Florida appeals court reinstates stay, allows school mask-mandate ban to continue

Students in a Polk County, Fla. classroom, August of 2021 (FOX / file)

Pointing to "serious doubts" about the lawsuit, a Florida appeals court Friday put on hold a circuit judge’s ruling that said Gov. Ron DeSantis overstepped his constitutional authority in a July 30 executive order aimed at preventing school mask mandates.

A three-judge panel of the 1st District Court of Appeal reinstated a stay of the ruling by Leon County Circuit Judge John Cooper, clearing the way for the state to try to block school districts from requiring students to wear masks during the COVID-19 pandemic.

The decision was a blow to a group of parents who filed the lawsuit and argued that children would be harmed by DeSantis’ executive order. While the panel said it would issue a full written explanation later, the one-paragraph order Friday expressed skepticism about the parents’ case.

"Upon our review of the trial court’s final judgment and the operative pleadings, we have serious doubts about standing, jurisdiction and other threshold matters," the order said. "These doubts significantly militate against the likelihood of the appellees’ (parents’) ultimate success in this appeal."

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DeSantis said Wednesday he expected the stay to be reinstated and to ultimately win the lawsuit.

"But what we found is, you know, in the trial courts in Tallahassee, state and federal, we typically lose if there's a political component to it, but then in the appeals court, we almost always win," the governor said.

The order was part of a flurry of legal activity after a Sept. 2 ruling by Cooper against DeSantis, Education Commissioner Richard Corcoran, the Department of Education and the State Board of Education. The DeSantis administration appealed that ruling, a step that led to an automatic stay while the case was pending at the appeals court.

But the parents’ attorneys asked Cooper to vacate the stay, a request that he granted Wednesday. The DeSantis administration quickly returned to the appeals court with an emergency motion to reinstate the stay --- which led to Friday’s order.

In their motion to reinstate the stay, attorneys for the state argued that they will ultimately prevail in the underlying issues in the lawsuit. They contended, in part, that Cooper violated constitutional separation of powers and delved into policy and political issues about whether schools should be allowed to require masks.

"The adequate level of safety in schools and other public settings is a political question reserved entirely for elected representatives who are publicly accountable," the motion said. "Therefore, in finding irreparable harm (from a stay of his ruling), the trial court should not have substituted its own health policy preferences or risk assessments for those of the governor or, more importantly, the state health officer and surgeon general."

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But in a response Thursday night, attorneys for the parents said a potential stay would create "the very real prospect of irreparable harm" and pointed to the highly contagious delta variant of the coronavirus that has caused a spike in COVID-19 cases during the past two months.

"The evidence clearly shows that children have become infected exponentially since the spread of the delta variant this summer," the filing said. "This daily possible exposure to a more contagious COVID strain --- the delta variant --- in a school setting which allows parents to opt-out their children from wearing masks without any medical reason is an irreparable harm to appellees’ (the plaintiffs’) children. Appellees’ children have the option of either staying at home to avoid COVID, or they must go to school, which schools cannot require masks pursuant to the executive order, and expose themselves to COVID on a daily basis. Either option presents an irreparable harm to appellees’ children."

The parents filed the lawsuit Aug. 6, about a week after DeSantis issued the executive order. Following the executive order, the Florida Department of Health issued a rule that said parents should have the right to opt out of student mask requirements.

While DeSantis argues parents should be able to decide whether their children wear masks, 13 districts bucked the executive order and Department of Health rule, only allowing students to forgo masks if their parents present documented medical reasons. That has led to Corcoran pursuing financial penalties against districts that have approved such policies.

In siding with the parents, Cooper in the Sept. 2 ruling said DeSantis overstepped his authority, He also cited a new state law known as the "Parents’ Bill of Rights," which deals with parents’ right to control health and educational decisions for their children. Cooper said Corcoran and the Department of Education improperly imposed financial penalties on districts that enacted mask mandates without giving the districts due process.

"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.

In the motion to reinstate the stay Wednesday night, the state’s lawyers pushed back against the judge’s conclusions involving the Parents’ Bill of Rights.

"According to its plain terms, the Parents’ Bill of Rights limits governmental authority and protects the inherent rights of parents," the motion said. "Thus, the governor could not possibly have violated the Parents’ Bill of Rights by protecting parents’ rights. Most assuredly, the Parents’ Bill of Rights does not grant any authority to local school districts that did not previously exist."

Friday’s order was issued by Judges Stephanie Ray, Harvey Jay and Adam Tanenbaum. Ray and Jay were appointed to the Tallahassee-based appeals court by former Gov. Rick Scott, while Tanenbaum was appointed by DeSantis.