Judge finalizes ruling upholding school mask mandates; DeSantis appeals order

TALLAHASSEE — A court ruling that says Gov. Ron DeSantis and his administration acted “without legal authority” when enforcing a ban against strict mask mandates in schools went into effect Thursday, nearly a week after it was issued. Hours later, DeSantis appealed the order.

In his 37-page ruling, Leon County Circuit Court Judge John C. Cooper said that the governor, the Department of Education and State Board of Education improperly applied the Parents Bill of Rights. He concluded they have no authority to punish school districts that have demonstrated their mask policy “is reasonable” and achieves “a compelling state interest.”

“By passing the Parents’ Bill of Rights, the Florida Legislature necessarily recognized the importance of parental rights. But it also recognized that parents’ rights are not immune to some reasonable limitation depending upon safety and reasonableness and compelling state need regarding health care or condition of the child,” Cooper wrote.

The order, announced Friday, Aug. 27, and now final, set into motion an appeal by DeSantis in the polarizing legal battle taking place in both state and federal court. The governor says he is standing by the individual rights of parents while school district leaders say they are protecting the collective health of school children in the face of the surging delta variant of the coronavirus.

The ruling could delay efforts by the Florida Department of Education and the governor to punish school officials for adopting face mask mandates with no parental opt-outs other than those for medical reasons against their orders.

Lawyers for DeSantis took the case to the 1st District Court of Appeal in Tallahassee on Thursday, seeking a reversal of Cooper’s ruling. The judge’s order was automatically stayed by the appeal.

In the meantime, the plaintiffs want the state to restore the money it has already withheld from Broward and Alachua county school districts now that the ruling is in effect, said Charles Gallagher, the lead attorney for parents who sued the state.

Broward and Alachua counties were the first two school districts to impose a mandatory mask requirements for students returning to school and the Board of Education ordered Education Commissioner Richard Corcoran to pursue penalties.

Earlier this week, Corcoran announced the state had begun withholding the equivalent of the school board member salaries in those districts as punishment for what he viewed was a violation of state law.

He made the announcement despite the judge’s ruling days earlier that DeSantis and Corcoran had no authority to take such action.

There are now 13 school districts in Florida, which comprise more than a majority of all public school children, that have imposed mask mandates. Since Monday, Lee and Volusia counties have joined the other districts, which include Miami-Dade, Palm Beach, Hillsborough, Duval and Orange counties.

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Despite the state’s threats, the school districts stood by their mask mandates. They argue that they are following the state law by giving parents who can show a medical need the opportunity to have their child excluded from their universal mask mandate policy. They say that the Constitution also requires them to protect the health of students, which includes containing the spread of a deadly virus.

But the governor and education officials claim these districts are violating the Parents Bill of Rights, a new statute which took effect July 1.

The law says the state may not “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.”

Cooper concluded that local school boards can enforce strict mask mandates as long as they follow the law in full but, he said, state officials improperly invoked and selectively enforced the Parents Bill of Rights, making the governor’s actions therefore “arbitrary and capricious.”

The judge ruled that the state, which relied on the law as its core argument, focused “only on the first portion” of the law — the part that prohibits infringement on parents’ rights.

He said the lawyers for the state, however, were “ignoring the remaining portion of the section which provides that infringement may occur if the action is reasonable and necessary to achieve a compelling state interest” if that action is “narrowly tailored and is not otherwise served by a less restrictive means.”

“In plain English, this law says that the government cannot interfere with parental rights regarding education and health care unless there is a reasonable basis to do so and that the remaining elements [of the Parents Bill of Rights] are met,’’ Cooper wrote.

Cooper also concluded that any assertion that the state has the authority to punish school districts “is incorrect because the Parents’ Bill of Rights does not ban school board face mask mandates ... even if a parent disagrees with the policy.”

“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.

DeSantis last week said the ruling was based on “incoherent justifications.”

Cooper noted that, unlike last year when the governor was unsuccessfully challenged for ordering schools to re-open, this year he had to draw his authority from the state law because he had allowed the COVID-19 state of emergency to lapse.

When DeSantis issued the executive order that led to the state’s mask rules, he did not have the authority to overrule local school districts, Cooper said.

Cooper also said that the governor violated the separation of powers provisions of the state Constitution when he ordered the Florida Department of Health and the Department of Education “to enforce a blanket ban of mask mandates without a parental opt-out.”

“The Defendants have not shown any convincing authority in the Constitution or statute,’’ he wrote “Thus, the Executive Order and the actions taken as a result are without authority and are null and void.”

Cooper cited Corcoran’s April 14, 2021, memorandum to school superintendents in which he asked districts that had mandatory mask requirements to “revise their policy to be voluntary.” Cooper concluded that the memo “was focusing on the former less infectious form of COVID.”

Gallagher said it was “very uncommon” for Corcoran to defy the judge’s order just because a final judgment had not been filed in court.

Typically, when a judge says he will make an oral ruling, “and they are waiting for a written announcement, they don’t go ahead and do things,’’ he said. “They do what the court said. You don’t have this jockeying and strategic moves.”

However, Attorney General Ashley Moody on Wednesday sided with fellow Republicans DeSantis and Corcoran, saying school districts must comply with the administration’s rule “unless and until the judiciary declares them invalid.”

The Associated Press contributed to this report.