A judge faces a crucial decision amid COVID-19, a Constitutional clash and power over public schools

In Florida’s state capital, Leon Circuit Judge Charles Dodson faces a daunting task.

He’s taking on a clash between the language of the Florida Constitution and the powers of local school boards, against a state emergency order that mandates school buildings be open at least five days a week during the COVID-19 pandemic.

It’s all part of a crucial lawsuit and a scary virus, and the stakes are high.

Educators, parents, and students are struggling to traverse a terrain that is complicated by the pandemic, with some districts this month already seeing cases of COVID-19 crop up in school buildings. More schools will be opening this coming week, as coronavirus infections, now at more than 600,000,  continue to rise.

The key players are fighting to win: Gov. Ron DeSantis and Education Commissioner Richard Corcoran are pushing to get kids back into brick-and-mortar schools in the 2020-21 academic year.

The statewide Florida Education Association is asking for a temporary injunction to block the state from forcing districts to open brick-and-mortar schools, with the FEA concerned that not all schools are safe. The lawsuit also includes additional plaintiffs and defendants.

Granting the temporary injunction would essentially mean that local districts — not the state — would decide if schools should open, or continue with online learning during the pandemic.

If the injunction isn’t granted, districts would have to follow expectations in the state’s emergency order, which mandates that brick-and-mortar schools be open at least five days a week.

That said, families have been able choose online instruction for their children in the new academic year. But the emergency order appears to be designed to ensure that families can send their children to a brick-and-mortar school that is open.

It’s a difficult decision for Judge Dodson, and his ruling on the temporary injunction will likely set the tone for the rest of the lawsuit.

Last week, one educator testified that he was weighing in on whether he should return to school to risk his own life and the lives of his family members or leave the profession.

But the defense provided testimony from two parents concerned about losing access to brick-and-mortar schools for children with special learning needs.

Another advocate on the defense side said keeping brick-and-mortar schools closed can disadvantage low-income children.

Dodson is expected to rule on the temporary injunction some time this week.

Language in emergency order and the Constitution

The line in the state emergency order that has raised so much controversy says: “Upon reopening in August, all school boards and charter school governing boards must open brick and mortar at least five days per week for all students, subject to advice and orders of the Florida Department of Health, local departments of health.”

At issue is whether the state emergency order conflicts with the Florida Constitution when it comes to who’s in charge of public schools.

The state Constitution says that, “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education…”

It also states that local boards are involved, saying, “The school board shall operate, control and supervise all free public schools within the school district…”

The emergency order, the plaintiffs argues, oversteps the school board’s authority to determine how schools operate during the COVID-19 pandemic and neglects to provide students a “safe” education.

On the other hand, the Florida Constitution mentions the State Board of Education — which is a defendant in the lawsuit — saying that this particular board “shall be a body corporate and have such supervision of the system of free public education as is provided by law.”

But another crucial sentence in the emergency order says 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,” meaning the superintendent of a district or the school board.

Financial pressure to comply

The order instructs school districts to submit a 2020-21 school reopening plan to the Department of Education, for the agency to approve. Without an approved plan, a school district would risk funding for crucial school expenses, according to David Wells, a lawyer representing the defense side in last week’s hearing.

Judge Dodson asked Wells if districts without an approved plan would risk state funding for not complying with the emergency order.

“You lose a lot of funding if you do that, right?” Dodson asked.

“There is no question about that. Not going to dance around it. That is absolutely right,” Wells responded.

However, Kendall Coffey, attorney representing the plaintiffs’ side, said that funds have already been allocated to districts and that the state would essentially be holding back funds for arbitrary reasons.

“The money is already funded,” said Coffey. “What the state has been doing is saying ‘You, school districts, you open brick-and-mortar. Do it our way or we’re going to hold your funding back.'”

Nathan Hill, attorney for the defendants, looked at Florida law — not just the Constitution — and he found that Florida law permits the state to enact “strong incentives and disincentives to force accountability for results.”

Does the order guarantee safety?

A key question in the hearings last week was brought up by Judge Dodson.

“How does the emergency order provide for a safe education?” the judge asked the lawyers.

Attorney Hill responded by saying that the order balances both the need for a “safe” education and a “high quality” education by allowing families and students the option to attend brick-and-mortar schools.

“It’s a tough balance,” Hill said. “One group on either side of this is going to be harmed. You can’t both give children a choice, or parents a choice, and give teachers a choice. Somebody loses in that situation.”

He did not provide an answer on how the executive order specifically addresses safety.

But in the lawsuit, the FEA outlined a number of measures to ensure that public schools would be safe if they open.

That includes adequate personal protective equipment and other necessary supplies for all employees and students; a reduction in class sizes to comply with physical distancing requirements; sufficient hand-sanitizing stations; plexiglass shields where necessary; increased staffing and increased school clinic capabilities.

Prior to the executive order, and in part for safety reasons, many districts had planned for alternative instruction plans, such as hybrid models which utilize both in-person and online instruction.