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| Leon County Judge Charles Dodson is charged with overseeing the lawsuit challenging the constitutionality of Florida's school reopening order. [ 2nd Judicial Circuit of Florida ] |
TampaBay.com
Jeffrey S. Solochek, August 24, 2020
The Florida Department of Education quickly appealed the ruling, which called the state's actions unconstitutional.
Leon County Circuit Judge Charles Dodson ruled in favor of Florida’s statewide teachers union Monday, saying Department of Education officials “essentially ignored the requirement of school safety” when they ordered campuses to reopen for face-to-face classes this month.
Battle over COVID-19 school openings goes to the courts
Leon County Circuit Judge Charles Dodson ruled in favor of Florida’s statewide teachers union Monday, saying Department of Education officials “essentially ignored the requirement of school safety” when they ordered campuses to reopen for face-to-face classes this month.
Dodson also found that the department’s order, issued July 6, trampled on school boards’ constitutional authority to operate their own school systems.
“The districts have no meaningful alternative,” Dodson wrote. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”
Taryn Fenske, a spokeswoman for the Department of Education, said the state had filed its appeal before the close of business Monday. Education commissioner Richard Corcoran said he was “100 percent confident” the state will win.
The lawsuit was filed by the Florida Education Association, a labor organization representing about 145,000 teachers across the state.
“This fight has been, and will continue to be, about giving every parent, every teacher and every student a choice, regardless of what educational option they choose,” Corcoran said in a statement. “If you are one of the 1.6 million students who have chosen to return to the classroom, a parent, or a classroom teacher that wanted to educate their student in person, we strongly encourage you to call the Florida Education Association and tell them to drop this frivolous lawsuit.”
Through questioning during Friday’s closing arguments, Dodson hinted that he was interested in a solution that did not have school districts facing a monetary hit for taking actions that they deemed in the best safety interest of their students and staff.
“An injunction in this case will allow local school boards to make safety determinations for the reopening of schools without financial penalty,” he wrote. “This is what the local school boards were elected to do.”
He ruled that the order would become constitutional if the unconstitutional portions were deleted, as the plaintiffs’ lawyers argued during their closing comments. So he struck out the order language relating to a required date to begin in-person classes, mandatory reopening plans and provisions that in recent weeks have tied districts’ reopening decisions to state funding.
The judge used Hillsborough County’s experience as a primary example in the case. The Hillsborough School Board voted 5-2 to delay reopening its classrooms by four weeks, relying on the advice of several local health experts.
When informed of that move, Corcoran deemed the district’s action as violating the reopening order and warned officials they could lose up to $23 million monthly if they did not make changes. After trying to reach a compromise, the district changed direction without a School Board vote and announced it would reopen campuses Aug. 31 — three weeks earlier than planned.
Students began their classes online on Monday.
The district “had no real choice,” Dodson wrote. The state, he found “arbitrarily prioritized reopening schools statewide in August over safety and the advice of health experts; and all school districts complied in order to avoid a drastic loss of State funding.”
Hillsborough School Board member Tamara Shamburger, who testified for the plaintiffs, said she was excited about the ruling and pleased the judge recognized the importance of local decision making in these matters. She anticipated the board, which meets Tuesday, will revisit the situation.
“Our vote is still our vote, which is to delay the first four weeks,” Shamburger said, noting no action had been taken to overturn that decision. “I absolutely believe that ... we must have this conversation.”
The Pinellas County School Board, which opened both in-person and remote classes on Monday, also meets on Tuesday, where it, too, could discuss the ruling and its role in reopening.
Board chairwoman Carol Cook said she was thrilled the judge ruled in favor of local control of schools. But she had her doubts about changing direction on the school year.
“So far, I’m hearing that things went well” on the first day, Cook said. “I would have to really give it some serious thought whether we want to throw everybody back into disarray.”
Pasco County School Board vice chairman Allen Altman did not anticipate any change in his district, where about 60 percent of students returned to campuses for classes on Monday.
“I’ve talked to several school leaders today and they all say that opening went great,” Altman said via text message. “They reported that students, parents and school staff were all excited to be back.”
Ron Meyer, one of the union’s attorneys, said that the judge’s order would allow districts act as they see fit. They could delay reopening buildings without financial penalty, for example, if local officials decided to do so based on the advice of health experts.
It still could be a dicey move, though, he noted.
That’s because the state’s appeal triggers an automatic stay of the ruling. The plaintiffs likely will seek an order overturning the automatic stay, Meyer said.
If the stay remains in effect, it’s as if the judge’s order does not exist. If the stay is removed, then the order stands.
Florida Education Association president Fed Ingram called on Corcoran and Gov. Ron DeSantis not to appeal the case.
“Let’s work together,” Ingram said during a video news conference Monday. “We can do this together.”
The judge issued his order after two full days of testimony, and two hours for closing arguments. The lawyers representing the state presented witnesses to back the contention that children do not pass COVID-19 to adults, which the plaintiffs called “fallacious,” and that the risks of keeping schools closed are more detrimental than opening them.
They further argued that teacher plaintiffs in the case, who said they were faced with returning to unsafe work conditions or quitting, had no legal injury. They said teachers could file grievances against their districts through their contracts to fight such decisions.
But the defense lawyers also acknowledged that the districts did face stiff financial penalties if they didn’t comply with the reopening order. They suggested that, since no school boards were party to the suit, they were not coerced into adopting the plans, which they weren’t forced to submit.
Dodson disagreed with that assessment, suggesting they were financially bullied into compliance, which he said is unconstitutional. He further noted that the order’s provision allowing boards to seek advice and orders from health department officials to remain closed was “essentially meaningless,” though it sounded good.
