Tampa Bay Times | By Jeffrey S. Solochek and Ana Ceballos | August 19, 2021
Florida’s school mask battle continued to build steam Thursday, as a Leon County judge cleared the way for a Monday trial in a parent-led lawsuit contending Gov. Ron DeSantis overstepped his authority in banning mask mandates.
After hearing from lawyers on both sides over three hours, Judge John Cooper determined that the case deserved to be considered on its merits rather than summarily tossed out.
“I do think that the parents and the children have standing. They have the right to contest the governor’s and the department of health’s actions in this case as alleged,” he said. “These parents and children, they have a right to have their case heard in court.”
The sides are scheduled to argue the merits of the case at 9:30 a.m. Monday. Cooper stressed that he had not made any decisions on the complaint, and that he wanted to hear the evidence. A record should be made, he said.
A growing controversy
The decision came one day after three of the state’s largest school districts bucked DeSantis’ mask order by requiring facial coverings unless there is a medical exemption.
The Hillsborough, Miami-Dade and Palm Beach county school boards joined the Alachua and Broward boards in flouting the state’s new “parental rights” laws and health department rules on school masks. All together, the districts’ decisions mean roughly 1 million students in Florida are currently being required to wear masks in schools unless they have a medical reason not to.
The Orange and Sarasota county school boards also are considering changes to their mask policies in the coming days, and could put more pressure on DeSantis’ administration as it weighs consequences for districts that defy the state’s mask orders.
The State Board of Education earlier this week directed education commissioner Richard Corcoran to continue investigating the conduct of school officials who flout state orders, and floated penalties that could include removing school officials from office or withholding their pay.
The governor said the State Board has “enumerated some things that would be very appropriate,” but his office did not clarify if he thought removing school officials from office, specifically, would be “very appropriate.”
Consequences for the districts will be decided in a future State Board meeting, according to DeSantis’ press secretary Christina Pushaw.
Pushaw said “it’s safe to assume” that Hillsborough, Miami-Dade and Palm Beach school board members and superintendents will go through the same process as Alachua and Broward school officials did, including hearings in regard to probable cause.
The Florida Department of Education had not sent warnings to Hillsborough, Miami-Dade or Palm Beach about their compliance with state orders as of 5p.m. Thursday.
The Alachua and Broward county school boards received warning letters when they adopted their own masking requirements, and the State Board of Education later found that probable cause existed to sanction them.
The State Board did not apply specific punishments, but cautioned it could take actions including withholding funds equal to the board member salaries and removing them from office. Officials in each district responded by restating their mask mandates and saying they would rather lose their jobs than see a child lose a life through their inaction on masks.
The Sarasota County School Board is holding an emergency meeting on Friday to review its masking policies. The Orange County School Board is also meeting next week to discuss whether the state’s fourth-largest district should require its roughly 200,000 students to wear masks.
Some Orange County School Board members said Thursday they were willing to impose a mask mandate despite facing penalties, such as removal from office.
“If there’s a risk of them (state officials) pulling all these school board members from all across the state out of their seats and replacing them, which we have been told that that’s a possibility, that takes time. In the meantime, these kids are protected,” said Orange County School Board member Melissa Byrd.
Florida schools on the national spotlight
Florida’s mask issue has attracted national attention, pitting an ambitious Republican governor against the sitting Democratic president.
President Joe Biden has threatened legal action against governors who try to prevent school districts from following federal guidelines on masks. Biden outlined the threats in a memorandum on Wednesday, and at a press conference that same day, the president criticized leaders such as DeSantis for attempting to “block and intimidate educators protecting our children.”
DeSantis has defended his position as protecting parents’ ability to choose what’s best for their children’s health and education, and criticized Biden for focusing too much on Florida’s mask policies and not enough on other national issues.
“It’s a lack of leadership, and meanwhile, all the world burns. And while parts of our country burn, you have this obsession that a little 5-year-old should not be able to go to school without wearing that mask for eight hours a day,” DeSantis said at a news conference in Pasco County on Thursday afternoon.
Actions in court
The lawsuit in Leon County, brought by families from Pinellas, Hillsborough, Alachua and Palm Beach counties, contends that the state must provide “a uniform, efficient, safe, secure, and high quality system of free public schools.”
The governor’s order “impairs the safe operation of schools,” St. Petersburg lawyer Charles Gallagher wrote in his initial complaint. He further argued that the order took away school boards’ constitutional powers to “operate, supervise and control” schools in their districts.
Gallagher was joined by Charles Dodson as co-counsel in the case. Dodson is the former Leon County judge who ruled a year ago against the state’s order requiring all schools to open for in-person classes amid pandemic concerns.
He found the state had overlooked the constitutional requirement of safety that the current lawsuit also relies upon.
The 1st District Court of Appeal later overturned that decision, saying the plaintiffs had no standing to bring the case and Dodson inappropriately inserted the court into political matters.
Lawyers for the state looked to that appellate court ruling of a year ago in making their motion to dismiss. They noted the 1st District held that the terms “safe” and “secure” when referring to schools lacked “judicially discoverable or management standards,” raising questions about whether the court should take up the complaint.
They added that the question is political and best left to lawmakers and the executive under the separation of powers doctrine.
They also contended the plaintiffs lack standing, as it is school districts’ powers that are alleged to have been violated, not those of parents.
Some legal experts not associated with the case have said the plaintiffs’ position might be stronger if it had school districts join in. They suggested a second case, now in federal court, might have more of a chance to advance.
In that case, families of children with disabilities have argued that the governor’s order conflicts with federal laws guaranteeing a free public education in the least restrictive environment for all students.
By not allowing for mask requirements without an opt-out, that complaint alleges, the state places those children with disabilities at risk.
State responses to that case are due by Tuesday.
In past years, state lawsuits relating to school district powers in relation to the Legislature and executive have not gone the districts’ way.
In addition to the 2020 school reopening case, courts also ruled against districts that claimed a 2017 law relating to charter schools and taxes took local control away from school boards. At all levels, including before Judge Cooper, the courts found state laws to be constitutional unless proven otherwise.
Disagreement with the statute, they found, was not enough to support a legal challenge.