Florida’s Board of Education finds 8 counties with mask mandates are out of compliance with state COVID policies

Florida

Hillsborough and Sarasota counties were taken off of the agenda after recent changes to their mask policies

File photo featuring a child with her COVID mask (Getty Images)

TAMPA, Fla. (WFLA) — In a new Florida school board meeting, eight school districts across the state were found to have probable cause for being out of compliance with the COVID policies in schools, and were given 48 hours to provide documentation that they were in fact compliant.

Arguments from both the state’s education commissioner and the various school superintendents relied on the Parents’ Bill of Rights to defend, or reject, school masking policies.

The board started off by discussing Alachua County, which was one of the first schools to require students to wear a mask in early August. State Board of Education Chair Tom Grady said the review process would be similar for each county on the agenda.

“Specifically, consideration of probable cause for non-compliance with the department of health emergency rule regarding protocols for controlling COVID-19 in school settings,” Grady said.

The chairman had Commissioner Richard Corcoran present first, before starting the county-by-county vote and review.

The United States Department of Education’s new Project SAFE, which requires that school systems implement CDC mask policies and other health recommendations and strategies to receive grants, are eligible for schools so long as they “commit to maintaining the CDC strategy in the 21-22 school year,” as detailed by Corcoran.

The other eligibility requirement is that they have been financially penalized by the state for implementing such guidelines, Corcoran said. He said that to date, Alachua County was one of two counties to have applied for and received such a grant. The school district received $147,719 from The Project to Support America’s Families and Educators.

“I strongly believe that this federal grant program improperly attempts to interfere with the state board’s authority to manage our state’s educational system,” Corcoran said. “Education is a state responsibility, not a federal one and one given to this board under our state’s constitution. What we are witnessing in these Project SAFE grants is one of the most egregious violations of the 10th Amendment of the U.S. Constitution and Florida sovereignty in our lifetime.”

He said the grants encourage school districts to violate Florida law and said that the state’s enforcement actions are crucial to the rule of law in Florida schools and that allowing the federal government to “buy off” school districts with grants, it neutralizes, nullifies, and abolishes the state board’s authority.

Addressing the rights of citizens and a recent memorandum from U.S. Attorney General Merrick Garland, Corcoran said it was a matter of rights and not being intimidated by the government.

“We stand foremost within the rights of our citizens, to govern the upbringing of their children and to lawfully speak and be heard, regardless of political disposition. Put short, we will not be strong-armed,” he said. “Nor will we allow others to be.”

He promised a swift response to such attempts at control against the rights of Florida citizens.

The commissioner asked the Florida Board of Education to level additional sanctions on Alachua County to include the amounts paid from federal grants to school boards’ members and superintendents in districts that are out of compliance, should they concur with his recommendation finding the boards to be out of compliance with current state policy.

Corcoran justified this additional action as federal grants could not be blocked by the state itself. Each superintendent was given five minutes to speak.

In a similar fashion to the public comment portion of the meeting, Alachua County Superintendent Dr. Carlee Simon relied upon the provisions of the Parents’ Bill of Rights to make her argument.

Unlike Commissioner Corcoran and the vast majority of parents in the comment portion, Simon argued that the Parents’ Bill of Rights enabled the local mask rules in Alachua County’s schools. She went further and stated that she was troubled by the lack of transparency in the construction of the rules now in effect.

During Simon’s time to speak, when ESSER funds were mentioned, both Board Chair Tom Grady and Commissioner Corcoran interrupted, having taken issue with the subject brought up at all outside of the agenda for the meeting that was set.

Additionally, Corcoran encouraged Simon and other superintendents who may bring up ESSER fund applications to “get caught up with the media” and to do some research as far as the state’s now-entered application for those funds, but still said mention of it was “moot.”

Simon still maintained that Alachua’s board and policy was in compliance with the latest DOH emergency rule on mask policies in school districts, written by new State Surgeon General Dr. Joseph Ladapo.

When voting on the Alachua School District’s compliance or non-compliance, the state board members voted to rule that Alachua County Schools were out of compliance.

Repeating the process, Corcoran and Grady held discussion and votes for the Brevard County School District.

