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Duval School Board Authorizes Legal Action Against Florida Department of Health

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SCREEN CAPTURE
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Superintendent Diana Greene during a special school board meeting September 28, 2021

Duval County Public School board members authorized the district’s legal team to sue the Florida Department of Health over an emergency rule requiring school districts to allow parents to opt their kids out of mask mandates and quarantine requirements in a 4 to 3 vote Tuesday. The state health department issued an emergency rule last week requiring mask opt-outs “at the parent or legal guardian’s sole discretion.”

The rule also allows parents to choose whether to quarantine their asymptomatic kids if they are close contacts of someone who has tested positive for COVID.

Duval County’s attorneys told school board members Tuesday that if they take legal action, the argument would focus on whether the state had the authority to issue that guidance as an emergency rule, without public notice or traditional regulatory processes.

“They had authority to do certain things to control the spread of communicable diseases, but [the argument is] that this rule is not designed to prevent the spread. This rule actually enables the spread of these diseases,” Laura Boeckman said, representing Jacksonville's office of general counsel.

Most school board members said their votes in favor of authorizing the legal action were about setting a precedent for local political control, rather than about face masks.

“It’s not about the politics of this moment today,” school board chair Elizabeth Andersen said. “It’s much more about preserving our authority to educate, teach, learn and keep kids safe in Duval County Public Schools.”

Tuesday’s special school board meeting was called in response to a September 23 letter from Florida’s education commissioner, Richard Corcoran. The commissioner told the district to add a parent opt-out option to its mask mandate within 24 hours or lose funding. The superintendent asked for an extension until Sept 30 to decide how to respond, citing the need for a publicly noticed school board meeting.

This is the same $22k threat as last month, which commissioner Richard Corcoran hasn't followed through on yet. The commissioner told the superintendent he's giving the district "one more opportunity to come into compliance." The school board decided Tuesday it will stay on course with its current 90-day emergency mask mandate.

Before the school board members made a decision Tuesday, dozens of parents pleaded with the board to lift the emergency mask mandate during more than two hours of public hearing.

The district’s current mask mandate is set to expire Dec. 5, unless the rolling weekly community COVID testing positivity rate is less than 8% and the number of new cases is less than 50 per 100,000 people.

According to the superintendent, the latest data show the weekly testing positivity rate is at 8%, nearing one facet of the district’s threshold for lifting the mandate, but there were still 170 cases per 100,000 people.

The superintendent said the district is already in compliance with the state’s new quarantine rule, because Duval Schools doesn’t have a formal policy. The county’s health department is issuing guidance to parents about when to quarantine children.

The district’s chief legal counsel, Rita Mairs, said her office won’t necessarily sue the state with this new authorization, but is exploring options and will be able to file a lawsuit without needing to come before the board again.

“Does that mean that we definitely will do that? Not definitely,” Mairs said. “The Office of General Counsel's point at this juncture, if we have a rule that we believe to be invalid, it's time to challenge it.”

The district’s attorneys are also in another defensive, legal battle brought by a group of parents against the emergency mask mandate. School board members who opposed authorizing legal action against the state said they were concerned about the mounting legal cost of adding a case against the state. Attorney Rita Mairs said the district might be able to split the cost with other districts who could join a lawsuit against the new rule.

The school district is set to respond to Commissioner Corcoran’s letter by Thursday. The commissioner threatened to withhold school board members’ salaries if the district doesn’t comply. The Biden administration has previously said districts can access federal funds to make up for state funding cuts related to mask mandates.

Contact Claire Heddles at cheddles@wjct.org, (904) 250 - 0926, or on Twitter at @claireheddles.