School boards’ challenge to FDOH Emergency Rule fails; appeal filed

BY JENNIFER CABRERA

On October 6, six Florida school boards (Alachua, Broward, Duval, Leon, Miami-Dade, and Orange) filed a petition with the Division of Administrative Hearings to challenge two provisions of the Florida Department of Health (FDOH) Emergency Rule that requires parental opt-out of school mask mandates and allows parents to send asymptomatic children to school even after the child has been identified as a contact of someone who tested positive for COVID-19. Today that petition was dismissed by Deputy Chief Judge Brian A. Newman of the Division of Administrative Hearings.

Among the findings of fact in the order are these:

• The school boards are subject to and must comply with the Emergency Rule.
• The FDOH is the state agency with the authority to adopt rules governing the control of preventable communicable diseases in public schools.
• “Petitioners argue that no immediate public health emergency exists to justify the Emergency Rules while simultaneously maintaining that the Emergency Rule prevents them from implementing more restrictive protocols that are necessary to keep children safe.”
• The regular rule-making process can take one to three months, which is “too long to adopt COVID-19 protocols that are informed by changing COVID-19 case data.”
• “The Emergency Rule is not unsafe for children.”
• “Children have died from COVID-19, but that outcome is extremely rare. The COVID-19 Situation Report case fatality rate for people under 16, and for people aged 16 to 29, is 0.0%. This data was submitted jointly by Petitioners and Respondent and its accuracy was not questioned. Experts called by both sides support the obvious conclusion to be drawn from this data.”
• “Dr. Lisa Gwynn, a pediatrician called by Petitioners, acknowledged that COVID-19 infection poses less of a mortality risk for children than seasonal influenza.”
• “Petitioners failed to prove that the Emergency Rule Opt-Out provisions facilitate the spread of COVID-19 in schools. On the contrary, the evidence admitted in this case established that the Emergency Rule Opt-Out provisions strike the right balance by ensuring that the protocols that govern the control of COVID-19 in schools go no further than what is required to keep children safe and in school.”
• “Petitioners failed to prove that the Opt-Out provisions of the Emergency Rule exceed Respondent’s grant of rulemaking authority”

The order concludes, “the Petition… is hereby DISMISSED.”

Christina Pushaw, Governor Ron DeSantis’ Press Secretary, released a written statement following the order: “This was the first proceeding that reached the legal merits of the rule, and as we expected, the court affirmed that the rule is lawful. Any school board politician in Florida who persists in defying the law and infringing upon parents’ rights will face consequences.”

The school boards have already appealed the order to the Fourth District Court of Appeal.

A written statement from Jackie Johnson, Communications Director for Alachua County Public Schools, said, “Obviously we are disappointed by the ruling. However, we knew that whatever the decision, it would be appealed, and we will certainly be appealing. At this point, there are no plans to change the district’s current masking protocols, which will allow parents of elementary and middle school students to opt out their children beginning December 7. High school parents may already do so.”