State appeal puts mask-mandate ruling on hold

Florida Governor Ron DeSantis arrives at Top of The World in Ocala, Florida, Friday, March 5, 2021, to give an update on COVID vaccinations. [Cyndi Chambers/Correspondent] 2021

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Posted September 3, 2021 | Jim Saunders, News Service of Florida

Florida Governor Ron DeSantis arrives at Top of The World in Ocala in this March file photo. [Cyndi Chambers/Correspondent]

TALLAHASSEE – An appeal filed Thursday by Gov. Ron DeSantis’ administration put on hold a Leon County circuit judge’s ruling against the state in a battle over school mask mandates – but attorneys for a group of parents quickly requested that the ruling be allowed to take effect.

The legal moves came hours after Circuit Judge John Cooper issued a written judgment that said DeSantis overstepped his constitutional authority in a July 30 executive order that sought to prevent school districts from requiring students to wear masks amid the COVID-19 pandemic.

DeSantis administration lawyers filed a notice of appeal shortly after 5 p.m. Thursday that was an initial step in asking the 1st District Court of Appeal to overturn Cooper’s decision. Under legal rules, the notice of appeal triggered an automatic stay – effectively meaning that Cooper’s decision was put on hold while the appeal moves forward.

But attorneys for parents who challenged the executive order fired back about four hours later by filing a motion requesting that Cooper issue an order vacating the automatic stay. If the request is granted, that could keep his ruling in effect during the appeal.

As is common, the notice of appeal did not outline arguments that the DeSantis administration will make at the Tallahassee-based appeals court.

But in the motion to vacate the stay, plaintiffs’ attorneys pointed to “harm” for students and school districts if DeSantis’ executive order remains in effect during the appeal. The state Department of Education has started withholding some money from school districts that have bucked the DeSantis order and a related state Department of Health rule, which required that parents be allowed to opt out of student mask requirements.

“If the automatic stay remains in place, plaintiffs will continue to face the increased risk of the delta variant infection, local schools boards will continue to face penalties from defendants from their (state officials’) enforcement of the executive order, and local school boards will be faced with the choice of being subject to penalties issued by defendants or protecting plaintiffs, students and school staff by having the ability to issue mandatory mask mandates without parental opt-out,” the motion said.

After Cooper issued a verbal ruling last week, the DeSantis administration had made clear it would appeal after the circuit judge issued a written judgment. DeSantis expressed confidence the appeals court, which is filled with Republican appointees, will side with him.

“I think it (Cooper’s decision) is going to be something that’s going to be very vulnerable to being overruled,” the governor said during an appearance Wednesday.

Another Leon County circuit judge last year ruled against DeSantis and Education Commissioner Richard Corcoran in a lawsuit challenging a state move to require school campuses to be open during the pandemic. The 1st District Court of Appeal ultimately reversed the circuit judge’s decision and sided with DeSantis.

DeSantis contends that parents should be able to decide whether their children wear masks at school. His executive order cited a new state law known as the “Parents’ Bill of Rights” that deals with parents’ right to control health and educational decisions for their children.

But with the delta variant of the coronavirus causing a massive increase in COVID-19 cases during the past two months, opponents argue that school districts should be able to require students to wear masks and that DeSantis went too far with the executive order.

The lawsuit, filed Aug. 6, named as defendants DeSantis, Corcoran, the Department of Education and the State Board of Education.

In his ruling Thursday, Cooper also cited the Parents Bill of Rights and wrote that the law “expressly gives governmental entities, such as school boards, the right to adopt policies regarding health care and education of children in schools, even if the policies affect a parents’ rights to make decisions in these areas.”

Cooper also ruled that Corcoran and the Department of Education violated the law by imposing financial penalties on districts that enact mask mandates without giving the districts due process. The state has started withholding money equal to the salaries of school board members.

“The law of Florida does not permit the defendants to punish school boards, its members, or officials for adopting face mask mandates with no parental opt-outs if the schools boards have been denied their due process rights under the Parents’ Bill of Rights to show that this policy is reasonable and meets the requirements of the statute,” Cooper wrote.

Despite the threat of financial penalties, 13 school districts as of Thursday had moved forward with student mask mandates that allow exceptions only when parents present doctors’ notes. Those districts are Alachua, Broward, Miami-Dade, Palm Beach, Orange, Hillsborough, Duval, Leon, Brevard, Indian River, Sarasota, Lee and Volusia.

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