FL Education Department under federal scrutiny; retains lawyer over cease-and-desist complaint

The Florida Board of Education, already in hot water with the federal government, is hoping that the U.S. Department of Education drops a cease-and desist-claim against the state agency, according to a board meeting Tuesday.

The state Department of Education retained a lawyer following a federal cease-and-desist-complaint in late October stating that the department has “unlawfully—and explicitly—reduced the amount of state aid provided to Florida school districts based on their receipt of federal funds.”

At issue is whether the department is violating the law. A federal administrative hearing is scheduled for Dec. 10.

The potential violation relates to the state withholding money from school boards that had gotten federal grants to cover previous financial penalties implemented by the state Department of Education. The penalties involved strict mask mandates at Alachua and Broward school districts.

State board members and Education Commissioner Richard Corcoran, who is an attorney, believe they’ve done nothing wrong, but the department has retained a top lawyer with federal experience. He is Steven Engle, a former assistant attorney general at the U.S. Department of Justice during the Trump administration. He was brought on to counsel the state in this case and potentially related litigation.

“We remain hopeful that after (the school boards of) Alachua and Broward come into compliance, the U.S. DOE will drop this administrative proceeding against the department,” said Engle.

“But if the hearing does go forward, we are confident that the department has strong legal arguments in defense of its actions. It would also have strong legal arguments to challenge the Project SAFE program, itself, in federal court, should such a challenge become necessary.”

Project SAFE is a new grant program from the Biden administration to backfill financial penalties placed on to local school boards by state officials. In the case of Alachua and Broward, that meant punishment for strict mask mandates that didn’t comply with the DeSantis administration.

When Alachua and Broward got the federal SAFE grants, the state withheld even more state dollars as a punishment.

On Tuesday, Corcoran said at the meeting, a conference call, that the federal SAFE program is ‘unlawful.’

The meeting ended with the State Board of Education authorizing Education Commissioner Corcoran and the lawyers, “to vigorously defend against the cease-and-desist complaint, filed by the U.S. Department of Education and to protect our sovereignty against the unlawful federal SAFE grant program up to and including providing authorization to filing an independent action if necessary.”

What started as a battle between state education officials and local school boards over who has ultimate authority on how schools operate during a pandemic, now focuses on whether the federal government, which provides federal money to states, will back local boards in cases when the feds believe states are  violating the law.

Currently, 66 out of 67 Florida school districts, including the Alachua County School District, have mask policies that  the Board of Education says complies with state law. Broward will drop its strict mask mandate and comply with state policies by Nov. 20.

Still, Corcoran said at the Tuesday meeting that the board will “continue monitoring school districts’ compliance with the law.”

Anastasios Kamoutsas, general counsel for the Florida Department of Education , said at the Tuesday board meeting  that districts in compliance  — with DeSantis administration mask polices — will get their money that has been withheld by the state.

Even so, Engle claims that the federal Project SAFE grant is unlawful anyways.

“Congress did not give the Secretary of Education the authority to spend federal money for the purpose of undermining Florida’s sovereign right to set it’s own state educational policies,” Engle said.

Engle said that the federal law “forbids federal officials, and I quote: ‘from mandating, directing, or controlling the allocation of state or local resources.'”

“In direct conflict with this restriction, Project SAFE seeks to control the allocation of Florida’s resources by offsetting the board’s lawful penalties,” Engle said. “By matching dollar-for-dollar the amount that Florida withholds form the non-compliant school districts, the federal government is essentially seeking to control how the department’s resources are allocated.”

The Phoenix reached out to the U.S. Department of Education to get an idea of what could be at risk if Florida education officials are found to be violating federal law, including possible loss of federal dollars.

Florida lawmakers have convened for a special session this week at Gov. Ron DeSantis’ request to make immediate changes to Florida law to restrict certain COVID mitigation measures. Legislation would forbid school districts from requiring masks or COVID vaccines for students — a policy that would expire June 1, 2023.

Tuesday, the League of Women Voters sent a letter to Florida lawmakers outlining concerns they have with the legislation.

“The League is unified against any legislation that penalizes educational entities from making their own local decisions on what is needed to ensure their students’ safety,” the letter said.