Ron DeSantis, in His Official Capacity as Governor of the State of Florida; Richard Corcoran, in His Official Capacity as Commissioner of Education; Florida Department of Education v. Florida Education Association; Stefanie Beth Miller; Ladara Royal; Mindy Festge; Victoria Dublino-Henjes; Andres Henjes; National Association for the Advancement of Colored People
CourtDistrict Court of Appeal of Florida
Date FiledOctober 9, 2020
Docket1D20-2470
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D20-2470
_____________________________
RON DESANTIS, in his official
capacity as Governor of the
State of Florida; RICHARD
CORCORAN, in his official
capacity as Commissioner of
Education; FLORIDA
DEPARTMENT OF EDUCATION;
and STATE BOARD OF
EDUCATION,
Appellants,
v.
FLORIDA EDUCATION
ASSOCIATION; STEFANIE BETH
MILLER; LADARA ROYAL; MINDY
FESTGE; VICTORIA DUBLINO-
HENJES; ANDRES HENJES;
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE, INC.; and NAACP
FLORIDA STATE CONFERENCE,
Appellees.
_____________________________
No. 1D20-2472
_____________________________
RON DESANTIS, Governor of
Florida, in his official capacity
as Governor of the State of
Florida; ANDY TUCK, in his
official capacity as the chair of
the State Board of Education;
STATE BOARD OF EDUCATION;
RICHARD CORCORAN, in his
official capacity as
Commissioner of Education;
FLORIDA DEPARTMENT OF
EDUCATION; and JACOB OLIVA, in
his official capacity as
Chancellor, Division of Public
Schools,
Appellants,
v.
MONIQUE BELLEFLEUR,
individually and on behalf of
D.B. Jr., M.B., and D.B.;
KATHRYN HAMMOND; ASHLEY
MONROE, and JAMES LIS,
Appellees.
On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.
October 9, 2020
ROWE, J.
In March 2020, state and local governments across Florida
issued emergency orders that restricted the movement of
Floridians, shuttered businesses, and closed public schools. The
lockdown orders followed guidelines provided by President Donald
J. Trump and the Centers for Disease Control and Prevention
(CDC) announcing a fifteen-day strategy to “slow the spread” of the
novel coronavirus known as COVID-19. See The White House, 15
Days to Slow the Spread (Mar. 16, 2020),
https://www.whitehouse.gov/articles/15-days-slow-spread/.
2
By slowing the spread of the virus, public health officials
hoped to “flatten the curve” by reducing the peak number of people
requiring health care at one time so that demands on the health
care system did not exceed its capacity. See Ctrs. for Disease
Control & Prevention, Interim Pre-pandemic Planning Guidance
(Feb. 2007), https://stacks.cdc.gov/view/cdc/11425.
Following the school closure orders, Florida’s schools shifted
to online instruction. But soon, the fifteen days to “slow the spread”
turned into thirty, and days stretched into months. Florida’s
schools did not reopen for the rest of the academic year. With a
new school year approaching and with COVID-19 still present in
Florida, policymakers had to decide when and under what
conditions would it be safe enough to reopen schools for in-person
instruction. Students, parents, teachers, and policymakers were
divided on how to answer that question.
Stakeholders disagreed on what public health metrics should
be used to determine when to reopen schools and on the
appropriate interventions to implement when schools did reopen
(social distancing, mask policies, class sizes, and so on).
Underlying these disagreements were very different perceptions
about the risks posed by COVID-19, the risks posed by not
reopening the schools, and views on which risks were more
tolerable. Still, after many public debates and after weighing the
risks, parents of 1.6 million Florida students expressed their
preference for their children to return to the classroom. Parents of
other Florida students, believing that returning to school posed too
great a risk, chose online instruction. Teachers were similarly
divided. Some were eager to return to the classroom; others were
not, expressing health concerns for themselves or others in their
household.
Also prominent in the debate over school reopening was the
potential for a sharp decrease in funding to school districts if large
numbers of students chose not to return to the classroom. Because
state funding to school districts is lower for students enrolled in
online classes, the expected shortfalls were substantial.
