Florida-D.C. fight over school masks isn’t over. State plans ‘vigorous’ legal defense
Miami Herald | By Ana Ceballos, Herald/Times Tallahassee Bureau | November 16, 2021
Florida’s State Board of Education remained steadfast on Tuesday in its effort to defend the state’s school mask rules from federal interference, a stance that comes just as all districts have come into compliance with state rules after months of disagreement.
President Joe Biden’s administration attempted to support school districts that required students to wear masks in schools by offering them federal money to cover any penalties the state levied in response to a strict mask mandate.
The Florida Department of Education counteracted the effort by withholding state funds from two districts, Broward and Alachua, in an amount equal to the federal aid they had received. In response, the U.S. Department of Education filed a federal complaint against the state in late October, and asked an administrative judge to block the state’s actions.
On Tuesday, the State Board of Education granted Education Commissioner Richard Corcoran’s request to “vigorously defend” the state from the complaint and allowed him to explore the option to file suit against the federal government over the issue, if necessary.
“It is my hope that districts will continue to comply with Florida’s laws,” Corcoran said. “But should that change, we must vigorously defend the state’s authority to control its education system.”
‘CIRCUMSTANCES MAY CHANGE’
At one point in September, 13 school districts — including the five largest districts in the state — were battling the state over local mask mandates. But all Florida school districts are expected to be in compliance with state masking rules by Nov. 20, Corcoran said.
“Because the policies will comply with the law, the department intends to release the funds withheld for failing to comply with the board’s directive,” said Anastasios Kamoutsas, general counsel for the Florida Department of Education.
Districts amended their masking policies as COVID-19 conditions began to improve, and after an administrative law judge rejected six school districts’ challenge to a Florida rule that barred mask mandates.
Administrative Law Judge Brian Newman struck down the challenge, filed by the school boards in Alachua, Broward, Duval, Miami-Dade, Orange and Leon counties, because he said the DeSantis administration had struck the “right balance” and school boards had “failed to prove that the emergency rule opt-out provisions facilitate the spread of COVID-19 in schools.
Four school boards, from Broward, Duval, Leon and Miami-Dade counties, are appealing the decision at the 4th District Court of Appeal. Alachua County Public Schools dropped out of the legal fight this week.
Corcoran said Tuesday that the state remains vigilant.
“Circumstances may change. Pressure may resume. Parties may once again attempt to circumvent the bounds of the law,” he told the State Board of Education.
As a result, he said, the state has retained outside counsel to fight the federal cease-and-desist complaint and to consider filing suit to challenge the Biden administration’s new grant program. Project SAFE was designed to cover any fines or withholding of funds that school districts face because of their COVID-19 rules.
WHAT HAPPENS NOW?
Steven Engle, a Washington, D.C.-based attorney retained by the state, said an administrative law judge has scheduled a hearing on the cease-and-desist complaint for Dec. 10. The state has asked to push back the date.
Engle said the state remains hopeful the U.S. Department of Education will drop the case as soon as all districts come into compliance.
“But if the hearing goes forward, we are confident that the department has strong legal arguments in defense of these actions but would also have strong legal arguments to challenge the Project SAFE program itself in federal court,” he said.
The U.S. Department of Education declined to comment on the matter.
In its complaint, the federal agency alleges that the state violated federal law when it “reduced the amount of state aid to the district based on their receipt of federal funds.”
Specifically, the state is accused of violating a law that bars a state from taking into consideration federal payments when determining the amount of aid a district should get.
Engle argued the state did not withhold the state funds in response to the federal grant program. He said the board withheld state funds from the districts “as a penalty for their continuing failures to comply with the laws of the state.”
“Once they come into compliance, as they have promised to do, then they will receive the withheld state money,” Engle said. “The department, therefore, did not reduce any spending on these school districts because of the federal grants.”
Tampa Bay Times staff writer Jeffrey S. Solochek contributed to this report.