Legality of school mask opt-out requirement still an open question

Battle over masks in schools

Florida Commissioner of Education Richard Corcoran said he’s opening an investigation into two Florida School Districts’ for their decision to require a doctor’s note to opt-out of their mask mandates.

A third district, Broward, which took similar action Tuesday, is likely to face the same threat.

But still to be litigated is the question of whether the state’s opt-out mandate is legal in the first place.

“There is no room for error or leniency when it comes to ensuring compliance with policies that allow parents and guardians to make health and educational choices for their children,” wrote Corcoran in letters sent to Alachua and Leon County Superintendents.

In the strongly-worded letters, Corcoran threatened to recommend to the State Board of Education that the salaries of school board members and the superintendents in the two counties be withheld if they don’t allow parents the final say on masking their children.

“A child’s life is worth more than their salaries and they’re going to put the life of that child first,” said Representative Robin Bartleman.

Bartleman joined with other state Democrats on a virtual press conference Tuesday, where they decried the Commissioner’s threats.

While data provided by the State Department of Health found similar case rates in schools with and without mask mandates last year, Rep. Fentrice Driskell argued the opt-out mandate ties the hands of districts and puts students at risk.

“What I would say to the superintendents and schools boards, is to stand strong. Stand firm. You know, you’re not alone,” said Driskell.

The school districts were given until 5 PM Wednesday to prove they are in compliance with the state’s opt-out policy.

A lawsuit filed by parents from across the state challenging whether the state has the authority to dictate local school mask policy doesn’t get a hearing until Friday.

“The constitution is pretty clear in the regard. School boards that we elect to oversee local schools are best suited to make these policy decisions,” said Attorney Ron Meyer.

Meyer worked on the school reopening lawsuit brought by parents and the state teachers union last year.

While it was ultimately unsuccessful, Meyer said the final ruling in the case set some precedent that could chart a path forward for the new masking lawsuit.

“In that lawsuit, the First District Court of Appeal said that policy decision is to be made by local elected school boards. Not the Department of Education, not the State Board of Education and certainly not the Governor,” said Meyer.

Meyer added the mask lawsuit brought by parents may face a problem raised in the school reopening suit: The question of legal standing.

He said he believes the suit will have a better chance of succeeding if school districts join in.

That could be coming soon.

During Broward County School Board’s meeting Tuesday, the board indicated it did plan to pursue a legal challenge to the opt-out requirement.