Governor Ron DeSantis, Commissioner Richard Corcoran, the
Department of Education, Andy Tuck as Chair of the State Board
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of Education, and Jacob Oliva as Chancellor of the Division of
Public Schools (collectively, the State) sought to address the
different stakeholder preferences for online and in-person
instruction and the potential funding losses to school districts.
Commissioner Corcoran issued an emergency order that allowed
school districts to continue to provide online instruction and
offered increased funding to avoid the expected budget shortfalls.
But to qualify for increased funding, school districts had to reopen
schools for in-person instruction by the end of August.
The Florida Education Association, six Florida teachers, five
parents of Florida students, the National Association for the
Advancement of Colored People, Inc., and the NAACP Florida
State Conference (collectively, Appellees) disagreed with the
State’s school reopening plan. Appellees thought it too risky to
reopen schools because the possibility of contracting and
transmitting COVID-19 posed too great a threat to students,
teachers, their families, and communities. And by conditioning the
offer of increased funding for online instruction on school districts
committing to reopening schools for in-person instruction,
Appellees claimed that the State “forced” school districts to reopen.
Appellees sued in circuit court seeking a declaration that the State
failed to meet its constitutional obligation to provide for a safe and
secure public school system. They also moved to temporarily enjoin
the emergency order. The trial court granted the injunction and
then substantially revised the emergency order.
The State appeals. We reverse because Appellees did not meet
the requirements for the trial court to issue an injunction. And
even if they had, the trial court exceeded the constitutional limits
of its authority by rewriting the Commissioner’s order.
I. Facts
After Florida’s surgeon general declared a public health
emergency stemming from the COVID-19 pandemic, Governor
DeSantis declared a state of emergency throughout Florida. See
Fla. Exec. Order No. 20-52 (Mar. 9, 2020). That declaration and
later emergency orders granted state agencies authority to waive
regulatory statutes and their own rules when “strict compliance
with the provisions of any such statute, order, or rule would in any
4
way prevent, hinder, or delay necessary action in coping with the
emergency.” Id. at 4. The order defined “necessary action” to
include “any emergency mitigation, response, or recovery action:
(1) prescribed in the State Comprehensive Emergency
Management Plan . . .; or (2) ordered by the State Coordinating
Officer.” Id.
Exercising authority granted under that order, the State
Coordinating Officer directed the Department of Education (DOE)
“to take all appropriate actions coordinated with Florida’s school
districts, state colleges and other educational providers to promote
the health, safety, welfare and education of Florida students under
the circumstances presented by this emergency.” Fla. Div. of
Emerg. Mgmt. Order No. 20-004 at 2 (Mar. 13, 2020).
In response, DOE issued an emergency order closing Florida’s
public schools for in-person instruction until April 15, 2020. See
Fla. Dep’t of Educ. Order No. 2020-EO-01 at 2 (Mar. 23, 2020). The
Commissioner directed public schools to shift to online instruction.
Id. But despite the initial plan to close schools only through April
15, schools did not reopen for the rest of the school year.
In the months that followed, state and local governments
employed strategies to control the spread of the virus, including
placing restrictions on public gatherings, limiting business
operations, and maintaining school closures. Meanwhile, guidance
from public health authorities shifted on how to limit the spread of
COVID-19. At first, authorities recommended non-pharmaceutical
interventions such as social distancing and handwashing. They
later expanded their recommendations to advise individuals to use
face coverings. See Ctrs. for Disease Control & Prevention, How to
Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-
ncov/prevent-getting-sick/prevention.html. Still, by June, the
number of COVID-19 cases continued to climb.
Even so, most Florida counties, except for Miami-Dade,
Broward, and Palm Beach, entered Phase 2 of the Governor’s
three-phase plan to reopen the state. See Fla. Exec. Order No. 20-
139 at 1 (June 3, 2020). School districts began discussing when and
under what conditions to reopen schools if pandemic conditions
persisted. School districts solicited input from students, parents,
5
and teachers and looked for ways to accommodate their
preferences for online or in-person instruction.
