Case File: Florida reopening order may proceed, absent unconstitutional provisions

When drafting reopening orders during COVID-19, educational agencies in Florida should allow for local conditions, including local transmission rates, to be incorporated into the decision-making process.
By: | August 25, 2020
Photo by Deleece Cook on UnsplashPhoto by Deleece Cook on Unsplash

Case name: Florida Educ. Ass’n v. DeSantis (Fla. Cir. Ct. 08/24/20)

Ruling:  A Florida circuit court declared that portions of an emergency order issued by the Florida Department of Education requiring school districts to reopen for in-person learning or risk loss of funding violated the state constitution. The circuit court held that the order was unconstitutional to the extent that it disregarded safety, denied local school boards authority to make reopening decisions, and conditioned funding on an approved reopening plan. However, the court held that the order would pass constitutional muster if its unconstitutional provisions were severed. It granted the Florida Education Association’s motion for a temporary injunction.

What it means: When drafting reopening orders during COVID-19, educational agencies in Florida should allow for local conditions, including local transmission rates, to be incorporated into the decision-making process. When that’s not done, the order stands a chance of violating state constitutional prohibitions against arbitrary action. One of the flaws in Florida’s emergency reopening order, according to a state circuit court, was that it appeared not to consider the fact that transmission rates, and thus the risks associated with in-person instruction, varied widely among districts. That helped convince the court that the order was being applied arbitrarily in violation of the state constitution.

Summary: A Florida circuit court found that an emergency order effectively mandating in-person instruction in all school districts was arbitrary and capricious and violated the state constitution’s requirement that schools operate safely. The circuit court held that the order was enforceable if the unconstitutional provisions, including language requiring schools to reopen for in-person learning for five days a week, were severed. The Florida Education Association, among other plaintiffs, requested a temporary injunction barring the Florida ED from enforcing the order, which conditioned funding on a district’s pledge to reopen for in-person learning. State Circuit Court Judge Charles Dodson explained that to obtain the injunction, the plaintiffs had to establish: 1) a substantial likelihood that they would succeed on the merits; 2) lack of an adequate remedy at law; 3) irreparable harm absent the injunction; and 4) that injunctive relief would serve the public interest. Addressing the “likelihood of success” element, Judge Dodson pointed out that the Florida Constitution requires schools to operate safely. But by tying a school’s continued funding to its agreement to reopen, the state ED “reduced the constitutional guarantee of a safe education to an empty promise,” Judge Dodson wrote. He also pointed out that the order, in essentially mandating schools to open for in-person learning, failed to weigh factors such as community transmission rates and varying ages of students. Thus, the plaintiffs demonstrated they were also likely to succeed in establishing that the order violates the Florida Constitution because it is being applied arbitrarily across the state, the court held. Next, the court found that, given the high risks associated with contracting and spreading COVID-19, the plaintiffs established irreparable harm. Finally, the court rejected the state ED’s argument that the plaintiffs had an adequate remedy at law based on their options of taking sick leave, retiring, filing worker’s compensation claims, or filing a grievance. Finally, an injunction would serve the public interest, the court stated. “Reasoned and data-driven decisions based on local conditions will minimize further community spread of COVID-19, severe illness, and possible death of children, teachers and school staff, their families, and the community at large,” Judge Dodson wrote. The court struck the unconstitutional provisions from the order and stated that retained jurisdiction to enforce the order. The Florida ED may appeal the order.

Joseph L. Pfrommer, Esq., covers education legal issues for a DA sister publication.