FL’s Ed Commissioner and local boards clash over who’s in charge of reopening schools during pandemic

With the new academic year looming in Florida, it’s not clear who has the authority to get thousands of children and teens back to school during the COVID-19 pandemic.

The uncertainty in recent days surrounds a clash between state-level education directives and the powers of local school boards granted in Florida’s Constitution, according to public officials and education lawyers.

District after district would like to direct school reopening plans the way they want—based on their state Constitutional powers and particular needs.

But public emergency-related orders during the pandemic are coming down from Tallahassee from appointed Florida Commissioner of Education Richard Corcoran—who is a lawyer and a former state House Speaker but not an elected official.

Whether school district officials will defy Corcoran’s directives isn’t clear, but many districts are bothered by his emergency order earlier this month that says school boards “must open brick and mortar schools at least five days per week for all students.”

Most districts have been planning for multiple instruction plans, including both in-person and online learning, and some including hybrid options.

What does the law say?

Tallahassee attorney Ronald Meyer, who handles education cases, told the Phoenix that the State Board of Education, not the Commissioner of Education, has the “constitutional mandate to ensure that we have a high-quality system of education for free public schools.”

In addition, a statute gives the commissioner power in emergencies to coordinate with local school districts.

“So the Commissioner has a role, the state board has a role, and the local school districts have a role,” Meyer said. “We fall back to the school board being the body that is constitutionally charged with operating the schools—the body that is elected and bound to a particular area—to know best when and if schools should be open.”

Meyer said the conversation shouldn’t be “parsing words in the emergency order” and deciding who has authority over who, but focusing on whether school districts will be in position to ensure the safety of students and faculty.

“That’s best determined by the local school boards,” Meyer said. “Which, by the very simple words of the (state) Constitution, are the bodies that control and supervise all schools within the district.”

Renalia DuBose is a lawyer and professor at WMU-Cooley Law School’s Tampa Bay campus, and has served in public school districts in several counties.

She referenced a Florida statute related to the State Board of Education being the chief implementing and coordinating agency for K-12 education.

DuBose said that “local school boards, superintendents, and school principals may exercise authority under the auspices of the State of Florida.”

Elected officials weigh in

The rising COVID-19 cases in Florida make it more difficult to ensure the safety and logistics of providing instruction five days a week at a brick-and-mortar school.

State Rep. Rene Plasencia, also known as “Coach P,” recently sent a letter addressed to “School Board Members,” that called for postponing face-to-face instruction and giving more credence to online learning options. He also wrote that an Aug. 10 start date for the new school year would be “potentially catastrophic.”

Plasencia is a Republican representing parts of Orange and Brevard counties. He also invoked the constitutional powers of local school boards in his letter.

“The reality is that our state constitution gives you the authority to determine what instruction will look like this coming school year,” Plasencia wrote.

In a letter to Gov. Ron DeSantis, state Sen. Linda Stewart, an Orlando Democrat, said, “No school district should be forced into opening because of an executive order that is written as one size fits all.”

Stewart also wrote, “The state is trying to muscle through an approach that fails to take local communities’ needs into consideration and attempts to usurp the authority of locally elected officials who are responsible for ensuring the safety and wellbeing of their students, teachers and families.”

“Which is it—local control or state strong-arming?” Stewart asked the governor.

But as the emergency order continues to be scrutinized by lawmakers, school districts, and educators across Florida, even Gov. Ron DeSantis weighed in at a press conference Wednesday.

“It should not be dictated by the Department of Education. I think they can recommend but, ultimately, we want every school district to do what’s best for the kids, for their education, to make sure they have opportunities to do well, and also making sure that the parents have the agency,” the governor said.

The emergency order, itself, states that “absent these directives, the day-to-day decision to open or close a school must always rest locally with the board or executive most closely associated with a school.”

And the state Constitution says, “The school board shall operate, control and supervise all free public schools within the school district…”

RE: Education Commissioner Corcoran

In a State Board of Education meeting this week, Corcoran defended his emergency order related to five days in a brick-and-mortar school.

“The paradigm in which we educate our children is bricks-and-mortar, and we’re going to give [school districts] complete flexibility to go outside that bricks-and-mortar program,” Corcoran said.

“Whether you are a child in Monroe County or a child in Escambia or a child in Duval,” he continued, “We’re not going to let one child in a segment of our state not get the education that they deserve.”

The order states that school districts must submit a reopening plan to the Department of Education unless they plan to reopen schools as they would have pre-COVID-19. So far, no school district is considering such a method, so all districts will likely submit a proposal.

State Board of Education member Michael Olenick, who was participating in the meeting by phone, challenged Corcoran’s authority to mandate how schools reopen in the fall.

“To some degree, what we’re saying is duplicitous,” Olenick said, calling out the contradictory language in the emergency order.

Olenick argued that local school boards have “the legal authority to operate, control and supervise,” their schools.

“If, in fact, [school boards] have flexibility, and we’re acknowledging their statutory role…then let’s say, clearly, that ‘there is no brick and mortar requirement, we are leaving up to the districts, they have their own scientists or doctors that they’re consulting with,'” Olenick said.