But offering both instructional models presented several
challenges. The Florida Education Finance Program, which
supplies the formulae for state funding to school districts, ties
funding to enrollment numbers drawn from periodic surveys. See
§ 1011.62(1)(a), (s), Fla. Stat. (2019); Fla. Admin. Code R. 6A-
1.0451(4). Because the costs of online instruction are lower than
the costs of in-person instruction, per student funding for online
instruction is about twenty-five percent less than funding for in-
person classes. See §§ 1011.62(1)(s), (11), Fla. Stat. (2019). So the
greater the number of students enrolling in online classes, the
greater the loss in funding to school districts.
School districts faced another hurdle. Increased online
enrollment would delay payments of state funds until the end of
the semester because school districts receive payments for online
classes only when students successfully complete the classes. See
§ 1002.37(3), Fla. Stat. (2019).
Finally, school districts needed authority to continue to offer
online classes outside the Florida Virtual School program. If the
State did not grant that authority, school districts expected to lose
funding due to decreased student enrollment. School districts
expected families to withdraw from public schools and seek
alternatives, including homeschooling, private schools, and
Florida Virtual School, if they did not offer students the choice of
online instruction.
School districts did not face potential funding losses in the
spring when they shifted to online instruction. Then, DOE granted
school districts the authority to offer online classes outside the
Florida Virtual School program. See Fla. Dep’t of Educ. Order No.
2020-EO-01 at 2. State funding at that point hinged on the student
count drawn from the February 2020 enrollment survey. See Fla.
Admin. Code R. 6A-1.0452(2). And so, school district budgets did
not suffer from the effects of increased online enrollment and
students withdrawing from public schools. But with the October
enrollment survey approaching and with almost half of Florida’s
6
students expected to enroll in online classes, school districts
anticipated significant funding shortfalls.
The expected shortfalls prompted the Florida School Finance
Officers Association, Inc., an association that includes finance
officers from all school districts, to write to the Commissioner and
urge him to consider waiving certain statutes and rules. FSFOA
proposed that DOE count online students for funding purposes as
if they were attending classes in person.
Soon after, the Commissioner issued Emergency Order 2020-
EO-06 (Emergency Order). The order addressed the school
districts’ expected funding shortfalls by waiving strict compliance
with certain statutes and rules. See Fla. Dep’t of Educ. Order No.
2020-EO-6 at 6–7 (July 6, 2020). The waivers allowed school
districts to report a student for funding purposes as a brick-and-
mortar student, even if the student enrolled in online classes. Id.
But to obtain the waivers, school districts needed to submit a
reopening plan to DOE for approval. Id. And for DOE to approve
the plans, school districts had to offer students the choice of in-
person instruction or online instruction with classes beginning in
August. Id. The Commissioner’s primary objectives were to provide
financial stability for school districts, to encourage school districts
to reopen schools for in-person instruction with precautions for
safety, and to give school districts flexibility to offer online
instruction. Id.
Even so, the Commissioner emphasized that school districts
did not have to submit a reopening plan but could “open in
traditional compliance with statutory requirements for
instructional days and hours.” Id. at 6. Thus, school districts that
chose not to submit a reopening plan would receive funding
according to the statutory formulae authorized by the Legislature
and the administrative rules adopted by DOE.
All but one of Florida’s sixty-seven school districts submitted
a reopening plan. Three school districts—Miami-Dade, Broward,
and Palm Beach—received approval for plans that did not provide
for reopening schools for in-person instruction until after the first
semester. Those three counties remained in Phase 1 of the
Governor’s Recovery Plan, and local conditions supported a delay
7
in reopening for in-person instruction. The remaining sixty-three
districts committed to reopening schools for in-person instruction
in August, while also offering online instruction to students who
preferred not to return to the classroom. DOE’s approval of these
plans allowed school districts to keep offering online instruction
without suffering a loss in state funding.
