Court asked to reconsider school reopening fight

The motions pointed to continuing safety threats to teachers and other school employees.

FLAPOL | by News Service of Florida | October 26, 2020

The Florida Education Association and other plaintiffs asked an appeals court Monday to reconsider a decision that backed Gov. Ron DeSantis and Education Commissioner Richard Corcoran in a battle about reopening schools amid the COVID-19 pandemic.

Attorneys for the statewide teachers union and other plaintiffs filed two similar motions asking for a rehearing by a three-judge panel of the 1st District Court of Appeal or by the full appellate court. The move came after the panel on Oct. 9 overturned a circuit judge’s ruling that said Corcoran violated the Florida Constitution when he issued a July order aimed at reopening schools.

The plaintiffs have argued, at least in part, that the order violated a constitutional guarantee of “safe” and “secure” public education. The appeals court, however, said the plaintiffs in the case lacked legal standing and were asking courts to decide “non-justiciable political questions.” Also, the panel said the union’s arguments would require courts to violate the constitutional separation of powers.

Attorneys for the plaintiffs Monday wrote that the panel had accepted “all of the state’s arguments — despite the trial court’s factual findings, supported by clear evidence, establishing that the state had abused its powers in a way that was harmful to Floridians.”

The motions pointed to continuing safety threats to teachers and other school employees.

“Even though in-person school opened in almost all Florida counties by August 31, the irreparable harm is continuing because teachers and staff who were forced to report to schools are becoming infected with COVID-19, have become sick, and even died after returning to in-person school,” said the motion for a rehearing before the full court, known as an “en banc” hearing.

Corcoran issued the July order as he and DeSantis pushed for schools to reopen after being shuttered in March because of the pandemic. Students in the spring were shifted to online learning, but Corcoran and DeSantis argued that students and families should have a choice of in-person or online learning during the 2020-2021 school year.

A key issue in the dispute involved part of the order that dealt with the way public schools are funded. The order effectively conditioned a portion of money on school districts submitting reopening plans that included the use of brick-and-mortar classrooms, in addition to offering online alternatives.

In an Aug. 24 ruling that sided with the plaintiffs and granted a temporary injunction, Leon County Circuit Judge Charles Dodson said the order left school districts with “no meaningful alternative” about reopening classrooms.

“An injunction in this case will allow local school boards to make safety determinations for the reopening of schools without financial penalty,” Dodson wrote. “This is what the local school boards were elected to do. Every witness testified that any decision to reopen schools should be based on local conditions. Reasoned and data-driven decisions based on local conditions will minimize further community spread of COVID-19, severe illness, and possible death of children, teachers and school staff, their families, and the community at large. Such local decisions unequivocally serve the public interest.”

But the appeals-court panel flatly rejected Dodson’s ruling, saying that “nothing in the emergency order requires any teacher or any student to return to the classroom.” The panel said Corcoran’s order gave school districts discretion about how to handle the situation.

“Nothing in the emergency order disturbs a school district’s discretion to determine when to reopen schools and whether to offer in-person instruction,” Judge Lori Rowe wrote in an opinion joined by Judges Thomas Winokur and Harvey Jay. “In fact, the emergency order does not require school districts to do anything. Rather, school districts retain the discretion to continue to offer students the choice of in-person instruction, to require teachers to report for duty under their contracts, and to determine teaching assignments. And so, whether a school district assigns them to in-person or online instruction is a matter between those teachers and their employing school districts.”

In the motions Monday, the plaintiffs’ attorneys disputed each of the key parts of the panel’s ruling, including that the case involved asking courts to decide political questions.

“If the testimony in this case did not establish safety measurement standards, then there will never be judicially manageable standards for measuring safety in any case ever,” the plaintiffs’ attorneys wrote. “The panel opinion, if allowed to stand, will completely curtail challenges to any action of the executive or legislative branch related to school safety — and eviscerate the Florida Supreme Court’s mandate that judicially manageable standards be reviewed on a case by case basis.”