TALLAHASSEE - Six school districts have challenged a revised Florida Department of Health rule that seeks to block student mask requirements and allow parents to decide whether children go to school after being exposed to people with COVID-19.
Attorneys for the school boards in Miami-Dade, Broward, Orange, Duval, Alachua and Leon counties filed the challenge late Wednesday afternoon at the state Division of Administrative Hearings. The districts have required students to wear masks to try to prevent the spread of COVID-19, bucking Gov. Ron DeSantis’ administration on the issue.
The challenge contends, in part, that the Department of Health overstepped its authority with the rule, which allows parents to "opt out" of student mask requirements. The school boards also allege that the rule is "arbitrary and capricious" and that the department improperly issued the rule as an emergency measure.
"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."
The petition is the latest in a series of legal cases rooted in a July 30 executive order issued by DeSantis to try to prevent school mask requirements. DeSantis contends that parents should be able to decide whether children wear masks.
The Department of Health issued a rule Aug. 6 to carry out DeSantis’ executive order and drew challenges from the school boards in Miami-Dade, Broward, Orange, Alachua and Leon counties. As a hearing neared before an administrative law judge, the department issued a revised rule Sept. 22 that went further than the initial version.
The revised rule included a change that took aim at school districts --- including the six in the new challenge --- that allowed mask opt-outs only for documented medical reasons. The revised rule said opting out of mask requirements is "at the parent or legal guardian’s sole discretion."
Also, the new 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.
The rule and DeSantis’ executive order are based, at least in part, on a new state law known as the "Parents Bill of Rights," which seeks to ensure the rights of parents to make health-care and educational decisions for their children.
In the 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.
"DOH did not identify any legislative authority for implementing a rule intended to protect parental rights," the petition said. "Nor has DOH explained how protecting parental rights was ‘necessary’ for it to fulfill its limited rulemaking authority under (a section of state law) to control communicable diseases."
Jamie Cole, a Fort Lauderdale attorney for the school districts, said Thursday that the department improperly enacted the rule on an emergency basis, rather than going through a process that would include public notice and a hearing. Cole said he also filed a public-records request for data that the department said it used as a basis for the rule but did not receive the data.
"Why did they need to do this in a secretive, emergency way?" Cole said.
The Department of Health said in the rule that the measure conforms to DeSantis’ July 30 executive order.
"ln order to permit students to continue in-person learning, to minimize the detriment to students and school personnel from the added burden of recurrent removal of students, and to benefit the overall welfare of students in Florida, it is necessary to provide updated emergency guidance to school districts concerning the governance of COVID-19 protocols in schools," the rule said.
The challenge was filed as the State Board of Education prepared to meet Thursday afternoon to consider whether as many as 11 school districts have violated the Department of Health rule. The Department of Education has already imposed penalties on Alachua and Broward counties, withholding money equal to the amounts of school-board member salaries --- though the federal government has stepped in to cover the lost money.