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As School Districts Weigh Legal Battles Over Masks, Florida Offers Anti-Maskers A Way Out: Vouchers

Will kids be required to wear masks again this school year? School districts are still fighting with the state about it. Here, masked students at Carrie P. Meek/Westview K-8 cross in front of a school bus in this Oct. 5, 2020 photo.
Emily Michot
Miami Herald
Will kids be required to wear masks again this school year? School districts are still fighting with the state about it. Here, masked students at Carrie P. Meek/Westview K-8 cross in front of a school bus in this Oct. 5, 2020 photo.

How will the fight over masks in Florida schools play out in courtrooms and classrooms?

As if masks weren’t controversial enough, the DeSantis administration just inserted vouchers into the debate about reopening schools during the COVID-19 pandemic.

Florida school district leaders have been strategizing in recent days how to circumvent Republican Gov. Ron DeSantis’ recent executive order — essentially a ban on mask mandates in classrooms, which flouts guidance from the federal Centers for Disease Control and Prevention and the American Academy of Pediatrics.

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Meanwhile, legal experts call the governor's executive order unconstitutional, because the state’s governing document explicitly gives local elected school board members the power to “operate, control and supervise” the public schools in their districts.

Under the order, released last Friday, DeSantis directed state education and health officials to enact new regulations stopping school districts from infringing on “parental choice” — parents’ decisions on whether or not to send their kids to school in masks.

At stake is state funding for education. If state officials make good on their threats, large school districts like Miami-Dade and Broward counties could stand to lose upwards of tens of millions of dollars each for enforcing mask mandates.

And now, there’s a new twist. As some school districts and parent groups mull taking the state to court, the Florida Department of Education has returned to a familiar solution: expanding access to vouchers, state-backed scholarships, that allow students to attend private schools.

Typically, these scholarships support students who have disabilities or are from low-income families. The newer, so-called "hope scholarship" — pioneered by former Republican House Speaker Richard Corcoran, who was DeSantis’ pick for state education commissioner — was designed to allow an escape for students who are victims of bullying. Now, Corcoran wants the state board to allow students to escape school districts’ protocols for mitigating the spread of COVID-19.

During an emergency conference call slated for 11 a.m. Friday, the Florida Board of Education will consider a new rule that would expand the “hope scholarship” to provide “parents with a mechanism to transfer a child to a private school or another school district … when a school district’s COVID-19 health protocols, including masking, pose a health or educational danger to their child,” according to an announcement of the meeting published Thursday.

“The agency finds that the potential for student learning loss and educational disruption with schools starting next week, creates an immediate danger to the public health, safety and welfare of students and requires emergency action,” according to the announcement.

Critics of DeSantis argued on social media that the proposed rule expanding the “hope scholarship” was a thinly-veiled strategy to draw more students out of traditional public schools, sending them instead to religious schools or privately-operated charter schools, some of which are tied financially to state education policymakers.

“This is unfortunate and very disingenuous to the process,” state Sen. Shevrin Jones, a Democrat from West Park and former public school teacher, tweeted on Thursday. “The Hope scholarship was to be used for students who were being bullied in public schools, and now we are expanding this to be for parents who don’t want their kids to wear a mask.”

Others see the proposal as an implicit admission that the state does not have the power to overrule school boards’ decisions on masks and other COVID-19 policies. If mask mandates are banned, then why would a child need a voucher to attend a school without one?

Will South Florida Districts Fight DeSantis’ Ban On Mask Mandates?

Students in Palm Beach and Monroe counties return to school next week with mask-optional policies.

Broward County Public Schools — which kicked off the statewide battle when school board members voted last week to keep a mask mandate in place for the upcoming school year — is slated to reopen Aug. 18.

Just days after school board members in both Broward and Gadsden counties voted to mandate masks, DeSantis held a press conference announcing the executive order to stop them. At a restaurant in Cape Coral, surrounded by anti-mask activists, DeSantis announced it would be up to parents, not the C.D.C. or school boards, whether children are masked up in school.

