Hours after a Leon County circuit judge allowed school districts to continue student mask requirements, Gov. Ron DeSantis’ administration Wednesday night filed an emergency motion asking an appeals court to reinstate a stay.
The 41-page motion seeks to put on hold a Sept. 2 ruling by Circuit Judge John Cooper that said DeSantis overstepped his constitutional authority in an executive order aimed at preventing districts from requiring students to wear masks during the COVID-19 pandemic.
Cooper on Wednesday went further by lifting an automatic stay that had been triggered when the DeSantis administration appealed the Sept. 2 ruling to the 1st District Court of Appeal. The motion filed Wednesday night requested that the Tallahassee-based appeals court reimpose the stay while the underlying battle about the Sept. 2 ruling moves forward.
The appeals court gave a group of parents who filed the lawsuit until 8 p.m. Thursday to file a response to the motion about reinstating the stay.
In the motion, filed shortly before 7:30 p.m. Wednesday, attorneys for DeSantis, Education Commissioner Richard Corcoran, the Florida Department of Education and the State Board of Education argued that they will ultimately prevail in the lawsuit.
The motion contends, in part, that Cooper’s ruling 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.”
During a hearing Wednesday morning 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.
A group of parents filed the lawsuit Aug. 6 amid a fierce debate across the state about whether students should be required to wear masks as the highly contagious delta variant of the coronavirus has caused a surge in COVID-19 cases, hospitalizations and deaths.
After DeSantis issued the July 30 executive order, the state Department of Health issued a rule that said parents should have the right to opt out of student mask requirements. The order and the rule are in line with DeSantis’ argument that parents should have a choice about children wearing masks.
Some school districts, however, have bucked the order and rule, only allowing students to forgo masks if their parents present documented medical reasons. Corcoran has pursued 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 enact 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.
But in the motion filed 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.”
The state’s request for the appeals court to reimpose the stay had been expected after Cooper’s decision earlier Wednesday on vacating the automatic stay. During the Wednesday hearing, attorneys for the parents pointed to a need to allow school districts to require masks while the legal battle continues.
“Allowing for a stay for days, for weeks or months during the appellate process, will mean more sick and dead children in Florida schools,” said Charles Gallagher, an attorney representing the parents. “Vacating the stay will permit (school) boards to mandate masks as a public health measure and save lives.”