II. Procedural History
Still, Appellees questioned the wisdom of the Commissioner’s
Emergency Order. They sued in circuit court, seeking a declaration
under chapter 86, Florida Statutes (2019) that the State failed to
meet its obligation under article IX, section 1(a) of the Florida
Constitution to provide for a “safe, secure, and high quality” public
school system. Appellees alleged that the Emergency Order
“forced” school districts to reopen schools for in-person instruction
by threatening school districts with a loss of funding. They argued
that the order required students and teachers to return to the
classroom when it was unsafe to do so. Appellees sought to enjoin
the Emergency Order and moved for a temporary injunction.
After an evidentiary hearing—and seven days before schools
needed to reopen under the Emergency Order—the trial court
entered an order temporarily enjoining the Emergency Order. It
purported to “sever” from the Emergency Order provisions that it
found unconstitutional, and then revised the order as follows:
8
The State appealed. The temporary injunction order was
automatically stayed under Florida Rule of Appellate Procedure
9.310(b)(2). But then the trial court granted Appellees’ request to
vacate the stay. In a previous order, we reinstated the stay in
response to the State’s motion. We now address the merits of the
State’s appeal.
III. Standard of Review
We review an order granting a temporary injunction under a
hybrid standard of review. See Sch. Bd. of Hernando Cnty. v. Rhea,
213 So. 3d 1032, 1037 (Fla. 1st DCA 2017). We review the trial
9
court’s factual findings for an abuse of discretion. Id. And we
review its legal conclusions de novo. Id.
IV. Temporary Injunction
The purpose of a temporary injunction is to maintain the
status quo. See State, Dep’t of Health v. Bayfront HMA Med. Ctr.,
LLC, 236 So. 3d 466, 472 (Fla. 1st DCA 2018). But an injunction is
an extraordinary remedy, and a trial court should grant such relief
sparingly. Id. To obtain an injunction, the moving party must show
“(1) a substantial likelihood of success on the merits, (2) the
likelihood of irreparable harm absent the entry of an injunction,
(3) a lack of an adequate remedy at law, and (4) that injunctive
relief will serve the public interest.” Id. The trial court must make
specific factual findings to support each element, and those
findings must be supported by competent, substantial evidence. Id.
If any one of the elements is not established, the trial court may
not grant the injunction. Id. As explained below, Appellees
established none of the elements required to obtain an injunction.
A. Substantial Likelihood of Success on the Merits
A plaintiff can show a substantial likelihood of success “if good
reasons for anticipating that result are demonstrated. It is not
enough that a merely colorable claim is advanced.” City of
Jacksonville v. Naegele Outdoor Advert. Co., 634 So. 2d 750, 753
(Fla. 1st DCA 1994). Appellees are not likely to succeed on the
merits of their claims because (1) they lack standing; (2) their
claims present nonjusticiable political questions; (3) the relief they
request would require the trial court to violate the separation of
powers; and (4) they failed to show that the State acted in an
arbitrary and capricious manner.
1. Standing
Appellees argue that the State failed to meet its constitutional
obligation to provide for a safe and secure public school system.
They claim that the Emergency Order requires school districts to
reopen schools and forces teachers and students to return to the
classroom when it is unsafe to do so. Appellees are unlikely to
succeed because they lack standing to bring these claims.
10
Standing is a question of law, which an appellate court
reviews de novo. See McCall v. Scott, 199 So. 3d 359, 364 (Fla. 1st
DCA 2016). To establish standing to sue, a plaintiff must have a
“legitimate or sufficient interest at stake in the controversy that
will be affected by the outcome of the litigation.” Equity Res., Inc.
v. County of Leon, 643 So. 2d 1112, 1117 (Fla. 1st DCA 1994). When
determining whether a plaintiff has standing, courts consider
these three elements:
First, a plaintiff must demonstrate an “injury in fact,”
which is “concrete,” “distinct and palpable,” and “actual
or imminent.” Whitmore v. Arkansas, 495 U.S. 149, 155,
110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990). Second, a
plaintiff must establish “a causal connection between the
injury and the conduct complained of.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed.
2d 351 (1992). Third, a plaintiff must show “a ‘substantial
likelihood’ that the requested relief will remedy the
alleged injury in fact.” [Vermont Agency of Natural Res.
v. Stevens, [529 U.S. 765, 771], 120 S. Ct. 1858 [(2000)].
