Florida order requiring all schools to reopen was illegal, judge rules

Florida’s state government cannot force schools to reopen this month, a judge ruled yesterday. The state’s order to reopen K-12 schools disregarded safety risks posed by COVID-19 and gave schools no meaningful alternative, according to the ruling issued by Judge Charles Dodson of the Second Judicial Circuit in Leon County.

On July 6, Florida Department of Education Commissioner Richard Corcoran issued an emergency order stating, “Upon reopening in August, all school boards and charter school governing boards must open brick and mortar schools at least five days per week for all students.” Schools that don’t meet this requirement could lose state funding. Corcoran, Governor Ron DeSantis, and other state officials were then sued by the Florida Education Association, a statewide teachers’ union; the NAACP; and several individual teachers and parents.

After summarizing the health risks of reopening schools during the pandemic, the judge wrote that the state’s order to reopen schools “takes none of that into consideration. It fails to mention consideration of community transmission rates, varying ages of students, or proper precautions. What has been clearly established is there is no easy decision and opening schools will most likely increase COVID‐19 cases in Florida. Thus, Plaintiffs have demonstrated a substantial likelihood of success in procuring a judgment declaring the Order is being applied arbitrarily across Florida.”

Dodson concluded that the state’s order violates the Florida state constitution “to the extent it arbitrarily disregards safety, denies local school boards decision making with respect to reopening brick and mortar schools, and conditions funding on an approved reopening plan with a start date in August.” Having found that the plaintiffs are likely to win at trial, the judge issued a temporary injunction that strikes down the controversial portions of the state’s school-reopening order.

“The districts have no meaningful alternative,” the ruling said. “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.”

Florida has so far recorded 600,000 COVID-19 cases and more than 10,000 deaths, the ruling said.

Governor appeals, claims suit is “frivolous”

The state may still be able to force schools to reopen this month unless another court order is issued. DeSantis, Corcoran, and the state Department of Education immediately appealed the ruling to Florida’s First District Court of Appeal and said in a court filing that the appeal “triggers an automatic stay pending review.”

Despite Judge Dodson finding that the state is likely to lose the case on the merits, Corcoran issued a statement saying, “We are 100 percent confident we will win this lawsuit.”

“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,” Corcoran said.

Florida Education Association President Fedrick Ingram said in a press conference held via Zoom, “shame on our governor and our commissioner of education who recklessly told us we had to have a brick and mortar option no matter what,” according to the Orlando Sentinel.

“Teachers want to be back in school,” Ingram also said. “We don’t want to risk our own lives.”

Local experts’ opinions disregarded

“Schools should reopen when the local decision-makers determine upon advice of medical experts, that it is safe to do so,” Dodson wrote in yesterday’s ruling, adding that the Florida constitution “requires safe schools.” The state “cannot constitutionally directly force schools statewide to reopen without regard to safety during a global pandemic,” which means the state also cannot achieve the same goal “indirectly by threatening loss of funding through the Order,” Dodson wrote.

The July 6 order said that schools must open in August “subject to advice and orders of the Florida Department of Health [and] local departments of health.” But the language about “local departments of health” didn’t actually provide leeway to remain closed.

As Judge Dodson wrote, the “Hillsborough County School Board called a special board meeting on August 6, 2020 with a panel of seven doctors to assess whether it was safe to reopen schools based on the current levels of COVID-19 in the community.” Five of the seven doctors said it wasn’t safe to reopen, while “[o]ne of the doctors stated it was not safe that day but maybe it would be in a few weeks,” and the other doctor declined to give an opinion.

“Based on the medical information at that meeting, the Hillsborough County School Board voted to delay the start of in‐person learning by three weeks, from August 24, 2020 to September 14, 2020. Virtual learning would still begin on August 24, 2020,” Dodson wrote.

The state wouldn’t allow it, Dodson explained:

The next day, August 7, 2020, the Superintendent and Chair of the Hillsborough County School Board received a letter from Commissioner Corcoran stating their proposal was not consistent with the Order. If they chose not to revise their plan, they would not receive the financial flexibility otherwise available under the Order. After another proposal, to delay reopening until September 7, was also rejected, Hillsborough County voted to reopen brick and mortar schools August 31, 2020. They had no real choice. Defendants arbitrarily prioritized reopening schools statewide in August over safety and the advice at health experts; and all school districts complied in order to avoid a drastic loss of State funding.

“Extremely unsafe conditions”

Evidence presented in a court hearing “demonstrated that some teachers are being told they must go back into classrooms under extremely unsafe conditions,” without enough room between desks for social distancing and without “adequate personal protection equipment,” Dodson wrote.

Plaintiffs showed evidence that “teachers throughout the State are deciding whether to retire, resign, or put themselves and their families in harms’ way,” the ruling said. “One witness testified that because of his preexisting condition, his doctor advised he will likely die if he contracts COVID-19. If he is forced to return to school, he will be risking his life on a daily basis.”

The state’s expert witness, Stanford University medical professor and doctor Jay Bhattacharya, testified that it is safe enough to reopen Florida schools, Dodson wrote. But the same expert “admitted Stanford University will not be holding in-person classes in the fall. Classes there will be taught remotely because of the pandemic.”

Even the court hearing on the state’s school-reopening order was conducted remotely, via Zoom. “That is because it has been decided it is unsafe to hold in-person trials in the Leon County courthouse during this highly dangerous pandemic,” Dodson wrote. “That was a local decision based on local conditions. Because of COVID-19, jurors and witnesses are not allowed to come into our courtrooms, almost all of which are larger than classrooms in our schools.”