Aug 10, 2021 • Richard Dahl; FINDLAW/BLOGS/LAW AND DAILY LIFE
Who Should Make School Masking Decisions in Florida?
The Florida Constitution seems to be clear about who runs local schools: “The school board shall operate, control, and supervise all free public schools within the school district.”
But when it comes to making decisions about whether students should be wearing face masks when schools open this month, Gov. Ron DeSantis has other ideas. Despite the resurgence of COVID-19 cases sparked by the delta variant, DeSantis is standing firm in opposing any and all face-mask mandates — including those proposed by local school districts.
DeSantis, a staunch conservative considered a leading Republican presidential contender in 2024, issued an executive order on July 30 aimed at prohibiting school boards from requiring masks. The order states that the Florida Commissioner of Education “shall pursue all legal means available to ensure school districts adhere to Florida law,” which included a threat to withhold state funding for noncompliant districts.
By “Florida law,” DeSantis is referring to a new one called the Parents’ Bill of Rights, which went into effect on July 1. It states that government “may not infringe on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health” of their children. In short, it means parents are now the only ones who can decide if their children mask up in school.
DeSantis signed that bill into law in June, at a time when the delta variant was just emerging as a threat. His recent pronouncements, including a threat to withhold salaries of superintendents and school board members who disregard the order, show that the sharp increase of COVID-19 cases in Florida is not changing his mind.
Pushback From Schools and Parents
Some school districts and parents, however, are fighting back. On Aug. 9, Leon County Schools Superintendent Rocky Hanna announced that he would require students in pre-school through eighth grade to wear masks at least until the end of August.
Three days earlier, a group of parents filed a lawsuit arguing that DeSantis’ executive order prevents children with disabilities from safely returning to school because they are at elevated risk if they contract COVID-19. Among the plaintiffs’ arguments was one claiming that DeSantis lacks the authority to threaten school districts with loss of funding if they require masks.
As for the school districts, Democratic State Sen. Gary Farmer, a Broward County trial lawyer, said in a letter to Education Commissioner Richard Corcoran that school boards are on solid ground if they resist. Farmer argued that DeSantis lacks the authority to order the Education Department to engage in rulemaking.
“As neither the State Constitution nor statutes contemplate state level authority on whether or not students, teachers, and staff wear masks, this is an operational issue which is the explicit responsibility of district school boards,” he wrote. “As such, you should be aware that the rulemaking requested by Governor DeSantis would violate our State Constitution.”
How Solid Are the Legal Grounds?
So, is it even legal for the DeSantis administration to impose an order in apparent defiance of the state constitution?
The nonprofit news site Florida Phoenix looked at this question and concluded that there is not a clear answer because there’s not been a direct court test. Looking at how Florida’s appellate courts have ruled on related cases, the Phoenix found that the courts have delivered sharply diverging results.
In 2020, the Florida Education Association sued to block an order from Corcoran to keep schools open that year, and Leon County Circuit Judge Charles Dodson cited the local-authority provision in granting a temporary injunction. However, the 1st District Court of Appeals later allowed Corcoran’s order to take effect.
In terms of actual face-mask mandates by local governments in Florida, the legal record is also mixed, the Phoenix reported.
In June, the 1st District Court of Appeals struck down a mask mandate of the Alachua County Commission, with Judge A.S. Tanenbaum citing “the right to be left alone by government.” In January, however, the 4th District Court of Appeals upheld a mask ordinance in Palm Beach County, concluding that the county had a rational basis to protect public health by passing the mask ordinance.
Meanwhile, officials from several other large school districts have said they are going ahead with mask mandates and more may follow. But as an ardent opponent of masking mandates, DeSantis may dig in for a fight.
Will it last? Will there be new legal challenges?
We have no choice but to see how this plays out.