Using strictly procedural reasoning, Florida’s First District Court of Appeals thwarted the latest attempt to stop the state’s governor from disallowing mask mandates to protect school children from the deadly, raging coronavirus. This is the latest move in a despicable chess game being played between the governor, parents, school boards, the Federal government and the courts, in which kids are the unfortunate pawns.

This case began when 12 parents of disabled school children from eight Florida counties sought injunctive relief to block an Executive Order that Governor Ron DeSantis and his education commissioner enacted on July 30. The order imposed a ban on all school mask mandates and authorized financial penalties for violations. The parents believed that optional mask-wearing would place their children in greater danger of contracting COVID-19, especially in light of the new Delta variant.

Lead plaintiff Allison Scott said, “No child has died from the requirement to wear a mask while indoors at school; however, children have died from contracting COVID-19.”

When he issued his order, DeSantis said it was “in response to actions by several Florida school boards considering or implementing mask mandates in their schools after the Biden Administration issued unscientific and inconsistent recommendations that school-aged children wear masks.” Since then, the Executive Order has been enacted, stayed, re-enacted, enjoined, and now upheld by the Appellate Court.

On September 8, Leon County Circuit Judge John C. Cooper lifted an automatic stay of his decision one week earlier, saying that DeSantis had exceeded his authority when he imposed the total mask mandate ban. He said the Governor’s action was unconstitutional.

That ruling only lasted two days. On September 10, a new ruling from a three-judge panel consisting of Tallahassee judges Stephanie Ray, Harvey Jay and Adam Tanenbaum, cited the Florida Rule of Civil Procedure to explain that when a public agency seeks appellate review there is a “presumption that the stay should be vacated only for the most compelling reasons.”

The opinion explains that this high threshold was met. It states the court has reviewed trial judge Cooper’s judgment and has “serious doubts about standing, jurisdiction and other threshold matters which “significantly mitigate against appellees’ ultimate success,” thus voiding Judge Cooper’s stay. The Governor’s Executive Order not only blocked mask mandates, but it also, among other things, will “withhold the transfer of …funds…until the school district complies with the law…” Thirteen school districts are currently disregarding the law.

This ruling strengthens DeSantis’s arguments against mask mandates, which he believes he can forbid due to his new Parents’ Bill of Rights law, which gives parents the sole authority and discretion to determine whether their children should have to wear masks in school.

The appellate ruling that permits mask mandate bans would be disturbing news anywhere, but it is particularly alarming in Florida where, according to the Fort Myers News-Press, one Floridian is being killed “about every four minutes’ by COVID-19.” The headline of its September 7 article that contained this statistic reads: “How many people have died of COVID-19 in your Florida community? State won’t tell you.”

In the article, the reporters explain how Federal websites and the Centers for Disease Control (CDC) are receiving only incomplete or inconsistent data from Florida counties. Palm Beach County’s Health Department Director is quoted, saying the data that is being released “hides the reality of what people are facing and that’s just wrong.”

President Biden and the U.S. Department of Education are fighting back. On September 10, Suzanne B. Goldberg, Acting Assistant Secretary for Civil Rights at the U.S. Department of Education (DOE), wrote Richard Corcoran, Florida’s Commissioner of Education, to inform him that her office is opening an investigation into the legality of DeSantis’ July 30 Executive Order. She questioned “whether the Florida Department of Education may be preventing school districts in the state from considering or meeting the needs of students with disabilities as a result of Florida’s policy…”

She also said DOE will investigate the legality of the Governor’s August 9 statement that pledged “to withhold the salary of the district superintendent or school board members” who complied with CDC guidelines. She wrote that DOE “stands with these dedicated educators” and explained that the American Rescue Plan of 2021 and the Coronavirus Aid, Relief, and Economic Security (CARES) Act provide billions of dollars that could be used to “pay the full salaries of educators (including superintendents) and school board members, regardless of whether the State moves to withhold some of their salary as Florida is threatening.”

Thus far, DeSantis has used none of these Federal funds.

Goldberg cited CDC’s scientifically valid masking recommendations and noted that students with disabilities “who are at heightened risk for severe illness from COVID-19 are prevented from safely returning to in-person education in violation of Federal law.” She said DOE would work directly with school districts to “monitor whether Florida is meeting all of its Federal fiscal requirements.”

Biden’s Press Secretary Jen Psaki elaborated on Goldberg’s letter on September 11 when she explained that Biden will use funds to support any local officials “who do the right thing by students, and that includes putting in place mask requirements and other requirements that will keep them safe.”

DeSantis, however, has pledged to “continue to fight for parents’ rights.” His pledge somehow excludes the millions of parents who want to protect their kids from getting COVID at a rate that is ten times higher this year than it was last year when mask mandates were in place.