.

“That's what our profession requires us to do, is look to authority and follow that authority if we can, if it's relevant. If not, we try to do our best to understand what the appellate courts and the Legislature require us to do. And then we proceed on," Cooper said.

He said would hear closing arguments Thursday morning and plans to rule from the bench on Friday morning.

The parents' case is that DeSantis exceeded his authority in signing an executive order in late July forbidding local school districts from requiring students to wear masks in classrooms unless they allow parents to opt out for any reason.

A growing number of districts have rebelled, issuing mandates that allow opt outs only with documented medical excuses. They cite the surge in COVID Delta variant infections, which have not left public school teachers, staff, and students unscathed.

DeSantis — and the lawyers representing him and other named defendants Education Commissioner Richard Corcoran, the Department of Education, and the Florida Board of Education — insist a state law passed last spring, the Parents' Bill of Rights, compels the governor's policy. It gives parents the right to make medical decisions (among others) for their children.

Judge Cooper on Wednesday entered into evidence an Aug. 20 DOE press release announcing Corcoran's order that Alachua and Broward, the first districts to buck the policy, come into compliance or face punishment.

The third day of testimony saw Jay Bhattacharya, one of DeSantis' go-to experts when devising his policy, back on the stand. The Stanford University researcher is a co-author of the Great Barrington Declaration, which recommends shielding people most vulnerable to the virus, including older people and those already with serious illnesses, while leaving younger and less susceptible people free to develop “herd immunity."

Plaintiffs' attorney Charles Gallagher led Bhattacharya through statistics documenting the recent caseload upsurge and the deaths of 11 children younger than 16.

A third-grader in Leon County died of COVID over the weekend, Gallagher said. Bhattacharya, testifying from California, said he was unaware of it.

'Acceptable death rate'

“What would be an acceptable death rate for children?" Gallagher asked.

“I reject the premise of the question. The question is not what's an acceptable death rate. The question is: What are the trade-offs?" Bhattacharya replied.

Gallagher complained that the researcher was not answering the question put to him. But Judge Cooper allowed Bhattacharya to answer in his own way. Cooper had noted earlier in the trial that there isn't a jury in the case and that he would give witnesses latitude under cross examination.

“The right way to think about policy is by comparing the benefits and harms of the policy," not setting “some lexicographical cutoff and saying, if it's above this then you don't do anything or do something," Bhattacharya said.

“Policy like masking 5-year-olds will have harms to children. You compare that against the benefits, such as they are, and then make decisions on that basis. I don't think it's right to say, 'What's the right, acceptable number of deaths?' I mean, compared to what?"

Bhattacharya repeated what he'd testified to the day before: That research shows long-term masking can cause “considerable harm" to children that can “last a lifetime." He added: “Your question makes no sense in the context of how policy should be done."

Eventually Cooper interceded. “I think he's saying that, 'I don't accept the premise that there is any death that is either not enough or too much.' It's not answerable. Whether I agree with it or not, that's his answer," Cooper said.

Beside arguing that face masks are ineffective against coronavirus transmission, Bhattacharya insisted that even the more easily transmitted Delta variant threatens mostly elderly people, not schoolchildren.

Gallagher appeared to attempt to establish during his questioning that Bhattacharya based his conclusions on data gathered earlier in the pandemic, before the more easily transmissible Delta arrived this year and drove large caseloads that threaten to overrun Florida's hospitals.

He led the researcher through a long list of COVID studies, asking about each one: When were the data collected? Most of the information, Bhattacharya said, dates from 2020.

At another point in his questioning, Gallagher pointed to Florida Department of Health data documenting the caseload increase.

Bhattacharya said he draws this conclusion: “You had a massive wave of cases and it's peaked and it's on its way down."

Other medical witnesses have testified that the Delta variant poses enough of a threat to justify mask mandates in public schools. Some of the parents bringing the case have testified that they need the mandates to protect their own kids against infection from unmasked classmates.

On Wednesday morning, three mothers who support the governor's policy testified that their children, some with serious illnesses, have had difficulty wearing masks. One of them, Ashley Benton of Leon County, said her daughter's pediatrician refused to sign a medical opt out, which is allowed under her school district's mask mandate.

“At this point, if I can't get medical opt out, I think I'm going to have to pull her out of school," Benton said. That could mean everything from homeschooling to transferring her child to another school.

