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Florida Court Backs State Order Requiring Schools to Open for In-Person Instruction

A Florida appellate court on Friday overturned a state trial judge and preliminarily upheld a COVID-19 emergency order issued by the administration of Gov. Ron DeSantis that required most public schools in the state to reopen and offer in-person instruction by Aug. 31 or face a significant loss of state funding.

The ruling comes in a closely watched legal battle over education during the coronavirus pandemic between the Florida Education Association and other plaintiffs and the DeSantis administration, though it is somewhat anticlimactic in that all but a few school districts have opened for in-person instruction and the appeals court had signaled its likely decision in a procedural order in late August.

The plaintiffs "have invited the judiciary to second-guess the executive's discretionary actions exercising emergency powers during a public health emergency to address the health, safety, and welfare of students in Florida's public schools," said a unanimous three-judge panel of the First District Court of Appeal, in Tallahassee. "The courts must decline the invitation."

The panel's decision in DeSantis v. Florida Education Association overturns an injunction issued Aug. 24 by Leon County Circuit Judge Charles W. Dodson after a multi-day court proceeding over Zoom involving testimony by state education officials, teachers, public health experts, and others.

Dodson had said that the governor, Education Commissioner Richard Corcoran, and the Florida Department of Education had "arbitrarily prioritized reopening schools statewide in August over safety and the advice of health experts."

Dodson later lifted an automatic stay of his ruling, allowing the injunction to go into effect, but the 2nd District appellate court soon reinstated the stay and signaled that it was likely to uphold the emergency order.

In the new appellate opinion, Judge Lori S. Rowe said the challengers of the emergency order were unlikely to succeed on the merits of their various claims under the state constitution and that Dodson's injunction was improper.

Rowe said the union and fellow plaintiffs were unable to show that any students were denied the option to continue remote learning, or " alleged that any teacher was forced to return to the classroom, denied a requested accommodation from their employing school district, and then suffered harm."

Rowe also said that Dodson had waded into deciding a "political question" about whether the state violated its constitutional obligation to "make adequate provision" for a "safe, secure, and high quality" public school system.

"Even if the trial court were qualified to isolate and weigh the safety risks posed by the virus, whether it is safe enough to reopen schools is not a binary question answered with a simple yes or no based on the latest public health metrics on COVID-19," Rowe said.

The trial judge also improperly rewrote the state emergency order in his injunction, such as by eliminating the requirement for districts to submit reopening plans to receive full funding, Rowe said, which violate the separation of powers between the state executive branch and the judiciary.

Jacob Oliva, the chancellor of public schools in the Florida Department of Education, sent the opinion around to school superintendents throughout the state, his office said.

Andrew Spar, the president of the FEA, said in a statement that "The lower court got this case right, and the appellate court got it wrong. That's why we will appeal this misguided ruling."

Randi Weingarten, the president of the American Federation of Teachers (FEA is affiliated with both AFT and the National Education Association), said in a statement that "Florida educators will continue to explain the troubling facts on the ground in a state where virus spread is again increasing and how the governor, presumably because of his loyalty to President Trump, continues to put communities in harm's way."

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