Florida parents will be allowed to apply for vouchers and move their kids to another school if they perceive any type of “COVID-19 harassment” against their child in connection to district rules on masking, testing and isolation due to exposure, under a new emergency rule approved Friday.
The rule, approved unanimously by the State Board of Education, was hastily crafted by state education and health officials in response to Gov. Ron DeSantis’ executive order last week that called for rules that would protect parents’ decisions on whether their children should wear masks in K-12 schools.
DeSantis issued the order after several Florida school districts, including Broward County, announced plans to reinstate mask mandates amid a rapid rise in cases, including among children, many of whom are still not eligible for vaccines.
But the emergency rule and new protocols issued Friday by the Florida Department of Health concede that districts may, in fact, impose mask mandates if they allow parents to opt out of them. DeSantis had threatened to withhold state funding from districts that do not comply with the order.
The state’s actions are part of the governor’s larger push to prevent COVID-19 mandates such as mask requirements for children in schools. DeSantis has been more forceful on the matter in the last couple of weeks, after the U.S. Centers for Disease Control and Prevention recommended everyone, regardless of vaccination status, wear masks indoors at K-12 schools this fall.
“Giving parents options to make these decisions is not controversial. I’m proud that today we took action to make sure school administrators respect parents’ rights to make educational and healthcare decisions for their families,” DeSantis said in a statement after the rules his administration crafted were approved. “I will continue to fight to protect Florida’s families from government overreach and to preserve their God-given rights.”
The issue sits at the intersection of both the governor’s policy and his political agenda, as his political team amplifies his stance on the issue and fundraises off of it. President Joe Biden’s press secretary, Jen Psaki, on Friday criticized DeSantis’ decisions.
“Not only is Governor DeSantis not abiding by public health decisions, he’s fundraising off of this. So my view is that, and our view as an administration, is that teachers, parents in Florida, parents across the country, should have the ability and the knowledge that their kids are going to school in their safe environments. That shouldn’t be too much to ask,” Psaki said.
New COVID-19 protocols for Florida schools
Florida Department of Health officials unveiled new protocols that detail how the spread of the virus should be controlled in school settings.
The new protocols say students have the option to wear masks as a preventative measure but give parents and legal guardians the option to opt-out a student from following a school’s mask or face covering requirement.
The protocols include a “non-discrimination” clause that says students whose parents opted them out of a mask requirement shall not be excluded from any school-sponsored activities or isolated for not following the mandate. There is also a provision that says fully vaccinated students and asymptomatic kids who have tested positive for COVID-19 within the past three months can still attend school and activities.
Parents and legal guardians also must provide written consent before a school can test a minor for COVID-19.
The State Board of Education is also expanding the type of choice parents have for the upcoming school year by bringing school vouchers into the equation.
Parents can now claim “COVID-19 harassment” over a district’s COVID-19 rules and apply for a Hope scholarship to transfer kids to another school of their choice. Specifically, a parent can apply for a voucher in “instances where a child has been subjected to COVID-19 harassment will provide parents another means to protect the health and education of their child by moving their child to another school.”
The state has defined “COVID-19 harassment” broadly: “any threatening, discriminatory, insulting, or dehumanizing verbal, written or physical conduct an individual student suffers in relation to, or as a result of, school districts protocols for COVID-19, including masking requirement, the separation or isolation of students, or COVID-19 testing requirements.”
Furthermore, the rule says “unnecessarily isolating, quarantining, or subjecting children to physical COVID-19 constraints in schools poses a threat to developmental upbringing and should not occur absent a heightened showing of an actual illness or serious risk of illness to other students.”
Parents voice concerns
When the voucher rule was being considered during an hour-long conference call Friday, dozens of parents voiced opposition and support for it, exemplifying the polarization around the issue of mask wearing and other COVID-19 protocols in schools.
One parent, for instance, said that public health measures should not be considered “harassment” while another parent said that no child should be “segregated” or discriminated against based on their health decisions.
It’s unclear whether the delta variant of COVID-19 is making kids sicker than past versions of the disease. The governor’s office has said there’s no evidence to suggest it is. However, some hospitals in Florida are reporting an uptick in pediatric COVID patients. That reality may be attributed to the disease’s severity, or it could be a function of the sheer number of pediatric cases the state is reporting every week.
At any rate, the numbers show kids are certainly capable of contracting and spreading the delta variant. More than 10,000 children under 12 came down with COVID last week, according to the state.
Many Democratic state lawmakers and critics of the rule have raised questions about the rule’s legal standing. In particular, they question how the State Board of Education has the power to broaden the state law that governs the Hope scholarship program.
When the Legislature created the Hope scholarship program in 2018, the intent was to provide vouchers to kids who are being bullied or harassed. Democratic state lawmakers have argued the new COVID rule violated the intent of the law and that the executive branch does not have the authority to broaden the program’s statute.
‘The board has the absolute authority’
State Board of Education Vice Chair Ben Gibson argued the board does have that authority because it is expanding the definition of harassment under the law.
