Judge dismisses ACPS case disputing DOH rule

Alachua County Public Schools (ACPS) will maintain its current COVID-19 mitigation strategies despite a judge’s dismissal of a challenge six Florida schools filed against a Department of Health (DOH) emergency rule.

Deputy Chief Judge Brian Newman of the Division of Administrative Hearings (DOAH) referred to Florida Statute 2021, 1003.22 when he issued the order Friday afternoon that states the “Florida Department of Health is the state agency with the authority to adopt rules governing the control of preventable communicable diseases in public schools.”

Six school districts in Florida including Miami-Dade, Leon, Duval, Orange, Broward and Alachua counties challenged Emergency Rule 64DER21-15 that Florida Surgeon General Dr. Joseph Ladapo issued on Sept. 22.

The challenge brought into question the parent opt-out allowance of face mask wearing and quarantining if a student is asymptomatic. The school districts argued that a medical expert should be in charge of those decisions.

But Newman stated in his ruling that the petitioning school boards “are subject to and must comply with the Emergency Rule.”

Chapter 1003, section 22 of the Early Learning-20 Education Code states that, “School-entry health examinations; immunization against communicable diseases; exemptions;” are “duties of Department of Health.”

“Petitioners failed to prove that the Quarantine Opt-Out provisions of the Emergency Rule are vague, fail to establish adequate standards for agency decisions, or vest unbridled discretion in the agency,” Newman stated in his decision.

He also wrote that the rule is not “unsafe for children,” adding that “COVID-19 infections can be extremely dangerous, but the risk of death and serious illness lies overwhelming with older people.”

“Children have died from COVID-19, but that outcome is extremely rare,” Newman wrote. “The COVID-19 Situation Report case fatality rate for people under 16, and for people aged 16 to 29, is 0.0%. This data was submitted jointly by Petitioners and Respondent and its accuracy was not questioned.”

The 25-page ruling ends with the order: “it is ORDERED that Petitioners failed to prove that Emergency Rule 64DER21-15 is an invalid exercise of delegated legislative authority, and the Petition to Determine the Invalidity of Department of Health Emergency Rule 64DER21-15 is hereby DISMISSED.”

In an emailed statement Friday evening, ACPS spokesperson Jackie Johnson said the district is disappointed in the decision and will keep battling the state’s rule.

“We knew that whatever the decision, it would be appealed, and we will certainly be appealing,” Johnson wrote. “At this point, there are no plans to change the district’s current masking protocols, which will allow parents of elementary and middle school students to opt out their children beginning Dec 7. High school parents may already do so.”

Gov. Ron DeSantis’ office also issued a statement and acknowledged that the school districts are appealing the decision.

“Such an appeal will be difficult given the judge’s factual finding that the parental opt-out protocols ‘strike the right balance by ensuring that the protocols that govern the control of COVID-19 in schools go no further than what is required to keep children safe and in school,'” the statement said.