The case heads next to the 15 judges on the 1st District Court of Appeal in Tallahassee and could ultimately wind up in the state Supreme Court. The issue is whether the freshly minted Parents Bill of Rights law means parents have sole authority to decide if their child wears a mask or permits a school board to impose a broad mask requirement.

Because that will likely take time, lawyers for parents challenging the ban on mask requirements want Leon County Circuit Judge John C. Cooper to immediately lift an automatic stay that effectively allows the ban to continue to be enforced during the appeal.

Plaintiff attorney Charles Gallagher said in a court filing that the rise of the highly contagious Delta variant of the COVID-19 virus makes it all the more important that school districts be permitted to decide student mask mandates for themselves.

“If the automatic stay remains in place, defendants would be permitted during the duration of the appeal to enforce the executive order and freely expose students and school staff to increased risk of Delta variant infection, which is a continuing constitutional violation,” Gallagher wrote. “Compelling circumstances are clearly present here.”

Cooper set a hearing for Wednesday morning on the parents’ request that the stay be lifted. Jacob Oliva, public schools chancellor at the state Department of Education, said in a notice Thursday to local superintendents that “enforcement must cease if the stay is lifted.”

Under the DeSantis executive order, state education officials have been seeking to penalize defiant school boards by withholding salaries of board members. As of Friday, 13 districts representing more than half of Florida’s 2.8 million public school students had imposed mask mandates despite the governor’s order that a parental opt-out must be included. Most have only an opt-out for medical reasons.

The rebel districts showed no signs of backing down, with some hiring lawyers to defend their decisions that often came after raucous public meetings pitting pro-and anti-mask parents against each other. Alachua County school Superintendent Carlee Simon, like others, insisted a mask mandate is permitted under the Parents Bill of Rights.

The judge’s ruling against the DeSantis order, she said in a statement, “confirms what we’ve said all along, which is that our mask mandate does not violate Florida law.”

DeSantis, who is gearing up for a 2022 re-election campaign and a possible 2024 presidential run, has dismissed the recommendation from the Centers for Disease Control and Prevention that people generally wear masks to prevent coronavirus spread in certain situations. In particular, he contends that masks are less essential for young people and carry some risks of their own for children.

At a news conference Friday in Pensacola, DeSantis said he opposes broad government or business mandates on masks or anything else related to the coronavirus pandemic. He did not directly address the school mask debate.

“We’ve got to protect people’s ability to live their lives,” DeSantis said. “My philosophy is, as a governor, my job is to protect your individual freedom.”

The governor’s appeal came Thursday night after Cooper issued a written version of his order delivered orally last week. The judge found that the Parents Bill of Rights law exempts government actions that are needed to protect public health and are reasonable and limited in scope—such as masking students to prevent the spread of COVID-19 in schools.

In fact, Cooper wrote that the DeSantis order on school masks itself violates the Parents Bill of Rights by illegally constraining the actions of school boards.

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

In addition, the judge said school boards must be afforded a chance to contest any penalties levied against them for adopting a student mask mandate.

The appeals court did not immediately indicate when it would take up the governor’s appeal, which first must be filed in a full written document. The action taken Thursday night was a notice to the court that a detailed appeal of Cooper’s order is coming.

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