State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004). Appellees
established none of those elements.
First, Appellees failed to show how the relief they request
would redress their alleged injury—being forced to return to the
classroom during the pandemic. The Emergency Order does not
require any teacher, staff member, or student to return to the
classroom. Nor would an order declaring the Emergency Order
unconstitutional and enjoining its enforcement force any school
district to close schools. Nor would it prevent school districts from
requiring teachers and staff to return to the classroom.
Instead, whatever the outcome of Appellees’ lawsuit, the
choice of how to deliver education to students remains with
Florida’s school boards. See Art. IX, § 4 (b), Fla. Const. (“The school
board shall operate, control and supervise all free public schools
within the school district . . . .”). For these reasons, Appellees failed
to establish the redressability requirement for standing. See Sun
State Utils., Inc. v. Destin Water Users, Inc., 696 So. 2d 944, 945
11
n.1 (Fla. 1st DCA 1997) (holding that to have standing, a plaintiff
must have “a personal stake in the outcome of the proceeding, such
as an injury that may be redressed by the suit”).
Appellees also have not shown a causal connection between
their alleged injury and implementation of the Emergency Order.
Appellees had the burden to establish an “injury resulting from the
[State’s] conduct.” Lujan, 504 U.S. at 561. That injury had to be
“distinct and palpable, not abstract or hypothetical.” Sosa v.
Safeway Premium Fin. Co., 73 So. 3d 91, 117 (Fla. 2011).
Appellees cannot meet their burden because the State’s
conduct caused them no injury. Their alleged injury—being forced
to return to the classroom—stems from decisions made by school
districts. School districts decide whether to reopen schools for in-
person instruction. School districts assign teachers to classrooms
and approve or deny their requested accommodations. And school
districts decide whether to offer students the choice of online
instruction. Because there is no causal link between the State’s
conduct in issuing the Emergency Order and Appellees’ alleged
injuries, Appellees failed to establish the causation element
required to support standing.
Finally, any injury to a student or teacher from being forced
to return to the classroom is purely hypothetical. See McCall, 199
So. 3d at 366 (explaining that speculative and conclusory
allegations of harm cannot confer standing). Appellees have not
alleged that any student has been denied the option to take classes
online. Nor have they alleged that any teacher was forced to return
to the classroom, denied a requested accommodation from their
employing school district, and then suffered harm. Appellees have
simply not demonstrated any concrete, palpable injury sufficient
to confer standing. See Sosa, 73 So. 3d at 117. And so, they are
unlikely to succeed on the merits of their claims.
2. Political Question
Appellees are also unlikely to succeed because their complaint
presents a non-justiciable political question—whether the State
violated its constitutional obligation to “make adequate provision”
12
for a “safe, secure, and high quality” public school system. Art. IX,
§ 1(a), Fla. Const.
“The nonjusticiability of a political question is primarily a
function of the separation of powers.” Baker v. Carr, 369 U.S. 186,
210 (1962). Unlike legal questions, political questions “fall within
the exclusive domain of the legislative and executive branches
under the guidelines established by the Florida Constitution.”
Johnson v. State, 660 So. 2d 637, 646 (Fla. 1995). And so, courts
must refrain from answering political questions because it is not
the judiciary’s role to decide questions that “revolve around policy
choices and value determinations constitutionally committed for
resolution to the halls of [the legislature] or the confines of the
Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221, 230 (1986).
To determine whether a case presents a political question,
courts consider several factors: (1) the issue raised has been
demonstrably and textually committed to a coordinate political
department; (2) judicially discoverable and manageable standards
for resolving the question are lacking; (3) the court cannot decide
the question “without an initial policy determination of a kind
clearly for nonjudicial discretion”; (4) the trial court cannot
undertake independent resolution of the issue “without expressing
lack of respect due coordinate branches of government”; (5) there
is “an unusual need for unquestioning adherence to a political
decision already made”; and (6) there is a potential of
“embarrassment from multifarious pronouncements by various
departments on one question.” Baker, 369 U.S. at 217. If any of
these circumstances is present, the question is a political one and
not justiciable. Id.
