DeSantis to Appeal After Judge Rules Executive Order Unconstitutional

By Jannis Falkenstern
Jannis Falkenstern
Jannis Falkenstern
Jannis Falkenstern is an Epoch Times reporter who covers the state of Florida.
August 29, 2021 Updated: August 29, 2021

PUNTA GORDA, Fla.— Florida Gov. Ron DeSantis plans to appeal after a judge ruled that his executive order to block school mask mandates is unconstitutional.

Leon County Judge John Cooper ruled on Friday that the state could not sanction local school boards that require masks to prevent the spread of COVID-19, namely the Delta variant, on school property.

The judge said that DeSantis’s executive order interpreted the “Parents’ Bill of Rights” that was signed into law in July to mean he could ban mask mandates in schools.

“This orphan statute does not support a statewide order or any action interfering with the constitutionally provided authority of local school districts to provide for the safety and health of children, based on the unique facts on the ground,” Cooper said.

A lawsuit was filed early August by parents and Hillsborough, Pinellas, Alachua, and Palm Beach County school boards that were opposed to the governor’s order banning school districts from imposing mask mandates unless parents wanted to opt out by a written statement. The suit maintained that the executive order violated a section of the state Constitution that required providing a “uniform, efficient, safe, secure and high-quality system” of public schools. The judge agreed and said they had a legal right to sue, thus overruling the state’s arguments.

The initial complaint made by St. Petersburg attorney Charles Gallagher argued that the governor’s order “impairs the safe operation of schools.” In the complaint, he wrote that the governor’s order took away “constitutional powers to operate, supervise and control schools” in their respective districts.

The DeSantis administration came out swinging after the judges decision was handed down.

“We are immensely disappointed that the ruling issued today by the Second Judicial Circuit discards the rule of law,” Jared Ochs, Director of Communications and External Affairs for the Florida Department of Education said Friday. “This decision conflicts with basic and established rights of parents to make private health care and education decisions for children.”

“We will continue to fight to make sure every child has access to education. We are committed to the fundamental rights of parents and will push forward on appeal to ensure that this foundation of democracy is upheld.”

DeSantis’s communication director, Taryn Fenske, said there were no real surprises in today’s decision.

“It’s not surprising that Judge Cooper would rule against parents’ rights and their ability to make the best educational and medical decisions for their family, but instead rule in favor of elected politicians,” Fenske said Friday. “This ruling was made with incoherent justifications, not based in science and facts—frankly not even remotely focused on the merits of the case presented.”

“We are used to the Leon County Circuit Court not following the law and getting reversed on appeal, which is exactly what happened last year in the school reopening case,” Fenske added. “We will continue to defend the law and parents’ rights in Florida and will immediately appeal the ruling to the First District Court of Appeals, where we are confident we will prevail on the merits of the case.”

Cooper said that he relied on Florida Supreme Court cases from 1914 and 1939 and the Separation of Powers Act to make his decision, as well as data presented in court from the Centers for Disease, Control and Prevention. He added that the Delta variant that is plaguing Florida as well as other states played a pivotal role in his decision.

“The delta variant represents a higher risk to children than the previous form,” he said. “We had a less dangerous form of the virus last year. As the facts change on the ground, the need for different measures changes.”

Cooper also addressed the Parents’ Bill of Rights while making his decision and said it does not ban mask mandates and does not “authorize the governor to forbid schools from adopting a blanket mask policy.” It was his opinion that the Parents’ Bill of Rights affirms school boards’ right to approve mask mandates that align with science—mainly CDC guidance. He continued by saying that he believed the scientific community was in agreement with masking K-12 schools regardless of vaccination status and social distancing. He did not agree with the state’s witnesses who gave testimony to the contrary.

The Parents’ Bill of Rights was signed into law by DeSantis in June. It deals with parents’ right to control educational and health decisions for their children. In addition DeSantis also enacted an executive order citing the new law and directed the state Department of Health and state Department of Education to ensure any school mask mandates are “in accordance” with the law and “protect parents’ right to make decisions regarding masking of their children in relation to COVID-19.”

In contrast to this case, a 2020 Lawsuit filed by Republican state representative Anthony Sabatini claimed the city of Tallahassee’s emergency mask mandate violated privacy, due process, religious, and equal protection laws. The suit further added that it could be classified as “government overreach that placed a burden on the average citizen and was difficult to understand.” But in the end, Cooper sided with Tallahassee and allowed the mandates to stand.

In court, Cooper said, “If people are not going to stay six to 10 feet apart, and if people are going to go into businesses and spread it all over the place, then about the only thing available is a face mask,” he said. “It’s about as uncontested as it could be among the science people.”

The judge also relied on Florida state statures such as requiring children to be vaccinated against certain diseases before being enrolled into school, with exceptions of some religious and medical reasons, which he believes is more of an infringement on parents’ rights than mask policies.

Cooper stated that parents’ rights are important, but they are not without limitation.

In his concluding remarks the judge said that the acts of the governor and state agencies do not pass “Constitutional muster.”

Cooper granted the plaintiffs relief on three of the six counts and dismissed one of them. He did not grant relief on two counts, saying the burden of proof was not met. An injunction was ordered by the judge against the Board of Education and Department of Education, but not against DeSantis, for enforcing the ban. He barred the agencies from continuing to enforce the order.

“I believe the governor will follow the law,” Cooper said.

The judge said the order will be in effect when it is signed possibly on Monday.

“If you’re going to appeal; appeal fast,” Cooper told all parties.

On Wednesday afternoon, the judge foresaw his opinion being challenged before a higher court.

“Whatever the result in this case, I think we could suggest to the (state) Supreme Court if they want to know how to try a case really fast, that this might be a good case study on how to do it,” Cooper said Wednesday afternoon before his ruling on Friday.

DeSantis at a press conference on Thursday promised to appeal if Cooper does not side with the state.

“If we win in trial court, I’m sure it will be appealed on the other side too. And so that’s good, I think we obviously need to have this stuff crystallized,” DeSantis said. “We feel that the Legislature really made a big statement with their parental bill of rights, and that’s an important piece of legislation.”

Jannis Falkenstern
Jannis Falkenstern
Jannis Falkenstern is an Epoch Times reporter who covers the state of Florida.