Students headed back to classrooms in Pasco County this week and began learning online for the first week of classes in Hillsborough County — while the impact of a temporary injunction and from a pending legal action are not yet clear.
In response to lawsuits filed by the Florida Education Association and individual plaintiffs, the Leon County Circuit Judge Charles Dodson granted a motion for a temporary injunction against Education Commissioner Richard Corcoran’s executive order.
“The order is unconstitutional to the extent it arbitrarily disregards safety, denies local school boards decision making with respect to opening brick and mortar schools, and conditions funding on an approved reopening plan with a start date in August,” the judge’s order says.
It remains to be seen how the decision will play out in Pasco County, where brick-and-mortar schools have reopened, and in Hillsborough, where they are scheduled to do so on Aug. 31.
In their closing arguments on Aug. 21, lawyers for the Florida Education Association, as well as for individual plaintiffs, argued that the state’s Education Commissioner Richard Corcoran’s Emergency Order 6 was “arbitrary and capricious” and, therefore, unconstitutional.
The order required school districts to submit reopening plans, which included opening every brick-and-mortar school for five days a week, with the school year starting by the end of August.
Kendall B. Coffey, an attorney representing the teachers union, said the state’s order “completely ignored safety. We all agree that a safe education is a paramount duty under the Florida Constitution.”
The state used “financial bullying” to coerce districts to comply with the order, Coffey said.
He noted what happened in Hillsborough County.
The board approved a reopening plan, which the state subsequently approved. Then, the board heard from a panel of medical experts, who advised against reopening classrooms, until COVID-19 positivity cases declined.
The board then voted to open online only for the first four weeks, before activating the previously approved plan.
The state rejected Hillsborough’s decision.
A letter from Corcoran told the district it would need to submit another plan, which justified any proposed closure, on a school-by-school, grade-by-grade and classroom-by-classroom basis.
The district ultimately agreed with state officials to open the school year online only for one week and then reopen brick-and-mortar schools.
But, that decision came after financial pressure from the state, Coffey said. “We know that Hillsborough was threatened with losing $200 million.”
The attorney said it would serve the public interest to allow local school districts to determine when it safe to return to school, without risk of financial penalty.
Attorney David Wells and Nathan Hill, representing the defendants, including Gov. Ron DeSantis and Education Commissioner Corcoran, said the state was acting under its authority to supervise the state’s 67 school districts.
They said the emergency order considers a range of student needs.
“What are the dangers of not going back to school?” Wells asked. “What happens when children have to learn from home?”
Besides offering the educational benefits of face-to-face instruction, schools provide a wide range of other services for students, Wells said. Schools ensure students have access to meals, provide services for special needs students and offer an opportunity for intervention when students need protection in abusive homes, or require mental health services.
Remote learning, by contrast, raises issues over whether families have enough digital devices to meet individual student needs, and whether households have internet access, he said.
Both Wells and Hill objected to any attempt to have the court rewrite Corcoran’s order.
“If the governor and the department of education are neutered and left helpless to carry out their constitutional obligations, then the unions will have their way. The schools will not open,” Wells said.
Attorney says key issue is safety for students, staff
Attorney Billy Wieland represented some individual teachers challenging the state’s action.
He told the judge that the issue boils down to this: ‘If we send children and teachers back into the classroom for live, face-to-face instruction — are they going to be safe and secure? We believe you are in the best position to prevent avoidable death.”
But Hill, representing the state, countered: “It is not for this court to second-guess the policy decisions of the executive branch. What they (opposing attorneys) want the court to do, really, is to write a new emergency order. And, that is simply not something the court has the power to do in this situation.”
During closing argument, the judge asked Wells: “Under the emergency order, what choice did the districts have, but to submit a plan in accordance with the emergency order?”
Wells replied: “It’s very clear on Page 6 (of the emergency order), you don’t have to submit a plan.”
The judge responded: “Right, but you lose a lot of funding if you don’t do that.”
Wells acknowledged: “There’s no question about that. I’m not going to dance around it. That’s absolutely right.”
The judge also wanted to know: “To what extent does medical or scientific information play a part in Executive (Emergency) Order 6? It says you’ve got to open.”
Wells said the state had to consider: “The risks I have if I move forward are X. The risks that I have if I don’t open school are Y. How do I make the balance?”
The judge also wanted to know what happens to teachers who will be forced to return because the number of students who want face-to-face instruction.
Hill told the judge: “There is a grievance procedure. They have an adequate remedy of law, under their contracts.”
Meanwhile, another court case is pending. The United School Employees of Pasco has requested an expedited case. No additional information was available on that case, as the afternoon of Aug. 24.
Published August 26, 2020