Several of the justiciability considerations identified in Baker
are present here. The court cannot decide whether the State has
met its obligation to provide for safe and secure schools unless it
makes policy determinations reserved for the executive branch and
the non-party school districts. Nor can the court determine
whether the Governor and the Commissioner, through their
delegated emergency authority, met the executive’s statutory
obligation to address the natural emergency presented by the
pandemic. And the court cannot resolve the questions here
13
“without expressing lack of respect due coordinate branches of
government.” Id. Last, no judicially discoverable or manageable
standards exist for the trial court to resolve the questions raised
by Appellees’ constitutional claims.
Appellees’ claims are much like the claims raised in Coalition
of Adequacy and Fairness in School Funding, Inc. v. Chiles, 680
So. 2d 400 (Fla. 1996), and Citizens for Strong Schools, Inc. v. Fla.
State Bd. of Educ., 262 So. 3d 127, 129 (Fla. 2019) (Citizens II),
where the Florida Supreme Court made clear that the judiciary
has no role in determining the adequacy and quality of the public
school system.
In Coalition, the plaintiffs sought a declaration that the State
failed to meet its obligation under article IX, section 1(a) to
“allocate adequate resources for a uniform system of free public
schools.” 680 So. 2d at 402. The trial court dismissed the suit,
concluding that whether the Legislature adequately funded the
school system fell outside the scope of the judiciary’s jurisdiction.
Id. The supreme court agreed with the trial court’s reasoning and
held that “the legislature has been vested with enormous
discretion by the Florida Constitution to determine what provision
to make for an adequate and uniform system of free public
schools.” Id. at 408. In concluding that the case presented a
nonjusticiable political question, the court found two justiciability
considerations identified in Baker were present: First, the
constitution committed the determination of adequacy of funding
to the legislature; and second, there were no judicially discoverable
and manageable standards that could be applied to determine
adequacy. Id. (holding that the use of the phrase “by law” in the
amendment shows that the text of the Florida Constitution
commits education policy to the legislative and executive
branches).
Two years after the Coalition decision, voters approved
changes to article IX, section 1(a) based on a proposal from the
Constitution Revision Commission. See Citizens II, 262 So. 3d at
129. Before the amendment, article IX, section 1 provided that
“[a]dequate provision shall be made by law for a uniform system of
free public schools . . . .” With the 1998 amendment, voters
approved the addition of the terms “fundamental value,”
14
“paramount duty of the state,” and “efficient, safe, secure, and high
quality system of free public schools that allows students to obtain
a high quality education.” Id.
Following the amendment, a new lawsuit challenged whether
the State met its obligation to provide for “a high quality system of
free public schools that allows students to obtain a high quality
education.” Citizens II, 262 So. 3d at 128. But despite the newly
added language requiring “high quality,” the supreme court found
that “like the appellants in Coalition—[the plaintiffs in Citizens]
fail[ed] to present any manageable standard by which to avoid
judicial intrusion into the power of the other branches of
government.” Id. at 129–30.
This case is no different. The terms “safe” and “secure” as used
in article IX, section 1(a), lack judicially discoverable or
manageable standards. This is especially true when, as here, the
State was trying to meet its constitutional obligation to provide for
an adequate public school system while also exercising its
statutory authority to respond to a natural emergency. Any
judicial effort to evaluate the State’s compliance with those
constitutional and statutory requirements would violate Florida’s
strict requirement for the separation of powers.
Even so, the trial court found that the terms “safe” and
“secure” were judicially manageable. The trial court quoted with
approval the lower court finding in Citizens II that “Florida’s trial
courts deal with issues relating to safety and security all day long”
and that “[a]llegations of unsafe or unsecure schools can be
measured differently and more definitively tha[n] can terms like
‘efficient’ and ‘high-quality.’” The trial court then weighed expert
testimony on the COVID-19 pandemic, even while acknowledging
that “[t]he medical literature is clearly still in flux and difficult to
parse.”
