TALLAHASSEE, Fla. - A Florida judge ruled Wednesday that the state cannot enforce a ban on public schools mandating the use of masks to guard against the coronavirus, while an appeals court sorts out whether the ban is ultimately legal.
Leon County Judge John Cooper ruled to vacate an automatic stay that was provided to the state when it appealed his previous ruling that Gov. Ron DeSantis’ school mask mandate ban is unconstitutional.
Wednesday’s decision allows school districts to require masks without penalty. Cooper said he believes this is the first time he’s ever vacated a stay.
"We are not in normal times," he said. "We are in a pandemic. We have children who cannot be protected by a vaccination."
The legal jockeying over mask mandates in schools continued in two separate Florida courtrooms on Wednesday. Each lawsuit takes aim at the governor’s executive order that bans school districts from mandating masks in schools. Last month, a Judge Cooper determined the governor's order to be unconstitutional.
"The actions of the defendant do not pass constitutional muster," the judge previously explained. "The Parents’ Bill of Rights does not ban school board face mask mandates. The law expressly permits school boards to adopt policies regarding the healthcare of students such as a face mask mandate."
Soon after that decision was issued, the governor’s office appealed, automatically triggering the stay in the case. The stay restored the governor’s original order as the case plays out in court, effectively meaning the state can continue to withhold funds from school districts that have passed mask mandates. But Wednesday's decision by Judge Cooper reversed it after parents' attorneys in the lawsuit asked the judge to lift it.
"What we’ve found is in the trial courts in Tallahassee, state and federal, we typically lose if there’s a political component to it, but then in the appeals court we almost always win," the governor said.
But Cooper seemed to go out of his way to point out that he has frequently ruled in favor of Florida governors in the past, including cases involving GOP Govs. Jeb Bush and Rick Scott. Cooper has been a Leon County circuit judge since he was first elected in 2002.
"If you look at my record, it’s not somebody who runs all over the place, ruling against the governor," Cooper said. "This case has generated a lot of heat and a lot of light."
On the Parents Bill of Rights, Cooper said his previous order follows the law as passed earlier this year by the Legislature. The law, he said, reserves health and education decisions regarding children to parents unless a government entity such as a school board can show their broader action is reasonable and narrowly tailored to the issue at hand.
The DeSantis order impermissibly enforces only the first portion of that law, Cooper said.
"You have to show you have authority to do what you're doing," the judge said. "You cannot enforce part of that law but not all of it."
In a separate case filed at the federal level, attorneys are suing on behalf of disabled students. Similar lawsuits have been filed in other states that have passed bans on mandating masks in schools.
Parents of children with disabilities argue the orders against mask mandates violate the Americans with Disabilities Act, in part because children with disabilities are more susceptible to COVID-19.
"In our Complaint, our moms and dads sought to protect their children with disabilities. Each of their kids live with a disability that would subject them to increased illness or death if they caught the virus," explained attorney Matthew Dietz. "Accordingly, if they went to school without all children wearing masks, they would be at high-risk to get sick. While any child could get sick, the results for kids with disabilities is so much worse."
A hearing is scheduled for 1 p.m. in the U.S. District Court in Miami.
The Associated Press contributed to this report.