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School district has until 10 a.m. Wednesday to reply to DOE letter on mask mandate

By MEGHAN BRADBURY - | Sep 7, 2021

The School District of Lee County has until 10 a.m. Wednesday to reply to the Florida Department of Education regarding the implementation of a mask mandate that took effect on Sept. 1.

The letter from Commissioner Richard Corcoran dated Sept. 3 was sent to Superintendent Dr. Ken Savage and School Board Chair Debbie Jordan. It addressed compliance with an emergency rule from the Florida Department of Health and also a ruling by Leon County Judge John C. Cooper who found that Gov. Ron DeSantis exceeded his authority when he issued an executive order banning such mandates.

“Recent reports in the media indicate that the Lee County School Board has taken action inconsistent with the emergency rule by limiting or conditioning the parental ability to opt out of a face covering or mask mandate. Your rationale may be based on Judge Cooper’s recent order; however; at this point, an automatic stay is in effect. This means the Department of Education may resume enforcement of the Florida Department of Health’s emergency rule. In the event the stay is lifted, then enforcement action will be automatically tolled,” Corcoran wrote in the letter.

The State Board of Education oversees the performance of district school boards in enforcement of all laws and rules and the commissioner of education may “investigate allegations of noncompliance with law, or state board rule and determine probable cause.” Due to this statute, the commissioner, in commencing with the investigation, demanded that the School District of Lee County provide a written response by the imposed deadline to document how they are in compliance with the Florida Department of Health Emergency Rule.

“Our legal team is reviewing the letter and the district will respond by 10 a.m. on Wednesday as directed by the DOE,” District spokesperson Rob Spicker said in an email. “In addition, an Emergency Motion to Lift the Stay was filed in the Leon County case by the plaintiffs and we are closely monitoring.”

On Aug. 6, Florida Surgeon General Dr. Scott Rivkees issued the rule that requires any policy that mandates masks by a school district “must allow for a parent or legal guardian of the student to opt-out the student from wearing a face covering or mask.” This rule does not require medical documentation to opt-out of a mask mandate.

The Florida Department of Health and the Florida Department of Education were directed by Executive Order 21-175 to execute rules that ensure safety protocols in regards to controlling the spread of COVID in schools.

Commissioner Corcoran’s letter states that “the order directs further that any such action must at minimum be in accordance with Florida’s Parents’ Bill of Rights and protect parents’ right to make decisions regarding masking of their children in relation to COVID-19. Because the Florida Department of Health is the agency authorized to adopt rules governing the control of communicable diseases, the Florida Department of Health adopted an emergency rule establishing protocols or controlling COVID-19 in public schools. The rule proves, in part, as follows: students may wear masks or facial coverings as a mitigation measure; however, the school must allow for a parent, or legal guardian of the student to opt-out the student from wearing a face covering or mask.”

Corcoran’s letter concluded by saying “parents have a fundamental right to direct the upbringing, education, and care of their minor children. The Department of Education will protect that right.”

Also weighing on on the mask mandate/opt out controversy is is the Florida State Attorney General’s Office.

On Sept. 1, Attorney General Ashley Moody issued an advisory letter to the Suwannee County School District saying that “under Florida law, public officials are obligated to obey the legislature’s duly enacted statute until the judiciary passes on its constitutionality.” The letter sent in answer to a request for legal clarification sent by the district further states that “this principle applies not only to statutes, but to regulations that an official has a clear statuary duty to comply with.”

Moody concluded her letter stating that “based on the foregoing, it is my opinion that the district must comply with Rule 64DER21-12 and any other applicable authorities unless and until the judiciary declares them invalid.”

The School District of Lee County was asked late last week for a response to the Attorney General’s advisory opinion.

“The Attorney General’s opinion is an advisory opinion and not law. They are advisory only and are not binding in a court of law,” the school district replied by email.