Bhattacharya had complained that no stringent, randomized study has confirmed that masks work in school-aged children. The defense called St. Petersburg pediatric pulmonologist Anthony Kriseman, who testified it “would be ethically" difficult to conduct such a study.

“You'd have to somehow not let the children know who was wearing masks and who weren't. And you'd also have to potentially put children without masks into infectious situations," Kriseman said.

As for evidence Bhattacharya cited that masks decrease blood hemoglobin levels, suggesting difficulty breathing, an Italian study refuted that finding, Kriseman said. Their widespread use has also been proven effective in containing viral transmission among large populations, he added.

“I don't know that anybody's going to put down a black and white statement" concerning masks usefulness, “but this one comes pretty close," Kriseman said.

'Compassion and grace'

Jacob Oliva, chancellor of Florida's public schools, testified that officials detected no real difference between infection rates last year at schools that required face masks and those that did not, but that masks can interfere with learning, especially for students with special needs or in English as a second language course.

The department has long believed in extending education options to parents, Oliva said.

“Who know a child better than their parents?" he said.

Oliva testified that his department attempts to use “compassion and grace" in dealing with student health. Officials have made billions in federal COVID relief money available to pay for mitigation efforts in the classroom, and some districts have offered parents the option of placing their children in all-masked classrooms, he said.

However, the Phoenix has reported that the state Department of Education has still not used several billion dollars in federal funding that could go to schools.

The state no longer pays for distance learning, with kids at home following teachers' lessons via video feeds, because they didn't work well, Oliva said. Some virtual education remains possible via the Florida Virtual School and similar programs offered in some districts, he added.

He was asked what he would tell parents worried about the risk to their children from unmasked classmates.

“Those concerns are real," Oliva said.

“The thing I would always encourage those parents to do is meet with their principal, meet with their teacher, and find out what strategies they have in place to mitigate risk," he said.

His own son suffers asthma and severe allergies, Oliva added.

He tells the boy: “It's hard to control the behavior of others, but you know how to wash your hands; you know how to wear a mask; you know how to social distance. Worry about the actions that are within your purview. Because, ultimately, I want you to be a kid," he said.


Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

Now it's seven school districts defying Florida Gov. DeSantis' ban on mask mandates

The Leon County School District is the seventh in Florida to impose a mask mandate for schoolchildren, with exceptions only with documented medical evidence that it would harm students, in defiance of policy established by Gov. Ron DeSantis.

This article was originally published at Florida Phoenix

Superintendent Rocky Hanna made the announcement Sunday in a live video posted on the district's Facebook page. The new policy applies to Pre-K through grade eight, or kids too young to qualify for vaccinations, and takes effect on Monday, he said.

He indicated he made the decision on his own initiative, without involving the school board. That could shield its members from the punishment the DeSantis-controlled State School Board inflicted on Alachua and Broward counties when their school boards voted to take the same step — withholding of state school money in amounts equal to the officials' pay checks.

DeSantis claims that school boards taking this step — also including Hillsborough, Miami-Dade, Palm Beach, and Sarasota — are violating a state Department of Health emergency regulation and a state law called the Parent's Bill of Rights, which gives parent control over medical decisions for their children.

Hanna acknowledged the potential consequences for himself.

“Governor, I do have an obligation to uphold the laws of the state of Florida. I have a greater obligation, however, to protect the health, safety, and welfare of the children in Tallahassee and Leon County," Hanna said.

“Look, I don't believe that masks are necessarily the end-all be-all. But we know they make a difference. The vast majority of health-care experts tell us they make a difference," he said.

“I am in total favor of individual rights and freedoms and the rights of parents. However, I strongly believe that my rights end when they infringe on the rights of others," he continued. “Your rights end when that child's rights are infringed on."

The U.S. Centers for Disease Control and Prevention recommend universal indoor masking by all students aged 2 and older, staff, teachers, and visitors to K-12 schools, regardless of vaccination status, mainly to protect others from a person who may unknowingly be infected and contagious. The American Academy of Pediatrics also recommends masking in schools.

According to Hanna, during the first seven days of classes last week the district counted more than 245 positive cases, representing one-third of the total cases in all of last year. On Tuesday through Friday, it recorded average daily positive tests in the mid-40s. The single-day high last year was 19. As of Friday, more than 900 students were in quarantine.

“The numbers speak for themselves. It's time to make a change," Hanna said.

“The goal is to keep our schools open. However, if we continue down this path, I'm afraid we may have to look at other options, and the last thing I want to do is close our schools."

