DeSantis gets a win: Appeal court allows mask policy that lets parents decide

Panel rules DOE can punish defiant districts until it says otherwise

By: - September 10, 2021 2:52 pm

Florida First District Court of Appeal in Tallahassee. Photo by Michael Rivera, Wikimedia Commons

A state appeal court has freed the DeSantis administration to punish school districts that insist on strict face-masking policies against COVID-19 in defiance of the governor’s insistence that parents be allowed to opt out for their children.

A three-judge panel of the First District Court of Appeal voted unanimously to overrule Leon County Circuit Judge John Cooper, who had halted enforcement of Gov. Ron DeSantis’ policy.

The judges cited the automatic stay that takes effect under Florida law when a trial judge strikes down a state law or regulation. The stay, triggered when the state appeals a trial court ruling, means the law or regulation remains in effect pending a decision in the appeal.

“When a public officer or agency seeks appellate review, which is the case here, there is a presumption under the rule in favor of a stay, and the stay should be vacated only for the most compelling of reasons,” judges Harvey Jay, Stephanie Ray, and A.S. Tanenbaum said in an order issued Friday.

“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. These doubts significantly militate against the likelihood of the appellees’ ultimate success in this appeal. Given the presumption against vacating the automatic stay, the stay should have been left in place pending appellate review,” they said.

DeSantis press secretary Christina Pushaw hailed the development on Twitter.

“Dem media activists framed the initial ruling as ‘CRUSHING DEFEAT FOR DESANTIS’ even though everyone knew the appeal was coming,” she posted. “Now, the same people will either decline to report on this victory or frame it as ‘NBD, just a temporary setback’ for forced-masking.”

Cooper ruled on Aug. 27 that DeSantis abused his authority in ordering the state Department of Health and Department of Education to issue and enforce a regulation requiring districts to allow parents to opt out for their children from mask mandates.

Twelve districts and a lab school have insisted on requiring documentation of a medical excuse for an exemption and face a potential loss of state funds under the DeSantis policy.

These districts, the judge said, are entitled to defend their policies before facing punishments.

Cooper signed a written version of his ruling on Sept. 2, and the DeSantis administration immediately filed a notice of appeal with the First District, triggering the automatic stay. Cooper lifted that stay on Wednesday, ruling that the balance of harm favored the parents who brought the lawsuit, who feared their children in public schools risked infection under the policy.

In urging the First DCA to reinstate the stay, administration attorneys cited a First District ruling last October upholding the administration’s plan to reopen schools on the grounds that courts are not competent to make policy decisions regarding school safety.

“The adequate level of safety in schools and other public settings is a political question reserved entirely for elected representatives who are publicly accountable,” they argued in their brief.

“Therefore, in finding irreparable harm, 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.”

They also argued that the parents lacked standing to bring the case at all — that is, had suffered a harm the courts have jurisdiction to address. Only the school districts had standing to fight “the alleged usurpation” of their authority to make health rules, they said.

Attorney for the parents noted in their own brief that Cooper strenuously rejected the idea that he was substituting his policy preference for the governor. Instead, the judge said, the administration had violated Florida’s Parents’ Bill of Right by not allowing districts to defend their own policies, which that law requires. Doing so, Cooper ruled, amounted an unconstitutional violation by DeSantis of what the Legislature ordered.

“Appellants are not entitled to deference provided by the separation of powers doctrine when their actions are not authorized by the Constitution or the Legislature,” the parents’ lawyers wrote.

“The trial court found that appellants did not provide any convincing authority in the Constitution or any statute, other than citing to portions of the Parents’ Bill of Rights, that benefited their position. The trial court found appellants relied only on the first portion of the statute that prohibits infringement on parents’ rights, but ignored 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 and that the action in narrowly tailored and is not otherwise severed by a less restrictive means,” they continued.

“The plenary power to operate and control local schools is not a newly conferred right to school boards, it is the constitutional grant of authority that has existed long before the Parents’ Bill of Rights. Constitutional powers cannot be encumbered by statute. Students in Florida have a fundamental right to education. School boards have constitutional authority and obligation to provide for safe and effective environments. The enforcement of the order directed by the governor invades the Constitutional authority of school boards and encroaches on the fundamental rights of students.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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