The trial court’s analysis reveals the perils of judicial decision-
making in this policy-laden arena. To measure whether the public
school system is “safe” and “secure,” the trial court would need to
identify standards to make that measurement—beginning by
15
evaluating the risks posed by COVID-19. 1 And 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. The court would still
need to consider many other factors to determine whether the
State met its obligation to provide for safe and secure schools. See
Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 232 So. 3d
1163, 1169 (Fla. 1st DCA 2017) (Citizens I) (“[T]he lack of
specificity in an operative legal text lends itself to endless
litigation over the meaning of subjective and undefined phrases
that might function to give guidance to political decision makers
as laudable goals, but cannot guide judges in deciding whether a
state or local government has in fact complied with the text.”).
Indeed, the trial court would have to consider the myriad concerns
the State had to ponder in deciding whether schools should reopen
for in-person instruction—the risks associated with the virus if
schools reopen and the risks associated with not reopening
schools—before deciding which risks were tolerable.
At the hearing on the injunction, the State presented
witnesses who testified on the importance of in-person instruction
1 As the appendices in these cases show, this is no simple task.
Public health authorities disagree on the metrics to be applied and
how to interpret those metrics. For example, the parties’ experts
disagreed on whether positivity rates for COVID-19 reflect
community risk. Appellees’ expert, Dr. Thomas Burke from the
Harvard School of Public Health testified: “we cannot open brick-
and-mortar schools, in person teaching, with . . . a community
positive rate that’s over 5 percent. . . . [b]ecause [of] the risk for
rapid expansion, for rapid surge of disease that will harm the
population. As well as overwhelm the health system, you know,
gets magnified immensely.” On the other hand, the State’s expert,
Dr. Jay Bhattacharya from the Stanford University School of
Medicine, testified: “[P]ercent positivity does not actually reflect
community risk. It’s not a random sample. . . . [U]nder no setting
would I say that this number by itself is definitive in deciding
whether to open or close a school [or] it’s safe to open or close a
school district, as far as disease is concerned.”
16
for Florida’s most vulnerable students: students with disabilities,
students who are homeless, students in foster care, students who
are English language learners, and students who are economically
disadvantaged. The State’s evidence showed that online
instruction disadvantages students who do not learn well in an
online setting and students who lack access to technology and
internet connectivity. The State also offered testimony that school
closures in the spring led to severe learning losses for many
students. And it submitted studies showing that continued school
closures threatened students’ mental health, as well as the
physical welfare of students who face food insecurity or live in
abusive homes. Finally, school closures also caused hardship for
families when parents had to work outside the home but could not
afford to pay someone to supervise their child during online
instruction.
Thus, the State showed that its decision to issue the
Emergency Order and provide a plan to reopen schools required it
to consider education policy, public health policy, economic policy,
and emergency management policy. Such complex decision-
making and policy judgments are far beyond the authority of the
judiciary. See Burnett v. Greene, 122 So. 570, 576 (Fla. 1929)
(observing that the judiciary’s role is to administer justice, “not to
determine the wisdom of a public measure designed to promote the
‘public health, convenience or welfare’”). Courts simply lack the
expertise and authority to weigh and balance the many public
health, social, and economic factors that inform the policy decision
made here: when and how to reopen Florida’s public schools in the
wake of a public health emergency. See Citizens II, 262 So. 3d at
143 (Canady, C.J., concurring) (“There is no reason to believe that
the judiciary is competent to make . . . complex and difficult policy
choices.”).
Instead, decisions on “[t]he safety and the health of the
people” are entrusted to the politically accountable officials of our
state “to guard and protect.” See Jacobson v. Massachusetts, 197
U.S. 11, 38 (1905). Answering such profound questions “must
necessarily be performed exclusively within the political branches,
which by their nature are far more responsive and prompt to
address the needs of parents and students than the courts could
ever be.” Citizens I, 232 So. 3d at 1169. This is particularly true
17
when the political branches “act in areas fraught with medical and
scientific uncertainties”; in those circumstances, their latitude
“must be especially broad.” Marshall v. United States, 414 U.S.
417, 427 (1974). When they do not exceed those broad limits, the
judiciary may not second guess “the policy decisions of the
[political branches], no matter how appealing we may find contrary
rationales.” See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504,
521 (1981).
