SBAC files court challenge to FDOH emergency rule

The School Board of Alachua County (SBAC) has teamed up with school boards from Broward and Orange counties to overturn a Florida Department of Health (FDOH) emergency rule that addresses protocols for controlling COVID-19 in school settings.

Then-state Surgeon General Scott Rivkees issued Emergency Rule 64DER21-12 on Aug. 6. It came a week after Florida Gov. Ron DeSantis issued an executive order directing the FDOH and Florida Department of Education (FDOE) to “ensure safety protocol for controlling the spread of COVID-19 in schools” while complying with the Parents’ Bill of Rights, a recent bill that protects a range of parent rights.

Attorney David C. Ashburn filed a petition for “administrative determination of invalidity” Friday afternoon in Tallahassee. It states that the school boards are empowered by Article IX, Section 4 of the Florida Constitution to control and supervise all free public schools within their respective counties.

It also says part of that supervision requires that all children residing in Florida receive a “uniform, efficient, safe, secure, and high quality system of free public school that allows students to obtain a high quality education…”

The petition argues that while the FDOH emergency rule states schools “must allow for a parent or legal guardian of the student to opt-out the student from wearing a face covering or mask,” it does not “state that the opt-out must be unlimited, does not declare an intent to preempt related regulation or occupy the field, and does not otherwise prevent schools from establishing parameter for the opt-out.”

The filing makes the case that the districts are in compliance with the rule—as Alachua County Public Schools Superintendent Carlee Simon has consistently argued in correspondence with the state. 

“The School Boards’ Face Covering Policies comply with the requirement of the Emergency Rule since those policies include circumstances under which a parent or legal guardian can opt-out a student from wearing a face covering or mask,” the filing states. 

Those circumstances include medical or psychological reasons that are signed off on by a licensed doctor.

The petition also points to what it says are inconsistencies in the emergency rules protocols for symptomatic or COVID-19 positive students.

Symptomatic/positive students may immediately return to school if the student receives written permission to return from a medical doctor, but, according to the petition, “COVID-exposed students should return to school no earlier than four days from the date of last exposure, and even then only after receiving a negative COVID-19 test result.”

The petition goes on to state that because the FDOH refers to students wearing face covering as a mitigation measure, by providing parents with unlimited opt-out abilities that leads to students not wearing face masks, the rule does not act as a means to “control…preventable communicable diseases.”

The petition also contends that FDOH does not have any enforcement authority.

“[N]othing in the Parents’ Bill of Rights provides any rulemaking authority to the DOH,” it says, noting the Parents’ Bill of Rights recognizes governmental bodies can take “narrowly tailored” actions that are “reasonable and necessary to achieve a compelling state interest.”

The request from the petition is that the matter is assigned to an Administrative Law Judge to conduct a formal proceeding. The school boards want the court to declare the emergency rule “an invalid exercise of delegated legislative authority” and reimburse the boards for attorneys’ fees.

The case comes after a circuit court judge ruled the departments of health and education cannot enforce the governor’s July 30 executive order. The state immediately appealed that decision, triggering a stay that the plaintiffs—a group of Florida parents—have sought to have vacated.

A separate group of parents is challenging the state’s actions in federal court on the grounds that it violates the Americans with Disabilities Act.