Broward, other school districts try a new legal challenge against state’s mask order

Miami Herald | By Jim Saunders, News Service of Florida | September 7, 2021

TALLAHASSEE

In a new front in the fight about mask mandates, three school boards are challenging a Florida Department of Health rule designed to prevent districts from requiring students to wear masks during the COVID-19 pandemic.

Attorneys for the school boards in Alachua, Broward and Orange counties filed the challenge Friday in the state Division of Administrative Hearings. It takes aim at an emergency rule the Department of Health issued last month as part of an effort, spearheaded by Gov. Ron DeSantis, to block mask mandates.

The rule, in part, allows parents to “opt-out” of requirements that students wear masks. But with the delta variant of the coronavirus causing a major surge in COVID-19 cases during the past two months, the Alachua, Broward and Orange school boards — and several others across the state — have bucked the rule and required students to wear masks unless they have documented medical reasons.

The three districts’ challenge, which was posted on the Division of Administrative Hearings website Tuesday, contends that the Department of Health overstepped its legal authority and that the rule is “arbitrary and capricious.”

Also, it contends that the wording of the rule does not prevent school districts from requiring parents to provide medical reasons for students to be exempted from wearing masks.

“The emergency rule does not state that the opt-out must be unlimited, does not declare an intent to preempt related regulations or occupy the field, and does not otherwise prevent schools from establishing parameters for the opt-out,” said the challenge, filed by attorneys from the Greenberg Traurig law firm. “The school boards’ face coverings policies comply with the requirements of the emergency rule since those policies include circumstances under which a parent or legal guardian can opt-out a student from wearing a face covering or mask.”

But Florida Education Commissioner Richard Corcoran has interpreted the rule differently, with the state imposing financial penalties on districts that require providing medical reasons for opting out of mask requirements. Those financial penalties have involved withholding amounts of money equal to school board members’ salaries.

“The emergency rule does not require parents to submit medical documentation from a physician or a nurse practitioner in order to opt out and any such requirement is inconsistent with the emergency rule,” Corcoran wrote in an Aug. 9 letter to Alachua County school officials. “Your district’s response … [indicates] that you have no current intentions of complying with this order, which is intended to guarantee choice options to parents/guardians regarding their child while also protecting federal and state protected rights to privacy.”

OTHER ACTIONS IN STATE, FEDERAL COURT

Arguing that parents should be given a choice about masks, DeSantis issued an executive order July 30 that set the stage for the Department of Health rule. But in addition to the challenge filed Friday, the DeSantis administration has drawn lawsuits in state and federal courts because of its stance.

Leon County Circuit Judge John Cooper ruled that DeSantis overstepped his constitutional authority with the executive order, a ruling that the administration has appealed. Also, U.S. District Judge K. Michael Moore will hold a hearing Wednesday in Miami in a case arguing that DeSantis’ order violates the rights of children with disabilities under the Americans with Disabilities Act and two other federal laws.

The case filed in the Division of Administrative Hearings is more focused on whether the Department of Health rule is valid. For example, the rule cites as a legal basis a state law dealing with immunization of children against communicable diseases.

But the challenge contends the mask rule does not pertain to immunizations and, as a result, the department exceeded its legal rule-making authority.

“The emergency rule clearly does not pertain to “immunization of children against” or the ‘testing for … preventable communicable diseases,’” the challenge said, quoting part of the state law. “Therefore it may only serve as support for the emergency rule if the emergency rule pertains to ‘the control of preventable communicable diseases.’ It does not.”