TALLAHASSEE (CBSMiami/NSF) -- Parents locked in a legal battle with Gov. Ron DeSantis about school mask requirements want to fast-track the case to the Florida Supreme Court.
Attorneys for the group of parents filed a request late Friday to effectively bypass the 1st District Court of Appeal and go to the Supreme Court. The request, filed at the 1st District Court of Appeal, focuses heavily on a July 30 executive order issued by DeSantis that sought to prevent schools from requiring students to wear masks.
"No child has died from the requirement to wear a mask while indoors at school; however, children have died from contracting COVID-19," the 11-page request said. "Undoubtedly, this executive order, which directly affects the health of appellees' (parents') children, as well as all the children of Florida, constitutes an issue of great public importance."
Also, it contended that "immediate resolution" by the Supreme Court is needed because the school year is underway.
"In the first week of school, across Florida, cases of COVID-19 occurred at a rate 10 times higher than at the same time last year (at which time students were required to wear masks)." the request said. "Both children and adults are sick and dying as a result of COVID-19. Thus, there is a palpable urgency for immediate review by the Florida Supreme Court in this matter."
The request came after a three-judge panel of the 1st District Court of Appeal on Friday placed a stay on a ruling by Leon County Circuit Judge John Cooper, who found that DeSantis overstepped his constitutional authority with the executive order. The stay cleared the way for the state to continue trying to block schools from requiring masks while the underlying appeal of Cooper's judgment moves forward.
In issuing the stay, the panel of the Tallahassee-based appeals court expressed skepticism about the parents' lawsuit.
"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," said Friday's order by appellate Judges Stephanie Ray, Harvey Jay and Adam Tanenbaum. "These doubts significantly militate against the likelihood of the appellees' ultimate success in this appeal."
The parents filed the lawsuit Aug. 6 against DeSantis, Education Commissioner Richard Corcoran, the Department of Education and the State Board of Education. Following the executive order, the Florida Department of Health issued a rule that said parents should have the right to opt out of student mask requirements.
While DeSantis argues parents should be able to decide whether their children wear masks, 13 districts bucked the executive order and Department of Health rule, only allowing students to forgo masks if their parents present documented medical reasons. That has led to Corcoran pursuing financial penalties against districts that have approved such policies.
In his Sept. 2 ruling siding with the parents, Cooper said DeSantis overstepped his authority, He also cited a new state law known as the "Parents' Bill of Rights," which deals with parents' right to control health and educational decisions for their children. Cooper said Corcoran and the Department of Education improperly imposed financial penalties on districts that enacted mask mandates without giving the districts due process.
"The law of Florida does not permit the defendants to punish school boards, its members, or officials for adopting face mask mandates with no parental opt-outs if the schools boards have been denied their due process rights under the Parents' Bill of Rights to show that this policy is reasonable and meets the requirements of the statute," Cooper wrote.
But in a motion last week that led to the appellate panel placing the stay on Cooper's ruling, the state's lawyers pushed back against the judge's conclusions on issues such as the Parents' Bill of Rights.
"According to its plain terms, the Parents' Bill of Rights limits governmental authority and protects the inherent rights of parents," the motion said. "Thus, the governor could not possibly have violated the Parents' Bill of Rights by protecting parents' rights. Most assuredly, the Parents' Bill of Rights does not grant any authority to local school districts that did not previously exist."
In the request Friday night to send the case to the Supreme Court, the plaintiff's attorneys wrote that the Florida Constitution "allows pass-through jurisdiction in cases that are 'certified to require immediate resolution by the Supreme Court.'"
"This appeal requires immediate resolution by the Florida Supreme Court because the underlying issues are of great public importance and will have a great effect on the proper administration of justice throughout the state of Florida," the request said.
(©2021 CBS Local Media. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. The News Service of Florida's Jim Saunders contributed to this report.)
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