Cutting to the chase, Brevard’s Superintendent Dr. Mark Mullins spoke briefly, then introduced Chairwoman Misty Haggard-Belford.

Belford held that the board’s position had not changed, nor had the state board’s. She also cited the Parents’ Bill of Rights as proof of compliance while still retaining the county mask mandate in schools, making a similar argument to the one posed by Dr. Simon using language from the new law.

Belford said they opened to try and follow the rules set by the state, but the results were “catastrophic” regarding case numbers and health risks as a result.

“We continue to see high transmission levels in our community,” she said.

Unlike Simon, neither Belford nor Mullins were interrupted, but also did not bring up ESSER funds. The state’s Board of Education voted that Brevard was also out of compliance.

Broward County was the next county to face review. Corcoran recommended the board find them out of compliance. The county is the second to have applied for and received a Project SAFE grant, nationwide.

Interim Superintendent Dr. Vickie L. Cartwright spoke in defense of Broward’s policies.

Cartwright’s defense focused first on actions taken in August regarding mask policy implementation and guidance from the U.S. Centers for Disease Control and Prevention. Their protocols were maintained by a vote among Broward Board of Education members, according to Cartwright. She also mentioned that the district was contesting state actions in court.

Citing the Parents’ Bill of Rights, Cartwright said the school district was, in fact, in compliance with the law and state policies due to the language of the law and the inclusion of the medical opt-out for masking by Broward parents.

Cartwright also called into question the necessity of including parental “sole discretion” for masking in schools for individual students. She said the policy, worded in such a way, “does not promote a secure environment” for student health. Cartwright said three other counties had joined their lawsuit over the new emergency rule.

Following Cartwright’s time, the state board voted to approve Corcoran’s recommendation and found the county out of compliance.

Dr. Diana Greene, the Duval County Public Schools superintendent, spoke next. The format for Corcoran to read his recommendation and the superintendent to speak followed the same process as the previous two counties.

Originally, Greene said that Duval County had allowed a simple opt-out form for parents to have their children not wear masks. She said that as school started, six employees died from COVID-19. Eight days into the school year, there were 492 cases of COVID in the district.

“The number of cases at that time was so alarming compared to the 2021 school year,” Greene said.

She said that the Department of Health’s inability to perform timely case investigation directly led to jeopardy for student and staff health risks.

Like previous speakers, Greene spoke about mitigation strategies and the rise of cases in the district. New rules passed by the Duval County Board of Education allowed medical opt-out, which she said kept them in compliance with state law while still having a mask policy in place. Instead, she said the latest emergency rule was itself out of compliance with state law, relying upon arguments based within the Parents’ Bill of Rights.

Despite Greene’s statements in defense of their compliance and policies, the vote by the Florida Board of Education on Duval County found the school district out of compliance.

Leon County came after Duval. Corcoran again said he found the county school district had probable cause to be found out of compliance. He recommended the board find them out of compliance as well.

Superintendent Rocky Hanna for Leon County Schools spoke for the district.

Hanna stated that the district’s policies were based on “well-accepted science” and data, citing previous policy which allowed opt-out. He said that it became evident that the policy had to be changed when the district’s daily positivity rating doubled, and a third-grade student died from COVID-19.

“The vast majority of nationally recognized health care experts, including CDC, American Medical Association, and the American Academy of Pediatrics, along with local pediatricians here in Leon County strongly believe the wearing of masks while indoors helps mitigate the spread of this deadly virus,” Hanna said. “Because of these reasons and following the data, we were forced to implement a slightly more stringent mask policy than we originally had at the start of the school year.”

Again, the language of the Parents’ Bill of Rights, and its provisions, were cited by the superintendent as justification for the policies the school district had put in place. Referencing the language of the latest emergency rule, Hanna continued his argument that the school district had complied. He said that the policy was “narrowly tailored” and to fit the “compelling state interest” of protecting young students who were not eligible for vaccination.

Both of those requirements are directly from the Parents’ Bill of Rights. Hanna said his county was fully in compliance with state law.