To Gov. DeSantis, Hanna said: “I ask you, governor, to please reconsider your position on this issue and to give local control back to school districts to do what's best for the children in our community."

He added: “Leaders should never allow pride or politics to cloud their better judgment. It is never too late to do the right thing."


Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

DeSantis goes nuclear on news report about COVID-19 therapy he's promoting

The DeSantis administration is pushing back big against an Associated Press report about investments by a major donor in a COVID-19 therapy that the governor is promoting heavily in appearances across the state.

This article was originally published at Florida Phoenix

Gov. Ron DeSantis himself, during a Wednesday news conference in Pembroke Pines, suggested a nefarious motive behind the report.

“It's important to point out because there's so much nonsense that gets put out there — there's a lot of misinformation put out, unfortunately, by a lot of corporate press: This treatment for patients is free. You come in and you get it," the governor said.

“Don't let anyone tell you that you're going to be charged thousands of dollars. That is a lie. That is a lie that is being disseminated for political purposes to try to dissuade people from seeking life-saving treatment. And, honestly, that's reprehensible."

Earlier, DeSantis spokeswoman Christina Pushaw mounted a vivid Twitter attack against “media-enabled Regeneron disinformation" that she said fueled rumors that people had to pay for the treatments.

The Phoenix could find no published reports documenting any such dissuasion. The governor's press office has not yet responded to a request for evidence.

The AP did report: “A Regeneron treatment costs more than $1,000, while a vaccine costs about $25."

It also reported: “The federal government is paying for the monoclonal antibody treatments and patients aren't being charged for the antibody cocktail."

Meawhile, Florida's Delta surge threatens to overwhelm hospitals and local school boards are rebelling against the governor's dictate that they cannot require students to wear masks while indoors if their parents or guardians object.

The AP report, published Wednesday, noted that the Citadel hedge fund has invested $15.9 million in Regeneron Pharmaceuticals Inc., citing U.S. Securities and Exchange Commission records. Ken Griffin, Citadel's CEO, has donated $10.75 million to the Friends of Ron DeSantis PAC during the past two years, the news organization reported.

Regeneron makes a monoclonal antibody treatment that has proven successful against COVID-19 if administered soon following an infection.

DeSantis, who opposes forced vaccination or mask-wearing in the fight against the virulent Delta strain of COVID, said Wednesday that a distribution network for the therapy would soon offer 300 doses per day at as many as 20 sites in the state. Doses are targeted at patients at high risk because of advanced age or underlying health conditions. He said Regeneron's product is most efficacious against Delta.

The AP story quoted Pushaw refuting social media buzz among Democrats suggesting something was untoward about the DeSantis-Griffin relationship:

“Claiming that there is somehow 'corruption' by promoting the baseless political narrative that Governor DeSantis supports Regeneron over COVID vaccines (completely false, but that is another topic) is not even logically consistent when you examine the SEC filing," Pushaw said in an email. “Citadel holds far more shares of Pfizer and Moderna than Regeneron."

DeSantis brought the matter up himself during his press conference:

“There's always people trying to put political agendas, partisan narratives, regardless of facts, trying to gaslight people, trying to pursue their own interests, even if it's not going to be helpful for people — even if it may dissuade someone from seeking a life-saving treatment," he said.

“This is no place for those phony narratives, for political posturing, or for partisanship."


Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

Is Ron DeSantis' policy on masks for schoolchildren even legal?

DeSantis policy on masks for schoolchildren: Is it even legal?

The Florida Constitution seems to make clear who runs local schools: “The school board shall operate, control, and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein."

However, Florida's new Parents' Bill of Rights, signed into law by Gov. Ron DeSantis this year, says the government “may not infringe on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health" of their child.

On Friday, the state departments of Education and Health issued rules to enforce that law, but that didn't resolve the tension over masks at school between local school boards and the governor and his executive branch as the COVID-19 pandemic continues and most schoolhouse doors open Tuesday.

Which leave the question: Is what the administration is doing strictly legal? Absent a direct court test, that's impossible to answer. To the extent that Florida's appellate courts have ruled on mask mandates more widely, they have delivered sharply diverging results.

Solid legal grounds?

Thus far, the new state rules have drawn one lawsuit, filed in the U.S. District Court for the Southern District of Florida on behalf of children with developmental disabilities, who are more susceptible to dangerous complications from infection.

The action alleges the rules would interfere with the kids' right to a safe education “in the most integrated and least restricted environment."

