Is it worth it to pursue a lawsuit, when all brick-and-mortar schools are now open and kids are in classes?

At the start of the 2020-21 school year, Gov. Ron DeSantis, Education Commissioner Richard Corcoran and other officials found themselves in a legal tug-of-war with a statewide teacher union about an emergency order that mandated the reopening of Florida schools during the COVID-19 pandemic.

A decision made at the First District Court of Appeal allowed the emergency order, signed by Corcoran, to force school districts to reopen brick-and-mortar schools despite safety concerns brought forth by the Florida Education Association regarding COVID-19.

Now, all Florida school districts have opened for brick-and-mortar instruction, and some have been up and running for nearly three months. Is the lawsuit worth pursuing at this point?

Andrew Spar, president of the FEA, thinks so.

“It really comes down to who gets to make the decision and how do we make sure that the decision is made based on the [Florida] Constitution,” said Spar, in a conversation with the Florida Phoenix.

The FEA argues that school boards have the responsibility to decide how to open their schools during a pandemic, not the state.

FEA files a motion for rehearing

The lawsuit is part of a long, ongoing discussion on the safety of schools during the COVID-19 pandemic.

Corcoran signed the controversial emergency order on July 6, which stated that “upon reopening in August, all school boards and charter school governing boards must open brick and mortar schools at least five days per week for all students.”

The FEA filed the lawsuit on the order in late July, which was expedited through Florida’s Second Judicial Circuit, hoping to receive a quick ruling before schools would begin to open mid-August.

The Florida Constitution promises students the right to a “safe, secure” education, and current law appears to give local school boards authority on when and how to open schools. The FEA claims that the emergency order oversteps local decision-making power.

While the Second Judicial Circuit agreed with the FEA’s concerns and granted a temporary injunction on parts of the emergency order in order to give districts decision-making power while the lawsuit continued, the state officials appealed that ruling.

Then, the First District Court of Appeal sided with the state officials and negated the temporary injunction, which meant that schools would need to reopen under the expectations set by Corcoran and his emergency order.

Monday of this week, the FEA filed a motion for rehearing in front of a full panel of judges at the appellate court.

The FEA’s motion claims that the appellate court’s initial decision “overlooks and misapprehends points of law and fact to reach erroneous conclusions as to critical legal and constitutional questions.”

Part of the reasoning for this decision was that under the order, school districts were not “forced” to reopen and that teachers or students were not “forced” to return back to campus.

However, in practice, some school districts found that if they did not comply with the order, they might risk funding from the district — as the Hillsborough, Miami-Dade, and Broward school districts learned when Corcoran did not like their reopening plans.

The motion for rehearing highlights this conflict, saying that: “The way the state implemented the emergency order presented local school districts with a ‘Hobson’s Choice’ to essentially ‘take it or leave it.'”

Future of the lawsuit

DeSantis seems confident that the lawsuit is pretty much a done deal.

At a press conference on Oct. 20, the governor said that reopening Florida schools during the COVID-19 pandemic was the correct choice. Then he referenced the FEA lawsuit and misrepresented it’s claims.

“The union filed lawsuits — they’ve gotten totally dismissed out of hand, those bogus claims. Their goal was to keep kids out of school and they were wrong,” he said at the press conference.

The FEA thinks the fight is not over.

Success for the FEA in the lawsuit “would give districts the ability to make decisions they believe are best for their students,” according to the FEA’s Spar, both in this semester and in the one starting in January.

“It would give them the ability to drive decisions and make determinations they believe are necessary for kids, without the fear of a Commissioner who is an appointed bureaucrat,” Spar said, referring to Corcoran — who was appointed and not elected by Floridians.

But the First District Court of Appeal could reject the motion for rehearing entirely. The FEA would, then, have to weigh their options — one of which could lead them to the Florida Supreme Court.

“We would have to decide what to do at that point, if they go that direction,” Spar said.

Future financial concerns

The financial concerns may impact school district decisions past December, which is part of the reason why Spar and the FEA are continuing with the lawsuit.

Spar said that the lawsuit is still relevant because school districts are at risk of having to send students back into classrooms come January, regardless of the state of the COVID-19 pandemic and a district’s assessment of safety for students.

The Sun Sentinel reported Wednesday that “Taryn Fenske, the spokeswoman for the Florida Department of Education, said a decision will be made within a few weeks about whether parents will retain the ability to keep their children at home after January, based on enrollment data from individual school districts.”

The Florida Department of Education is a defendant in the lawsuit, like DeSantis and Corcoran.

A portion of state funding from schools is based on enrollment numbers — which, in a typical year, would equate to how many students are in a physical school.

When students were sent home for distance learning at the rise of the COVID-19 pandemic, and into the the 2020-21 academic year, school districts were in need of a way to provide virtual learning options without the risk of losing funds for lack of enrollment.

A component to Corcoran’s emergency order from July 6 addressed potential funding issues for districts if a significant percentage of their students needed a virtual learning option. The emergency order gave financial flexibility to school districts for their virtual learners so long as they also provided an in-person learning option for all students.

But that leniency might not be available for Florida school districts come 2021, should state officials decide students should be back in classrooms.