“The rule is narrowly tailored, and it aligns with the statute creating the Hope scholarship, and the board has the absolute authority to define harassment further, which we’ve done,” Gibson said.
Mark Richard, an employment and education lawyer who represents teachers unions, including the Florida Education Association, said the rule is a “power grab.”
“This is ... taking away the rights from local school boards to issue masking mandates to protect our kids. This safety crisis created by the Governor will assuredly end up in court as parents stand up to protect their families,” Richard said in an email Friday.
Several parents during the conference call questioned whether parents would be able to claim “COVID-19 harassment” and use a voucher to move their kid to “safe schools that require masks.”
The answer was yes.
“This could be on either side of whatever the mandate is. If a child for whatever reason is harassed by other students or anyone at the school in connection to their health protocols,” said Matthew Mears, the general counsel for the Florida Department of Education.
Mears added: “This rule allows a parent to access a scholarship that they could use to go to a different public school, they could cross to a different district … or you could access a private school that accepts paid scholarships.”
The Hope scholarship program currently has about $6.2 million readily available for disbursement, said Jared Ochs, a spokesperson for the Florida Department of Education.
The department, however, has not clarified whether schools would be required to accept the scholarships or if students would be allowed to keep the scholarship for the duration of their schooling or just this year.
Teacher union representatives have also voiced their disdain for the voucher rule, saying it is another attempt by the state to try and steer public money away from public schools.
“I am extremely upset and disappointed that the Florida Board of Education has voted to offer parents who protest mask mandates the choice to opt out or receive a voucher to send their children to a private or charter school that does not require masks,” Broward Teachers Union President Anna Fusco said in a statement. “Coupled with the state’s refusal to release $11 billion in federal COVID recovery funding to our public schools, this is a thinly veiled attempt to further erode and dismantle Florida’s public education system.”
Florida is one of seven states that has not yet submitted its plan to the U.S. Department of Education on how it plans to spend roughly $7 billion in federal COVID-19 relief funds earmarked for education and the safe reopening of schools.
A spokesman for the Department of Education did not immediately respond to requests seeking an explanation for the delay.
DeSantis’ executive order challenged
On Friday, a group of Florida parents of children with disabilities sued DeSantis, Education Commissioner Richard Corcoran, the state Department of Education and eight school districts in federal court over DeSantis’ July executive order. They argued the state and the governor are violating their children’s rights under the federal Americans with Disabilities Act.
“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,” the lawsuit alleges.
The parents argue in the lawsuit that the lack of adequate online schooling options combined with the lack of effective mask mandates make for an impossible choice for parents: Should children return to in-person schooling they fear is unsafe? Or should they leave the public school system?
The parents are seeking an injunction to stop the executive order from affecting their children. They’re also asking to be awarded attorneys’ fees, costs, expenses and unspecified damages.
Christina Pushaw, a DeSantis spokesperson, said the governor’s office was not yet familiar with the particulars of Friday’s lawsuit. But she referred to an answer DeSantis gave at a Thursday news conference in Tampa in which DeSantis said he was confident the state would win in a potential lawsuit challenging the executive order.
DeSantis’ executive order banning mask mandates in schools drew its authority from a bill the governor signed into law June 29: the “Parents’ Bill of Rights.” That law says the state is not allowed to “infringe on the fundamental rights of a parent” to direct the...health care” of a child “without demonstrating that such action is reasonable and necessary to achieve a compelling state interest.”
The Parents’ Bill of Rights legislation passed largely along party lines during this year’s lawmaking session. However, masking in schools was not a part of the discussion as the proposal made its way through the Legislature. In House and the Senate floor debates, lawmakers instead wrangled over other components of the bill. For example, House lawmakers, debated a section allowing parents to opt their child out of sex education classes.
While making the case for his executive order, DeSantis has contended that district mask mandates put into place during the 2020-2021 school year had essentially no effect on the safety of children.
The governor has cited a Brown University study from May which found no correlation between mask mandates and COVID-19 case rates between school districts in Florida and two other states.
The highly contagious delta variant of the coronavirus complicates the governor’s case for banning mask mandates, experts say. Even if infected children are not at high risk for the disease’s worst effects, they can still spread coronavirus to teachers far easier than during past surges.
“Last year it looked like kids alone could not sustain transmission. Now, it looks like kids alone can sustain transmission.” said Thomas Hladish, a research scientist at the University of Florida’s department of biology and the Emerging Pathogens Institute.
If kids are able to spread the disease to teachers easier, it could create staffing issues in public schools, Hladish noted.
It’s unclear how the state will handle potential teacher shortages. But Friday’s Department of Health rule did try to address the issue of student absenteeism. Those who contract the disease can return to school after they get a negative test and become asymptomatic — or if 10 days have passed since their symptoms started, and they haven’t had a fever in 24 hours.
A doctor may also write a note giving a student permission to return to school faster than the rules specify.