He went further, stating that he and his colleagues in Leon County believe that the latest rule oversteps its authority through the new provisions, and asked that the state board allow the county to remain free of sanctions. Hanna asked that Corcoran amend his recommendation to include the superintendent’s salary in the sanctions.

Corcoran rejected that request when asked by Grady about the amendment. Still, the state board voted that Leon County Schools were out of compliance.

Miami-Dade County’s vote on probable cause for being out of compliance was presented next by Corcoran. Again, the language used by the commissioner matched that used in the previous recommendations given for each county discussed in the meeting.

The school district superintendent, Alberto M. Carvalho, spoke next. He defended the schools’ mask policies and cited science, data, and recommendations of infectious disease experts as justification for their choices.

“We’ve been partners at every turn and it has worked,” Carvalho said of their working with the state’s Department of Education. Miami-Dade schools were opened for in-person lessons. Then when the delta variant of COVID-19 arrived, Carvalho said the situation had changed.

Still, he says the county followed recommendations of the American Association of Pediatrics “consistently” and noted that cases had started declining in early September. He asked the state board to delay actions, as he believes the policies currently in place have helped mitigate the spread of COVID-19, and remained hopeful that the trend would continue, while still supporting parents’ rights.

Carvalho critiqued the new DOH rule, and said the new policy may allow parents to harm other families’ children through the opt-out policy set by the latest emergency rule. Citing language from the Parents’ Bill of Rights, he said the rule is being challenged in court.

Like the previous counties, the state board voted to find Miami-Dade County Public Schools out of compliance with the state’s policies.

Orange County’s School District followed Miami-Dade. Again, Corcoran delivered his recommendation that the county had probable cause to be found out of compliance. Again, the motion passed to approve the commissioner’s findings. Superintendent Dr. Barbara Jenkins spoke.

Jenkins cited the policy of requiring a medical opt-out and the positivity rate and high transmission status as reasons for their policy. She said that the greatest concern of the district was student safety, and cited state statutes to protect student health “as constitutional officers” that made the mask policy necessary for in-person learning.

Citing statutes from the Parents’ Bill of Rights and the latest emergency ruling, Jenkins argued in favor of the mask mandate and said the new emergency rule was outside of the authority of the state, and said the policy itself did not do the job of “preventing a communicable disease,” even though it came from the Department of Health. Funding for education was also referenced, with the lack of funding for virtual learning possibilities, and a less restrictive option for mitigation not being available nor proposed.

Jenkins said the policies in Orange County were necessary to control COVID-19. The board voted that Orange County was out of compliance.

Corcoran discussed Palm Beach County next, and again recommended they had probable cause for being out of compliance.

Palm Beach Interim Superintendent Michael J. Burke spoke in favor of the district’s policies. He said that all parties were in agreement that in-person learning was the preference for the school year. However, Burke said that the delta variant created a challenge of keeping schools open while protecting students and staff. The mask policy in place allowed opt-out, but cases rose.

“The delta variant proved to be a game-changer,” Burke said.

Case numbers and high transmission make the policies necessary, according to the superintendent.

Without a less-restrictive means for mitigation available while vaccination is unavailable for students under 12, Burke said mask policies are necessary to protect student health. He said that nothing in the Parents’ Bill of Rights prevents such policies so long as they are narrowly tailored and reasonable, an argument made by each of the superintendents who spoke before him.

Still, Burke said he and his colleagues remain optimistic due to the lowering case numbers across the state, and believes the 90-day limit on the policy in Palm Beach keeps them in compliance in addition to the ability to medically opt-out. The vote by the state board found the county school district out of compliance.

Neither the state Board of Education’s members, the commissioner, nor any of the county superintendents appeared willing to give ground on their positions. The process for each county to be found out of compliance was largely identical, regardless of different points made by each superintendent.

Three counties were removed from the agenda for decisions on whether or not to find them out of compliance or if there were probable cause to do so. Hillsborough County, Indian River County, and Sarasota County all recently made changes to policy, and were taken off of the agenda.

The counties found to be out of compliance were given 48 hours (Saturday evening) to submit documentation proving changes to meet compliance standards, or face similar sanctions to Alachua County, according to Corcoran’s recommendations.

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