Florida Judge Sets Aside Automatic Stay, Allowing Schools Mask Mandates to Continue

The state will file to reinstate the stay

Families protest any potential mask mandates before the Hillsborough County Schools Board meeting held at the district office in Tampa, Fla., on July 27, 2021. (Octavio Jones/Getty Images)

PUNTA GORDA, Fla.—On Wednesday morning, Second District Court Judge John Cooper heard arguments from both sides over an automatic stay on Gov. Ron DeSantis’s executive order that allows parents to opt out of school districts mask mandates. The judge ruled to set aside the stay, allowing schools to continue to mandate facial coverings for students, staff, and vendors, as well as bar the Department of Education from issuing penalties to school districts for not following the governor’s executive order.

After the Leon County judge ruled last week against the governor, citing his executive order as unconstitutional, the attorneys for the state filed an appeal. During the appeal process, an automatic stay is triggered to set aside the judge’s order until the appeal is heard, which is normally reserved for government entities. This did not sit well with the opposition as they filed a motion to have the automatic stay set aside, which led up to the judge’s decision Wednesday.

However, the ruling came as “no surprise” to the governor’s camp as the judge’s decision was anticipated.

Taryn Fenske, communication director for the governor wrote, “No surprise here that Judge Cooper concluded that he is unlikely to be overruled on appeal. We (unsurprisingly) disagree,” in a statement to the Epoch Times.

“Today we plan to file our emergency motion to reinstate the stay, and we anticipate the appellate court will rule quickly, much like during the school re-opening case last year,” Fenske said.

Cooper’s final decision was made after a 30-minute argument and evidence was presented from both sides. In the end, the judge determined that because children under the age of 12 are unable to be vaccinated, a danger exists and other mitigations such as masking should be considered by school boards, citing the Centers for Disease Control and Prevention as the “gold standard.”

“It’s undisputed that in Florida we are in the midst of a COVID pandemic,” Cooper said in open court. “Based on the evidence I’ve heard, there’s no harm to the state if the stay is set aside—there’s nothing in my final judgment that prevents the defendants from enforcing the full Bill of Rights, I’m just saying you can’t just enforce part of it. I see no harm to the state in setting aside the stay.”

Parents’ Bill of Rights

The Parents’ Bill of Rights is 68 days old and has already sparked a legal battle between parents who want mask mandates in schools and a governor who maintains that parents and legal guardians should be the ones making health decisions for their children including whether to mask them or not.

Cooper in his original ruling stated the Parents’ Bill of Rights protects a district’s choice to install protections like a mask mandate provided it meets certain criteria if challenged. It was the judge’s opinion that the governor had overstepped his bounds and found his executive order to be unconstitutional.

DeSantis disagreed with the judge’s ruling and has maintained his executive order and connected administrative rules “are lawful.” He continues to defend the action as protecting a parent’s right to choose what’s best for the health and wellbeing of their children.

“Why don’t we just empower parents,” DeSantis said at a press event last Friday. “Let them make the best decision for their kids and I think it’ll end up working out.”

Attorneys for parents filed a motion last week arguing that during the appeal process schools could not enforce their mask mandates and were putting the health and safety of students at risk of becoming infected with COVID-19, more specifically the Delta variant which has plagued Florida all summer. The motion was based on the likelihood of irreparable harm.

The attorney representing the parents, Charles Gallagher, said ending mask mandates would lead to “more sick and dead children” and “places all students, teachers, parents, and staff in harm’s way.”

Michael Abel, attorney for the state, disagreed and argued that the governor was likely to win the case on appeal based on previous court decisions and “should be granted the stay as the case proceeds.” He also challenged the plaintiff’s idea that students would be harmed.

“That rhetoric is unhelpful and irresponsible,” Abel said. “They haven’t shown irreparable harm.”

Four days before the judge’s written order was released last Friday, Florida Department of Education Chairman Richard Corcoran punished two school districts and initiated investigations into two others who had defied the governor’s order.

Alachua and Broward district boards had funding withheld equal to the salaries of the superintendents and school board members who voted in favor of mask mandates without parent opt-outs. Hillsborough and Sarasota districts are currently under investigation over their mask policies.

During his ruling, Cooper spent a great deal of time defending his decision, noting that he had previously decided cases for former Gov. Jeb Bush and former Gov. Rick Scott. “If you look at my record, it’s not somebody who runs all over the place and rules against the governor,” he said.