Florida seeks to short circuit student mask case

Pointing to a “hierarchy” that requires school districts to follow state laws and rules, the Florida Department of Health is asking a judge to toss out a challenge by six school boards to a rule that seeks to prevent student mask mandates during the COVID-19 pandemic.

Attorneys for the Department of Health said in a 10-page motion posted Monday on the state Division of Administrative Hearings website that the school boards in Miami-Dade, Broward, Orange, Duval, Alachua and Leon counties do not have legal standing to challenge the rule.

“At bottom, the school boards disagree with the substance of the department’s emergency rule,” the motion said. “However, as the public officials charged with operating in accordance with state law, the school boards must presume that state laws applicable to their duties are valid. As such, the school boards lack standing to initiate litigation for the purpose of invalidating the very laws they are duty-bound to follow. Put simply, the school boards do not get to pick and choose which state laws they want to follow.”

Also, the motion said the “Florida Constitution creates a hierarchy under which school boards administer the day-to-day operations of local schools, but must do so ‘in harmony’ with state laws and rules.”

But Administrative Law Judge Brian Newman last month rejected similar arguments in a challenge by school boards to an earlier version of the Department of Health rule. The challenge to the earlier version ultimately was declared moot when the department issued a revised rule Sept. 22.

In the earlier case, Newman disputed the state’s arguments that what is known as the “public official standing doctrine” prevented school boards from challenging the rule and cited a list of past cases in which local governments had pursued rule challenges.

“In summary, there is no authority for respondent’s (the Department of Health’s) assertion that the school board petitioners, as public officials and/or units of government, are barred by the public official doctrine — or by any other law — from challenging a rule that substantially affects it under (a section of the state Administrative Procedure Act),” Newman wrote Sept. 20. “Indeed, such challenges are routinely decided here at the Division of Administrative Hearings.”

The school boards filed the latest challenge Wednesday, arguing, in part, that the Department of Health overstepped its legal authority in issuing the Sept. 22 emergency rule. The rule stems from a July 30 executive order issued by Gov. Ron DeSantis that sought to prevent school districts from requiring students to wear masks.

The six districts have required students to wear masks, with limited “opt-outs,” and are among eight that face financial penalties from the state.

In the revised rule, the Department of Health cited its legal authority to “adopt rules governing the control of preventable communicable diseases” and said that “because students benefit from in-person learning, it is necessary to immediately promulgate a rule regarding COVID-19 safety protocols that protects parents’ rights and to maximize the allowance of in-person education for their children.”

But the school boards’ challenge contends the department “at most” is able to enact rules about immunizations and controlling communicable diseases — but does not have the legal authority to enforce parental rights.

“Although it is titled ‘Protocols for Controlling COVID-19 in School Settings’ and enacted solely pursuant to the DOH’s (the department’s) limited rulemaking authority to control communicable diseases, the DOH rule challenged in this petition is actually focused not on controlling COVID-19 but rather on protecting parental rights,” the challenge said. “The DOH does not have rulemaking authority in this area, and thus exceeded its rulemaking authority.”

Newman has scheduled a hearing Oct. 21 and Oct. 22 in the case. It is one of a series of legal fights playing out in state, federal and administrative courts about the DeSantis administration’s effort to prevent student mask requirements. DeSantis contends parents should be able to decide whether children wear masks.

The Department of Health issued the initial version of the rule Aug. 6, but some school districts allowed families to only opt-out of mask requirements with documented medical reasons. The revised Sept. 22 rule said opting out of mask requirements is “at the parent or legal guardian’s sole discretion” — effectively trying to prevent districts from requiring medical reasons.

Also, the revised measure restricted the ability of districts to require quarantining of students who have been exposed to COVID-19. It gives parents the option of allowing the “student to attend school, school-sponsored activities, or be on school property, without restrictions or disparate treatment, so long as the student remains asymptomatic.” The option does not apply to children who have COVID-19 symptoms.