Appellees 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. The courts must
decline the invitation.
3. Separation of Powers
Appellees are also unlikely to succeed on the merits because
even if their claims were justiciable, the trial court cannot grant
their requested relief without wading into the political thicket of
education policy, emergency management, and public health policy
to determine what is necessary for the State to provide a “safe” and
“secure” public school system. But under Florida’s strict
requirement for the separation of powers, the trial court cannot
intrude on the State’s discretionary decisions in these policy
areas—particularly where the executive exercises its authority to
address a public health emergency.
Article II, section 3 of the Florida Constitution provides that
“[n]o person belonging to one branch shall exercise any powers
appertaining to either of the other branches unless expressly
provided herein.” See also Bush v. Schiavo, 885 So. 2d 321, 329
(Fla. 2004) (describing separation of powers as the “cornerstone” of
American democracy). Appellees ask the trial court to violate that
foundational principle by urging the court to decide policy
decisions committed to the executive branch’s discretion.
Florida’s constitution vests the “supreme executive power” in
the Governor, who must “take care that the laws [are] faithfully
executed.” Art. IV, §1 (a), Fla. Const. The Governor is also
“responsible for meeting the dangers presented to this state and
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its people by emergencies.” § 252.36(1)(a), Fla. Stat. (2019). In
meeting those dangers, the Governor may “issue executive orders,
proclamations, and rules” which “have the force and effect of law.”
§ 252.36(1)(b), Fla. Stat. (2019).
When Governor DeSantis declared a state of emergency to
address the pandemic, he exercised emergency powers granted to
him under section 252.36(1)(b). See Abramson v. DeSantis, No.
SC20-646, 2020 WL 3464376, at *1 (Fla. June 25, 2020) (“[A]
pandemic is a ‘natural emergency’ within the meaning of section
252.34(8). Accordingly, we further conclude that, under section
252.36(1)(b), the Governor has the authority to issue executive
orders to address a pandemic in accordance with the Act.”). The
Governor exercised his discretion to use those same emergency
powers to delegate to Commissioner Corcoran the authority to
develop a plan to safely reopen public schools.
The Commissioner could have chosen to do nothing and
declined to exercise the discretionary authority the Governor
delegated to him. Instead, he used that authority to develop a plan
that balanced the need to “ensure the quality and continuity of the
educational process” and “the comprehensive well-being of
students and families” with the need to comply with “safety
precautions as defined by the Florida Department of Health [and]
local health officials.” Fla. Dep’t of Educ. Order No. 2020-EO-6 at
1. The Emergency Order reflects the Commissioner’s stated intent
to offer a means for school districts to obtain increased funding for
students who choose online instruction, while also giving students
the choice to return to the classroom.
Even so, Appellees quarrel with the Commissioner’s exercise
of his discretion. They prefer a plan that offers school districts the
funding benefits of the Commissioner’s plan without the
bargained-for consideration of school reopening. That is, Appellees
prefer that school districts receive the benefit of the funding
waivers—whether schools reopen and whether school districts
offer students the choice of in-person instruction. So Appellees
asked the court to waive duly enacted statutes and regulations
providing for school funding. They also asked the court to compel
the State to allocate funds for personal protective equipment and
other supplies, to reduce class sizes, to install hand-sanitizing
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stations, to add plexiglass shields, to increase staffing, and to
increase school clinic capabilities.
When it issued the temporary injunction, the trial court
granted much of the relief Appellees requested. The court excised
from the Commissioner’s order the requirement that school
districts submit plans to reopen schools for in-person instruction.
And the court waived the statutory and regulatory funding
requirements for school districts far beyond what the
Commissioner authorized. But in revising the Emergency Order,
the trial court improperly exercised powers reserved to the
executive branch, and substituted its judgment for the
Commissioner’s. See Citizens I, 232 So. 3d at 1171 (“Absent explicit
constitutional authority to the contrary, the legislative and
executive branches possess exclusive jurisdiction in [educational
policy choices and their implementation].”).
And by rewriting the Emergency Order, the trial court
directed how DOE and the Commission