For now, DeSantis order on school masks will stand, appeal court rules

TALLAHASSEE — Gov. Ron DeSantis and his administration won approval on Friday to reinstate a hold on a Leon County judge’s ruling that said the state could not enforce a ban on strict mask mandates in schools, as the court battle continues.

A three-judge panel of the 1st District Court of Appeal pointed to “serious doubts” about a parent-led lawsuit that contends the governor overstepped his authority when issuing an executive order that aimed to bar strict mask mandates in schools.

“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 states. “These doubts significantly militate against the likelihood of the appellees’ [parents] ultimate success in this appeal.”

The order means that, pending the outcome of an appeal, the state can continue to punish school officials who impose mask mandates without a parent opt-out.

“We are disappointed by the ruling and will be seeking pass-through jurisdiction of the Supreme Court of Florida. With a stay in place, students, parents and teachers are back in harm’s way,” said Charles Gallagher, the lead attorney for the group of parents who brought the case to court.

DeSantis responded to the appellate court’s ruling on Twitter, by saying: “No surprise here — the 1st DCA has restored the right of parents to make the best decisions for their children. I will continue to fight for parents’ rights.”

The latest court skirmish

It is the latest twist in a legal battle over school mask mandates as 13 Florida school districts continue to defy the state’s mask orders by imposing strict masking requirements.

So far, the state has begun withholding funds equivalent to the monthly salaries of school board members in Broward and Alachua counties and is in the midst of investigating other districts for non-compliance.

The state’s financial penalties are likely to be offset by federal dollars. President Joe Biden’s administration on Thursday announced the creation of a new grant designed specifically to cover any fines or withholding of funds that school districts face because of their mask rules.

The parents filed the lawsuit Aug. 6, about a week after DeSantis issued an executive order that prompted the Florida Department of Education and the Florida Department of Health to set rules that said parents must be allowed to opt out of masking requirements.

After a four-day trial, Leon County Circuit Judge John Cooper concluded the governor and his administration acted “without legal authority” when banning mask mandates without a parent opt out. He said the state improperly drew its authority for the rules from the Parents’ Bill of Rights, a law DeSantis signed into law in June.

That law says the state is not allowed to “infringe on the fundamental rights of a parent” to direct the upbringing, education, healthcare, and mental health of a child “without demonstrating that such action is reasonable and necessary to achieve a compelling state interest.”

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Cooper said defendants in the case used the first half of the statute but not the second part when they issued their orders and enforced the mask mandate ban.

Cooper said “everybody” has to comply with the laws passed by the Florida Legislature in full, not partially, and said the state could not take action “which violated the Florida Parents’ Bill of Rights.”

In other words, Cooper ruled the state could not punish school districts who impose strict mask mandates if they demonstrate their policy is “reasonable” and necessary to achieve a “compelling state interest.”

‘We always win’ on appeal

The DeSantis administration appealed that ruling hours after it went into effect. The move 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 was granted on Wednesday.

After the Wednesday decision, attorneys for the state quickly filed an emergency motion to reinstate the stay with the appeals court. The three-judge panel granted the request on Friday, and said a written order explaining the decision will follow.

In its motion to reinstate the stay, attorneys for the state argued that Cooper’s ruling violated constitutional separation of powers and delved into a “political question for elected representatives who are publicly accountable.”

“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.”

During a hearing Wednesday in which Cooper vacated the automatic stay, the judge sought to dispel such arguments about his ruling. He asserted he made decisions in the mask lawsuit and other cases based on his interpretation of laws and listed times in which he has ruled in favor of governors.

“If you look at my record, it’s not somebody who runs all over the place, ruling against the governor. What it is, I think, is a record of somebody who tries to figure out what the law is and rule according to the law. Because that’s my job. I’m not a policymaker,” Cooper said.

DeSantis has also claimed there is a “political component” to rulings issued by trial courts in Tallahassee.

“What we found is, in trial courts in Tallahassee, state and federal, we typically lose if there’s a political component to it,” DeSantis said during a news conference in Palm Coast on Wednesday. “But then in the appeals court we always win.”

The News Service of Florida contributed to this report.

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