“Plaintiffs presented convincing evidence that state health officials were instructed not to provide an opinion on the reopening of schools,” Dodson wrote. “Defendants reduced the constitutional guarantee of a safe education to an empty promise, in violation of the Florida Constitution.”
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| Randi Weingarten, AFT President |
BY JOHN KRUZEL - 08/30/20 10:30 AM EDT
Teachers unions are waging court fights across the country aimed at unwinding what they say are unsafe and politically motivated timetables for reopening schools that risk exposing personnel to the coronavirus pandemic.
State officials eager to ramp up brick-and-mortar operations are facing lawsuits from Florida to Texas to Iowa over reopening plans as well as access to the COVID-19 infection data needed to monitor the rate of spread within school communities.
At the same time, lawsuits are flying from the opposition direction: Parents in several states, including New York, Massachusetts and Oregon, dissatisfied with web-based teaching alternatives, are suing to force state officials to reopen physical schools sooner as courts are increasingly called upon to referee the fight over education in the age of coronavirus.
“A legal storm is brewing as safety and social distancing requirements for a physical return to school begin to take shape around the country,” Maria Ferguson, executive director of the Center on Education Policy at George Washington University, wrote on the education website The 74.
As millions of students prepare for the first day of school — whether in-person, remote or a hybrid of the two — the fight over the reopening physical school buildings is likely to intensify.
The debate over in-person K-12 instruction planning is inseparably tied to the issues of child care needs and parents’ ability to return to the workforce to help revive the struggling economy, all of which is playing out against the backdrop of a fast-approaching November election in a country that has seen nearly 6 million cases and more than 181,000 deaths from COVID-19.
Perhaps the highest-profile legal battle is taking place in the courts of Florida, where Republican Gov. Ron DeSantis signed off last month on an emergency order over school reopenings.
Under the order, most Florida school districts would be required to hold in-person classes five days a week by the end of August or risk losing funding. President Trump, who counts DeSantis as a close ally, has also threatened to cut off federal funding for schools if they do not resume in-person learning this fall.
The Florida policy prompted a lawsuit from the Florida Education Association (FEA), a statewide teachers union, and several other plaintiffs in favor of a more cautious return to in-person teaching.
“Public schools are not designed for COVID safety, and indeed, the government has recognized that they are high-contact environments,” said Kendall Coffey, the lead plaintiff’s attorney in the Florida case, who likened prematurely opened schools to “disease factories” and called the Florida policy “financial bullying.”
“There are any number of issues, in terms of hallway sizes, the flow of students in and out of classrooms, ventilation, even how many students go into the bathroom,” he told The Hill. “There are many elements that are virtually impossible to guarantee when you're dealing with children in large amounts.”
On Aug. 24, a Florida judge ruled in favor of the union and temporarily halted the statewide order. In his decision, Judge Charles Dodson struck down the order’s unconstitutional provisions and blasted DeSantis for having “essentially ignored” the state's constitutional requirement that schools be operated safely.
“The districts have no meaningful alternative,” wrote Dodson, of Leon County. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”
A Florida appeals court agreed to temporarily halt Judge Dodson’s order from taking effect while DeSantis appeals.
The state contends that the benefit of in-person instruction outweighs the health risks associated with reopening brick-and-mortar schools. Some Florida school officials have also declined to disclose incidents of positive COVID-19 cases to school communities, citing the need for patient privacy.
Attorneys for Florida have also argued in hearings that courts should not substitute their judgment for that of policymakers who have balanced all the equities and decided a prompt in-person reopening is the best policy.
Randi Weingarten, president of the American Federation of Teachers (AFT), one of the largest teachers unions in the country, said Florida has its priorities backward.
“What their arguments show is that they don’t care about human life,” Weingarten told The Hill.
According to Weingarten, internal AFT polling in June showed that about 3 in 4 teachers said they would be comfortable returning to the classroom if guidelines from the Centers for Disease Control and Prevention (CDC) were implemented in schools.
But she predicts that attitudes among teachers have shifted dramatically in past months as the Trump administration has failed to adequately manage the virus to ensure schools can be reopened safely.
“We're polling right now,” she said. “And my hunch is that just like the public polls, it's totally flipped.”
The AFT is backing lawsuits in Florida, New Mexico and Texas. Before schools can reopen safely — for what Weingarten calls “the biggest move indoors that the nation has done since March” — the group says local positivity rates should be below 3 percent and schools should have visibility into daily transmission rates.
The union is also pushing for protocols that involve testing, contact tracing and isolation and implement best practices from the CDC for things such as ventilation, cleaning, physical distancing, mask-wearing and other safeguards.
As teachers unions make their case in court, parents in at least five states have filed lawsuits of their own to accelerate school reopenings.
A nonprofit litigation group called the Center for American Liberty, co-founded by lawyer and GOP official Harmeet Dhillon, is backing one such suit in California. Democratic Gov. Gavin Newsom’s restrictions on in-person school openings in the Golden State will affect an estimated 80 percent of K-12 students.
“The effects of this ham-handed policy are as predictable as they are tragic,” the lawsuit filed in a federal court in California states. “Hundreds of thousands of students will essentially drop out of school, whether because they lack the technological resources to engage with ‘online learning’ or because their parents cannot assist them.”
The litigation raises concerns about everything from school closures exacerbating the achievement gap and disproportionately harming special needs students and those without convenient internet access to challenges over the constitutional validity of government health orders.
Weingarten, of AFT, said it’s important to remember that despite seemingly irreconcilable differences over the policy details, all parties want to see schools reopen as soon as it’s safe to do so.
“None of us believes that remote is a substitute,” she said. “It's a supplement.”