“There will be no restrictions and no mandates in the state of Florida,” he said to the cheering crowd.

After initially announcing that the district planned to comply with DeSantis’ executive order, Broward leaders clarified Wednesday that board members would consider their options during a special meeting slated for Aug. 10.

“I really think we should explore options to circumvent the governor’s executive order,” said Broward school board member Sarah Leonardi. “If there’s a fight to have, the fight over the health and safety of our students and employees is the one that I’m willing to have.”

Leonardi left the classroom when she won her board seat last year. Now she can no longer teach in Broward, because it would be a conflict of interest for her to serve as her own boss. But she did work as a substitute teacher last school year in neighboring Palm Beach County, so she can relate to what it’s like to stand in front of a classroom full of students during a global pandemic.

Wearing masks wasn’t a big deal for her or her students, she said.

“I would not feel comfortable going into a classroom with people unmasked. I don't even feel comfortable going to a restaurant right now,” said Leonardi, adding that she is six months pregnant.

“My heart really goes out to our teachers who are now being once again put in a position where they can't control their own safety,” she said. “And it's just really, really disturbing to me.”

From a medical and scientific perspective, without any consideration of politics, the answer is very, very clear: Mask up in schools, vaccinated or not.
Dr. Aileen Marty, Florida International University infectious disease specialist

Leonardi said she has received a flood of emails from parents and teachers who want the district to defy DeSantis and mandate masks anyway. Another idea has also emerged: “Segregate classrooms based on masks versus unmasked kids.” She believes that would be logistically impossible.

But a medical adviser working with Miami-Dade County Public Schools plans to suggest that exact strategy.

“You can group people by how risky they want to be. They want to be really risky? Put them all together. Be risky together,” said Dr. Aileen Marty, an infectious disease specialist at Florida International University and a member of the Miami-Dade district’s task force for reopening safely during the pandemic. “Let the people who understand science and the real risk to themselves, their family and their community have a safe environment.”

Miami-Dade — the largest district in the state and fourth largest in the country — has not yet made a decision about its mask policy for the school year beginning Aug. 23, awaiting formal advice from Marty and the other task force members.

Marty agrees with federal, state and local medical authorities who have recommended universal masking in schools. That’s especially important now, she said, as the delta variant has prompted record numbers of new cases and hospitalizations, including among children. Those under 12 are not yet eligible for vaccines.

“From a medical and scientific perspective, without any consideration of politics, the answer is very, very clear: Mask up in schools, vaccinated or not,” Marty said.

Is DeSantis’ Executive Order Legal?

When DeSantis employed a similar strategy last year — threatening state funding if school districts didn’t reopen at least five days a week for all students who wanted to attend in-person classes — Florida was under a state of emergency. DeSantis ended that status in July and has refused to renew it.

Ironically, without the broader powers afforded to him by the emergency declaration, DeSantis might not have the authority to trump school boards.

Ron Meyer, a veteran education lawyer in Tallahassee who has often represented the state teachers’ union, argues DeSantis’ executive order is an unconstitutional overreach into the realm of local elected officials.

It’s still possible that the Miami-Dade and Broward districts could choose to go the legal route. The school district in Alachua County is moving forward with a mask mandate, despite the inevitability of a fight with the state over it. And other school districts are trying to get creative: In Duval County, for example, parents would have the ability to “opt out” of the mask mandate in writing.

If a school board doesn’t sue, parents likely will, Meyer said. “I think we'll see some litigation.”

“I think parents need to be heard,” said Meyer. “If parents are upset about the prospect of sending their children to school in an unsafe, unmasked environment, they need to let their voices be heard. Whether that's legally or politically, it's not for me to say but it seems to me that the parents’ voices here probably will carry a lot of weight.”

Jessica Bakeman is Director of Enterprise Journalism at WLRN News, and she is the former senior news editor and education reporter. Her 2021 project "Class of COVID-19" won a national Edward R. Murrow Award.
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