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Education Lawyer: Expect Legal Challenges Over DeSantis Order On School Masks

man speaks at a podium, holding both hands in air
Rick Bowmer
/
AP
Florida Gov. Ron DeSantis speaks during the American Legislative Exchange Council Wednesday, July 28, 2021, in Salt Lake City.

The governor has threatened to withhold state funds from districts that attempt to align policies with CDC guidance for universal masks in school. A longtime education lawyer says the order is unconstitutional.

A leading education lawyer said Monday that Gov. Ron DeSantis’s executive order banning school districts from requiring masks appears to violate the Florida Constitution and will likely lead to legal challenges as schools prepare to open next week amid a surge in COVID-19 cases.

“The governor and the commissioner of Education (Richard Corcoran) are simply removing the authority from local elected school boards, which flies right in the face of the constitution,” said attorney Ron Meyer.

“The governor seems to have created the authority for this anti-mask decree out of thin air.”

Meyer cited Article 9, Section 4 of the Florida Constitution, which states: “The school board shall operate, control and supervise all free public schools within the school district.”

That language “is pretty plain that local school districts, elected by local citizens, have the power to operate, control and supervise public schools in the district,” he said.

“In the absence of extraordinary circumstances, which would be codified in an emergency declaration — and we don't have that — you have to look at the constitution and how the people of Florida said their schools should be operated,” Meyer said in an interview with WUSF.

On Monday, Florida set a new record for most people hospitalized with coronavirus cases on a single day with 10,682, according to the U.S. Department of Health and Human Services. That topped the state’s previous record set on July 23, 2020.

It also came after Florida reported its highest single-day total of new cases, with 21,683 on Friday.

The Centers for Disease Control and Prevention and the American Academy of Pediatrics recommend universal masking in schools for those over age 2, as the nation experiences a rise in cases of the highly contagious delta variant of coronavirus.

DeSantis’s executive order, issued Friday, says CDC guidance on masks for children “lacks a well-grounded scientific justification.” It also cites HB 241, the “Parents Bill of Rights” that the governor signed into law in June, barring the state from infringing on the fundamental rights of parents to make health care decisions for their children.

“He's giving lip service to relying upon the parental rights legislation House Bill 241. But that's a bill that confers rights on parents, not on the governor. So we question really whether what the governor has done is constitutional,” Meyer added.

The order also says the Florida Board of Education has the authority to withhold funds from any district that fails to comply with the executive order, which amounts to what Meyer called “bullying school districts to carry out (DeSantis') mandate.”

The Tallahassee-based attorney said he is semi-retired after practicing education law for almost 50 years. The Florida Education Association, the state's largest teachers union, was a longtime client.

He is not pursuing any litigation, but expects to see legal challenges arise.

“I think we will see litigation over this. We should see litigation over this. Because I think it's just once again putting political interests ahead of child welfare. And that's just never been a good thing.”

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