A Florida state appellate court on Monday issued an opinion suggesting it was likely to rule in favor of Gov. Ron DeSantis and his administration’s order that schools reopen and offer in-person instruction amid the coronavirus pandemic.
But the intense legal battle over the DeSantis administration’s emergency order that required most school districts in the state to open their campuses five days a week by Aug. 31 or face a significant loss in state aid may be turning into an increasingly irrelevant sideshow.
As the Aug. 31 deadline arrived, 18 more Florida districts opened brick-and-mortar schools on Monday, joining a majority of the rest of the state’s 67 county school systems that had opened sometime earlier. (Three school systems—Miami-Dade, Broward County, and Palm Beach County—have been permitted by the state to offer only remote learning past Aug. 31 because of high rates of COVID-19 infection in their areas.)
“Today is the first day we can literally say we are fully open,” Florida Education Commissioner Richard Corcoran said Monday at an education forum with DeSantis. About 60 percent of students—some 1.6 million—are attending school in person, while 40 percent are continuing remote learning, he said.
DeSantis said at the forum that “our view on the schools was, every parent in Florida should have an option about whether they have their kid [attending] in-person instruction or whether they should remain in distance learning. ... This is an important part of making sure we’re empowering parents.”
The unanimous opinion by a three-judge panel of the First District Court of Appeal in Tallahassee was meant to explain a rather technical development—the reinstatement a few days earlier of a stay of a state trial court’s Aug. 24 preliminary injunction that blocked the emergency order.
But the opinion in DeSantis v. Florida Education Association largely tipped the hand of the state appellate court.
“The state has shown a substantial likelihood of success on the merits of its appeal,” the appeals court said. “We find merit in the state’s argument that [challengers of the emergency order] failed to meet their burden to show that a temporary injunction is necessary to prevent irreparable harm. ... [T]he emergency order does not compel any student to return to a school for in-person instruction. Nor does it require any teacher to return to a brick-and-mortar school for in-person instruction.”
Corcoran said the state appellate court opinion reinstating a stay of Leon County Circuit Judge Charles W. Dodson’s Aug. 24 injunction was “an absolute rebuke of the trial court trying to take that right away from parents and students.”
The appellate court certainly took a drastically different view of the case brought by the Florida Education Association and other plaintiffs than Dodson did.
On one level, the appeals court’s action might be described as routine. Once the state appealed Dodson’s decision, the injunction was automatically stayed because the appeal was filed by a state officer. But at the request of the plaintiffs, Dodson had lifted the stay last week, saying “potential irreparable injury will be suffered by hundreds of thousands of school children, many teachers, and the community at large” if his injunction were blocked during an extended appeal.
“Teachers are resigning or retiring due to the risk of exposure to COVID-19,” Dodson wrote. “Young students are being exposed to the virus while there is uncertainty as to the long-term effects of the virus and whether children can transmit the disease to adults.”
The appeals court panel disagreed, saying that “nothing in the emergency order requires any teacher or any student to return for in-person instruction at a brick-and-mortar school.”
“As to teachers, whether a school district assigns them to in-person instruction or virtual instruction is a matter between those teachers and their employing school districts,” said the appeals court opinion by Judge Lori S. Rowe. “Governor DeSantis, Commissioner Corcoran, and the other appellants have no say in the matter. And the school districts that do have a say are notably absent from this lawsuit.”
And while many students and their families have chosen virtual instruction, Rowe said, “parents of over 1.6 million students have decided that the benefits of students returning to school for in-person instruction outweigh any risks posed by COVID-19.”
The appeals court said the stay will remain in effect pending the outcome of the appeal over the injunction.
The FEA, the lead plaintiff in the challenge to the emergency order, said it was disappointed with the reinstatement of the stay.
“The reopening order is still unconstitutional, and local districts still should be allowed to make the best and safest decisions for everyone in their schools. We will press ahead in the appellate court,” FEA Vice President Andrew Spar said in a statement. “But we’re also looking to our districts. Schools already are struggling with Covid-19, and families need transparent information about what’s going on. The governor talks about choice, but real choice requires complete information. Educators and parents want solutions for dealing with the coronavirus outbreaks that already are occurring.”
But school districts never joined the legal fight (as the state and the appellate court repeatedly have pointed out). And even districts that had sought to delay the opening of brick-and-mortar schools beyond Aug. 31, such as Hillsborough County, were proceeding with plans to have face-to-face instruction resume today as the legal skirmishing continued.
At the Aug. 25 school board meeting of the 219,000 district covering the Tampa area, board members briefly heard updates about Dodson’s injunction. But they spent nearly three hours discussing and voting on a wide range of other matters related to the pandemic and the reopening of schools.
“This virus is a new way of life,” said Melissa Snively, the chair of the Hillsborough County school board. “It is probably never going away. We are going to have to continue to think about how education is going to change for our students after the first four weeks, after the first nine weeks. We’re going to be having conversations five years from now abut COVID-19.”
A version of this news article first appeared in The School Law Blog.