An appeals court says it has “serious doubts” about a circuit court ruling that says Gov. Ron DeSantis overstepped his authority in an executive order banning school districts from requiring students wear face coverings. The appellate court has put back a stay on a ruling that allowed the districts to keep their mask mandates. The plaintiffs in the case—a group of parents, had argued lifting the stay would cause “irreparable harm” to their children—kids who are too young to be vaccinated.
“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,” wrote the plaintiffs.
The legal back-and-forth came hours after a Leon County judge lifted an automatic stay on his own ruling that effectively says the state has to allow districts to defend their mask policies before they can be punished.
During a hearing on the stay Circuit Judge John Cooper criticized the state attorney’s for misrepresenting his original ruling on mask mandates.
“Essentially what the court said was, a party passing a regulation can intrude upon a parent’s fundamental rights only when it’s reasonable and necessary reason to achieve a compelling state interest. That’s not an unusual interpretation—because Mr. Able your firm has filed a lawsuit alleging the same thing.”
Michael Able is the attorney representing the state and the person defending Governor Ron DeSantis, who has argued school districts are violating the parents bill of rights with their mask mandates.
The state has used that law as a basis for an executive order, and later a Department of Health emergency rule that says parents should be able to opt out of school mask mandates. Last month, Cooper sided with a group of parents who argued that those rules puts their kids at risk of contracting the coronavirus because they’re too young to be vaccinated. Cooper sided with the parents—and issued an injunction preventing the state from enforcing only part of the law.
Since then, the Governor has been on the offensive, doubling down on his position that masks should be optional for students in school. DeSantis has also taken swipes at the second judicial circuit for previous rulings against him—like one last year on school re-openings:
“It was not a good ruling obviously and it got really strongly reversed on appeal so I think we’ll see something similar here.”
Able, in arguing to keep the stay on the school mask ruling in place, charged the court is substituting its own policy preferences for those of the state, a charge that drew a rebuke from the judge.
“Mr. Able, this court didn’t do that. What this court did is say that the Parents Bill of Rights…must be enforced fully. Not partly. That’s what this court held in the final judgment," Cooper said.
Cooper also noted previous rulings where he’s sided with the state: such as rulings favoring former Governors Rick Scott and Jeb Bush, and a recent one against counties on a constitutional amendment on elected sheriffs.
“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.”
The issue over school masking has only grown more contentious. Even as this lawsuit makes its way to the appellate courts—there are others still pending in federal and administrative law court. The federal government has also jumped into the fray—announcing it will offer grants to school districts that are being financially punished over their COVID-19 mitigation efforts. Florida is already fining at least two districts for requiring students to wear masks. In the weeks since Cooper’s ruling—there are now at least 13 Florida School Districts violating the Governor’s executive order.
