DeSantis policy on masks for schoolchildren: Is it even legal?

Critics cite school boards’ constitutional autonomy; appeal courts are split on mask mandates

By: - August 9, 2021 4:28 pm

Photo of schoolchildren, Reopening Miami-Dade County schools. Credit: Miami-Dade County Public Schools website.

The Florida Constitution seems to make clear who runs local schools: “The school board shall operate, control, and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein.”

However, Florida’s new Parents’ Bill of Rights, signed into law by Gov. Ron DeSantis this year, says the government “may not infringe on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health” of their child.

On Friday, the state departments of Education and Health issued rules to enforce that law, but that didn’t resolve the tension over masks at school between local school boards and the governor and his executive branch as the COVID-19 pandemic continues and most schoolhouse doors open Tuesday.

Which leave the question: Is what the administration is doing strictly legal?  Absent a direct court test, that’s impossible to answer. To the extent that Florida’s appellate courts have ruled on mask mandates more widely, they have delivered sharply diverging results.

Solid legal grounds?

Thus far, the new state rules have drawn one lawsuit, filed in the U.S. District Court for the Southern District of Florida on behalf of children with developmental disabilities, who are more susceptible to dangerous complications from infection.

The action alleges the rules would interfere with the kids’ right to a safe education “in the most integrated and least restricted environment.”

The complaint names DeSantis, the Department of Education, Education Commissioner Richard Corcoran, and eight local school boards. It claims violations of the federal Disabilities Education Act, the Americans with Disabilities Act, and the Rehabilitation Act.

“What this means, is that these kids with disabilities are entitled to learn and interact with all other children, receive the same education as all other children, and do so while being safe and returning home as safe and healthy as possible,” the document continues.

“As governor of Florida, Ron DeSantis does not have the authority to threaten school districts with loss of funding if they protect their students with disabilities health and rights to be in an integrated learning environment,” it asserts.

State Sen. Gary Farmer, former Senate Democratic Leader in the Florida Senate. Credit: Florida Senate

As for the school districts, one senator — Gary Farmer, a trial lawyer from Broward County — suggested last week they would be on solid legal ground if they tried to resist.

In a letter to Corcoran, he challenged the administration’s authority to issue its rules.

“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,” Farmer wrote.

“As such, you should be aware that the rulemaking requested by Gov. DeSantis would violate our state Constitution.”

Farmer argues in his letter that the state education bureaucracy lacked authority to issue the rules absent specific legislative authority. The bureaucracy certainly lacks authority to declare an emergency and skirt the normal rulemaking process, according to the senator.

The Florida Supreme Court, he noted, has ruled that to declare an emergency the state must express an “factually explicit and persuasive” explanation.

In fact, the senator wrote, the governor’s entire basis for his position, including the suggestion that wearing face masks can be dangerous for children, is “not only baseless” but contradictory to the widely accepted and proven fact that masks are a necessary measure for the effective mitigation of COVID-19.”

As mentioned above, existing precedents present at bests a mixed picture of the state of the law.

In August 2020, Leon County Circuit Judge Charles Dodson cited the constitutional provision governing local authority in blocking Corcoran from ordering all schools opened for that school year. The Florida Education Association had sued to block Cororan’s order.

“The order is unconstitutional to the extent it arbitrarily disregards safety, denies local school boards decision making with respect to reopening brick and mortar schools, and conditions funding on an approved reopening plan with a start date in August,” Dodson wrote at the time.

However, the 1st District Court of Appeal, an intermediate appellate court, later allowed Corcoran’s order to take effect. The union subsequently dropped its case.

In those court proceedings, the administration argued it was attempting to balance the need for a safe, high quality education, given that many children had difficulty adjusting to COVID restrictions and school closures.

Attorney David Wells, arguing for the state, defended threatening districts’ state funding at the time. “There is no question about that. Not going to dance around it. That is absolutely right,” he told Dodson about the administration’s determination on that score.

‘Dikats,’ ‘fiats’

The 1st DCA also came down hard against mask mandates imposed by the Alachua County Commission. In a ruling in June, Judge A.S. Tanenbaum called them “diktats” and “fiats.” He invoked the Florida Constitution’s right to be left alone.

Judge A.S. Tanenbaum of Florida’s 1st District Court of Appeal. Credit: 1st DCA

“The Supreme Court has construed this fundamental right to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect not to be forced by the government to put something on his own face against his will,” Tannenbaum wrote.

That’s the state of the law within the appellate district, which sprawls across the breadth of North Florida.

However, it is not the law within the 4th DCA’s jurisdiction, which covers Broward, Indian River, Martin, Okeechobee, Palm Beach, and St. Lucie counties. In January, that court upheld a mask ordinance in Palm Beach County, reasoning that the county had a rational basis to require masks to protect public health.

During a public meeting last week, Jon Phillips, an attorney for the city of Jacksonville who advises the Duval school board, warned that the 1st DCA ruling gives districts within the court’s jurisdiction (like Duval) “a hard row to hoe” legally.

“If you only have to show a rational basis to justify your mandate, you’re likely to win, because you just have to have a reason for doing it that makes some sense. Whereas, if you subject it to strict scrutiny, then it becomes the same test that’s applied when you have a mandate that would discriminate against Black people, for example,” he said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.