Florida school officials could face financial penalties for mask mandates

TALLAHASSEE, Fla. - Local school officials continue to grapple with implementing student mask policies as the school year begins this week in many counties.

And as school districts navigate a requirement that parents be able to opt-out of mask mandates for their children, the state is looking to target local school officials who don't comply with the restriction.

Gov. Ron DeSantis issued an executive order on July 30 aimed at barring local school boards from imposing mask mandates for students.

Triggered by the governor's order, the state Department of Health on Friday approved a new rule that, in part, requires school mask mandates to allow parents to opt-out of the requirement.

"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 a face-covering or mask," the health department’s rule said.

Following the agency’s approval of the new rule, various school districts have announced mask policies that include an opt-out provision --- but they are approaching the issue in different ways.

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Palm Beach County Superintendent Michael Burke, for example, issued an updated mask policy over the weekend that includes a provision allowing parents to opt-out of the mask requirement for their children without having to provide an explanation.

"In order to opt-out, parents who do not want their student wearing a facial covering must send a signed note to the school informing the child’s first-period teacher of this decision," Burke wrote in a letter to parents and staff.

At least one school district, however, is requiring parents who want their children to opt-out of wearing a mask to provide a medical reason for the exception.

Leon County Schools Superintendent Rocky Hanna held a press conference Monday detailing a temporary mask requirement for elementary- and middle-school students when they return to campuses Wednesday.

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"As hard as this is for me, I am going to require masks to be worn by all students (in grades) PreK through eight," Hanna said, "unless otherwise noted by a physician or a psychologist that the child has a health condition and there is a health reason as to why they really should not be wearing a mask in school, for either physical or mental health reasons."

DeSantis’ spokeswoman Christina Pushaw said that districts requiring a doctor’s note for students to be excused from wearing a mask are not following the governor’s order.

"All parents deserve the freedom to choose whether to opt-out their own child. This should not be contingent on their ability to procure a doctor’s note. These policies violate the spirit of the EO (executive order) protecting parents’ freedom to choose," Pushaw told The News Service of Florida in an email Monday.

DeSantis’ order, in part, directed state Education Commissioner Richard Corcoran to withhold funds from "noncompliant" school boards that impose mask requirements during the school year.

Pushaw didn’t say directly whether districts requiring a doctor's note to opt-out of mask-wearing would be subject to the withholding of funds as threatened in the governor’s order. But she provided new details about how the financial penalties might be applied.

It "would be the goal of the State Board of Education to narrowly tailor any financial consequences to the offense committed," Pushaw said.

Pushaw said that, for example, the state board could "move to withhold the salary of the district superintendent or school board members, as a narrowly tailored means to address the decision-makers who led to the violation of law."

But Mark Richard, a lawyer whose clients include the Florida Education Association, questioned whether the governor and top state officials are overstepping their legal authority.

"The first legal question that is raised by the department’s rule is, does the executive branch --- the governor and the department --- even have a legal authority to be usurping the obligations of a local school district?" Richard told the News Service Monday.

Richard maintained that elected school officials have constitutional duties to provide a safe education for schoolchildren.

"The second challenge will be, is it clear enough ... that it is a parent’s choice to opt-out," Richard said. "The difficulty from a legal point of view … is what about the parents’ choices to make sure their kids are safe?"

Richard said there are "many critical legal questions" being raised by the DeSantis administration’s rule.

"They’re looking down the barrel of a Department of Health regulation that says unvaccinated students can come to school regardless of the danger that it might present to their classmates or to the staff," Richard said.

Hanna addressed the uncertainty facing his school district during his Monday press conference.

"I know this speaks against what the Department of Health said, what our governor has said, what our state Board of Education says," Hanna said of Leon County’s school mask mandate. "At the end of the day, if something happened and things went sideways for us this week and next week as we started school, and heaven forbid we lost a child to this virus, I can’t just simply blame the governor."

Instead, Hanna added, he would blame himself for not taking the action he felt was appropriate to keep students safe.

"If there’s an out and I didn’t take the out, and I didn't do what was best for the children here in Tallahassee and Leon County, that’s on me. And every time I looked at myself in the mirror it would be really hard to answer to that guy," Hanna said.

DeSantis repeatedly has emphasized that families should be allowed to choose whether children should wear masks throughout the school day.

Pushaw’s email to the News Service Monday pointed to the governor’s comments.

"I also wanted to reiterate what Governor DeSantis has said several times in public remarks --- there are potential downsides to masking children for eight hours per day, from a developmental, emotional, academic, and medical perspective," she wrote.

FULL STATEMENT FROM GOVERNOR'S OFFICE BELOW: 

"With respect to enforcing any financial consequences for noncompliance of state law regarding these rules and ultimately the rights of parents to make decisions about their children's education and health care decisions, it would be the goal of the State Board of Education to narrowly tailor any financial consequences to the offense committed. For example, the State Board of Education could move to withhold the salary of the district superintendent or school board members, as a narrowly tailored means to address the decision-makers who led to the violation of law.
 
"Education funding is intended to benefit students first and foremost, not systems. The Governor’s priorities are protecting parents’ rights and ensuring that every student has access to a high-quality education that meets their unique needs."

Kind Regards,

Bailey Smith
Communication Manager | Governor Ron DeSantis