The complaint names DeSantis, the Department of Education, Education Commissioner Richard Corcoran, and eight local school boards. It claims violations of the federal Disabilities Education Act, the Americans with Disabilities Act, and the Rehabilitation Act.

“What this means, is that these kids with disabilities are entitled to learn and interact with all other children, receive the same education as all other children, and do so while being safe and returning home as safe and healthy as possible," the document continues.

“As governor of Florida, Ron DeSantis does not have the authority to threaten school districts with loss of funding if they protect their students with disabilities health and rights to be in an integrated learning environment," it asserts.

As for the school districts, one senator — Gary Farmer, a trial lawyer from Broward County — suggested last week they would be on solid legal ground if they tried to resist.

In a letter to Corcoran, he challenged the administration's authority to issue its rules.

“As neither the state Constitution nor statutes contemplate state-level authority on whether or not students, teachers, and staff wear masks, this is an operational issue which is the explicit responsibility of district school boards," Farmer wrote.

“As such, you should be aware that the rulemaking requested by Gov. DeSantis would violate our state Constitution."

Farmer argues in his letter that the state education bureaucracy lacked authority to issue the rules absent specific legislative authority. The bureaucracy certainly lacks authority to declare an emergency and skirt the normal rulemaking process, according to the senator.

The Florida Supreme Court, he noted, has ruled that to declare an emergency the state must express an “factually explicit and persuasive" explanation.

In fact, the senator wrote, the governor's entire basis for his position, including the suggestion that wearing face masks can be dangerous for children, is “not only baseless" but contradictory to the widely accepted and proven fact that masks are a necessary measure for the effective mitigation of COVID-19."

As mentioned above, existing precedents present at bests a mixed picture of the state of the law.

In August 2020, Leon County Circuit Judge Charles Dodson cited the constitutional provision governing local authority in blocking Corcoran from ordering all schools opened for that school year. The Florida Education Association had sued to block Cororan's order.

“The order is unconstitutional to the extent it arbitrarily disregards safety, denies local school boards decision making with respect to reopening brick and mortar schools, and conditions funding on an approved reopening plan with a start date in August," Dodson wrote at the time.

However, the 1st District Court of Appeal, an intermediate appellate court, later allowed Corcoran's order to take effect. The union subsequently dropped its case.

In those court proceedings, the administration argued it was attempting to balance the need for a safe, high quality education, given that many children had difficulty adjusting to COVID restrictions and school closures.

Attorney David Wells, arguing for the state, defended threatening districts' state funding at the time. “There is no question about that. Not going to dance around it. That is absolutely right," he told Dodson about the administration's determination on that score.

'Dikats,' 'fiats'

The 1st DCA also came down hard against mask mandates imposed by the Alachua County Commission. In a ruling in June, Judge A.S. Tanenbaum called them “diktats" and “fiats." He invoked the Florida Constitution's right to be left alone.

“The Supreme Court has construed this fundamental right to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect not to be forced by the government to put something on his own face against his will," Tannenbaum wrote.

That's the state of the law within the appellate district, which sprawls across the breadth of North Florida.

However, it is not the law within the 4th DCA's jurisdiction, which covers Broward, Indian River, Martin, Okeechobee, Palm Beach, and St. Lucie counties. In January, that court upheld a mask ordinance in Palm Beach County, reasoning that the county had a rational basis to require masks to protect public health.

During a public meeting last week, Jon Phillips, an attorney for the city of Jacksonville who advises the Duval school board, warned that the 1st DCA ruling gives districts within the court's jurisdiction (like Duval) “a hard row to hoe" legally.

“If you only have to show a rational basis to justify your mandate, you're likely to win, because you just have to have a reason for doing it that makes some sense. Whereas, if you subject it to strict scrutiny, then it becomes the same test that's applied when you have a mandate that would discriminate against Black people, for example," he said.

Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

DeSantis policy on masks for schoolchildren might not even be legal

The Florida Constitution seems to make clear who runs local schools: “The school board shall operate, control, and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein."

However, Florida's new Parents' Bill of Rights, signed into law by Gov. Ron DeSantis this year, says the government “may not infringe on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health" of their child.

This article was originally published at Florida Phoenix

On Friday, the state departments of Education and Health issued rules to enforce that law, but that didn't resolve the tension over masks at school between local school boards and the governor and his executive branch as the COVID-19 pandemic continues and most schoolhouse doors open Tuesday.

