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Vouchers, Lawsuit Ratchet Up Florida School Mask Debate

Joann Marcus of Fort Lauderdale, left, cheers as she listens to the Broward School Board's emergency meeting, Wednesday, July 28, 2021, in Fort Lauderdale, Fla. A small but vocal group spoke vehemently against masks, saying their personal rights were being eroded and their children were suffering socially. (AP Photo/Marta Lavandier)
Joann Marcus of Fort Lauderdale, left, cheers as she listens to the Broward School Board's emergency meeting, Wednesday, July 28, 2021, in Fort Lauderdale, Fla. A small but vocal group spoke vehemently against masks, saying their personal rights were being eroded and their children were suffering socially. (AP Photo/Marta Lavandier)

TALLAHASSEE --- The State Board of Education approved an emergency rule Friday that will allow students who experience what officials labeled COVID-19 “harassment” to use state-backed vouchers to transfer to private schools or to move to different public schools or districts.

The rule, proposed by the Department of Education, was approved on the same day that the Florida Department of Health set new guidelines for COVID-19 protocols that would shield students from being mandated to wear masks.

“Students may wear masks or facial coverings as a mitigation measure; however, the school must allow for a parent or legal guardian of the student to opt-out the student” from wearing masks, a rule signed by state Surgeon General Scott Rivkees said in part.

The actions by education and health officials came as Florida continues to see a spike in COVID-19 cases because of the delta variant of the coronavirus and as classes get ready to start across the state. The rules also came after Gov. Ron DeSantis last week issued an executive order aimed at blocking districts from requiring students to wear masks.

Meanwhile Friday, a group of 12 parents who have children with disabilities filed a federal lawsuit challenging DeSantis’ executive order, alleging it discriminates against disabled students.

The lawsuit argues, in part, that by “refusing to allow school districts to implement mask mandates, Governor DeSantis has placed an illegal barrier for students with disabilities which is preventing our state’s most vulnerable students from returning to public schools.”

Filed in the federal Southern District of Florida by Miami attorney Matthew Dietz, the lawsuit names as defendants DeSantis, the state Department of Education, Education Commissioner Richard Corcoran and the school boards in Orange, Miami-Dade, Hillsborough, Palm Beach, Broward, Pasco, Alachua and Volusia counties. It alleges that the governor’s order violates the Americans with Disabilities Act and two other federal laws.

The rule approved Friday by the State Board of Education expands the state’s Hope Scholarship vouchers program to allow parents who object to masks or other coronavirus safety measures to send their children to other schools. The Hope Scholarship program was originally intended to help bullied students change schools,

The education rule defines COVID-19 harassment as “any threatening, discriminatory, insulting, or dehumanizing verbal, written or physical conduct an individual student suffers in relation to, or as a result of, school district protocols for COVID-19,” including masking, testing and quarantine requirements.

A notice of the rule posted on the Department of Education’s website said applying the Hope Scholarship program to instances of such “harassment” will “provide parents another means to protect the health and education of their child by moving their child to another school.”

Ben Gibson, an attorney who is vice chairman of the board, said during Friday’s meeting that parents should have the choice to change schools as districts set different rules in response to the “fluid” situation involving COVID-19.

“I think the rule is narrowly tailored, it aligns with the statute creating the Hope Scholarship, and the state board has absolute authority to define harassment further, which we’ve done,” Gibson said.

But the board’s consideration of the rule sparked a debate about whether addressing mask-wearing in schools truly constitutes an emergency.

State Sen. Gary Farmer, a Lighthouse Point Democrat who is an attorney, decried what he called the “unconstitutional” and “illegal nature” of the board’s emergency actions in a letter sent Thursday to Education Commissioner Richard Corcoran.

Farmer argued in his letter that the department improperly invoked an emergency rule-making process, based primarily on DeSantis’ repeated assertion that wearing masks can have harmful effects on children.

“As Governor DeSantis’ claims about mask related dangers are not only baseless but are also contradictory to the widely accepted and proven fact that masks are a necessary measure for the effective mitigation of COVID-19, it would be impossible for any department to provide the legally required justification for an emergency rule preventing mask mandates in schools,” Farmer wrote.

The department, however, contended in the notice that it had insufficient time to go through normal rule-making procedures before some districts begin the school year in less than a week.

DeSantis defended his efforts to prevent school mask mandates during a news conference Thursday in Tampa.

“It’s a parent’s choice in Florida, and government can’t override the parents,” DeSantis said.

But Agriculture Commissioner Nikki Fried, a Democrat who is running for governor in 2022, criticized DeSantis’ directive Friday.

Clutching a mask in her hand during a news conference at the Capitol, Fried said “this, right now, is the only safe opportunity for so many of our kids that are 12 (years old) and under” and ineligible to get vaccinated.

Also on Friday, the State Board of Education approved a separate emergency rule allowing students who are under home-quarantine orders following exposure to COVID-19 to be counted for attendance if they engage in an “educational activity” approved by the schools.

Several people who took part in a public-comment section of the board’s conference call expressed concern that school districts lack online learning options heading into the school year.

“We need to have a virtual option. I don’t see how you can do this without a virtual option. So, we need to know how it’s going to be enacted,” said Mario Salazar, who called the board from Miami-Dade County.

But board Chairman Tom Grady argued that all of Florida’s public school students have an online option through the Florida Virtual School.

The executive order DeSantis issued last week to prevent mask mandates, in part, directed Corcoran to withhold funding from “noncompliant” school boards. The lawsuit filed Friday contends that DeSantis does not have the authority to threaten funding to school boards if the boards seek to “protect” students with disabilities.

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