Which leave the question: Is what the administration is doing strictly legal? Absent a direct court test, that's impossible to answer. To the extent that Florida's appellate courts have ruled on mask mandates more widely, they have delivered sharply diverging results.

Solid legal grounds?

Thus far, the new state rules have drawn one lawsuit, filed in the U.S. District Court for the Southern District of Florida on behalf of children with developmental disabilities, who are more susceptible to dangerous complications from infection.

The action alleges the rules would interfere with the kids' right to a safe education “in the most integrated and least restricted environment."

The complaint names DeSantis, the Department of Education, Education Commissioner Richard Corcoran, and eight local school boards. It claims violations of the federal Disabilities Education Act, the Americans with Disabilities Act, and the Rehabilitation Act.

“What this means, is that these kids with disabilities are entitled to learn and interact with all other children, receive the same education as all other children, and do so while being safe and returning home as safe and healthy as possible," the document continues.

“As governor of Florida, Ron DeSantis does not have the authority to threaten school districts with loss of funding if they protect their students with disabilities health and rights to be in an integrated learning environment," it asserts.

As for the school districts, one senator — Gary Farmer, a trial lawyer from Broward County — suggested last week they would be on solid legal ground if they tried to resist.

In a letter to Corcoran, he challenged the administration's authority to issue its rules.

“As neither the state Constitution nor statutes contemplate state-level authority on whether or not students, teachers, and staff wear masks, this is an operational issue which is the explicit responsibility of district school boards," Farmer wrote.

“As such, you should be aware that the rulemaking requested by Gov. DeSantis would violate our state Constitution."

Farmer argues in his letter that the state education bureaucracy lacked authority to issue the rules absent specific legislative authority. The bureaucracy certainly lacks authority to declare an emergency and skirt the normal rulemaking process, according to the senator.

The Florida Supreme Court, he noted, has ruled that to declare an emergency the state must express an “factually explicit and persuasive" explanation.

In fact, the senator wrote, the governor's entire basis for his position, including the suggestion that wearing face masks can be dangerous for children, is “not only baseless" but contradictory to the widely accepted and proven fact that masks are a necessary measure for the effective mitigation of COVID-19."

As mentioned above, existing precedents present at bests a mixed picture of the state of the law.

In August 2020, Leon County Circuit Judge Charles Dodson cited the constitutional provision governing local authority in blocking Corcoran from ordering all schools opened for that school year. The Florida Education Association had sued to block Cororan's order.

“The order is unconstitutional to the extent it arbitrarily disregards safety, denies local school boards decision making with respect to reopening brick and mortar schools, and conditions funding on an approved reopening plan with a start date in August," Dodson wrote at the time.

However, the 1st District Court of Appeal, an intermediate appellate court, later allowed Corcoran's order to take effect. The union subsequently dropped its case.

In those court proceedings, the administration argued it was attempting to balance the need for a safe, high quality education, given that many children had difficulty adjusting to COVID restrictions and school closures.

Attorney David Wells, arguing for the state, defended threatening districts' state funding at the time. “There is no question about that. Not going to dance around it. That is absolutely right," he told Dodson about the administration's determination on that score.

'Dikats,' 'fiats'

The 1st DCA also came down hard against mask mandates imposed by the Alachua County Commission. In a ruling in June, Judge A.S. Tanenbaum called them “diktats" and “fiats." He invoked the Florida Constitution's right to be left alone.

“The Supreme Court has construed this fundamental right to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect not to be forced by the government to put something on his own face against his will," Tannenbaum wrote.

That's the state of the law within the appellate district, which sprawls across the breadth of North Florida.

However, it is not the law within the 4th DCA's jurisdiction, which covers Broward, Indian River, Martin, Okeechobee, Palm Beach, and St. Lucie counties. In January, that court upheld a mask ordinance in Palm Beach County, reasoning that the county had a rational basis to require masks to protect public health.

During a public meeting last week, Jon Phillips, an attorney for the city of Jacksonville who advises the Duval school board, warned that the 1st DCA ruling gives districts within the court's jurisdiction (like Duval) “a hard row to hoe" legally.

“If you only have to show a rational basis to justify your mandate, you're likely to win, because you just have to have a reason for doing it that makes some sense. Whereas, if you subject it to strict scrutiny, then it becomes the same test that's applied when you have a mandate that would discriminate against Black people, for example," he said.


Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.

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