Palm Beach County Schools chief says district didn't violate DeSantis' mask order

Days after the state's top education official warned Palm Beach County public school leaders that their student mask mandate violated a governor's order as well as various state laws and administrative rules, Superintendent Mike Burke has issued a two-page reply  that boils down to, "No, it does not."

The letter was among the latest shots fired in a legal to-and-fro that now involves at least a dozen of Florida's 67 districts that have imposed mask mandates despite orders not to. 

Florida Attorney General Ashley Moody also entered the fray Wednesday, issuing an advisory opinion to Suwannee County School District that districts must comply with Department of Health COVID protocol rules, including a requirement that parents be able to opt out of wearing a face mask until a court declares the rules are invalid.

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The opinion was disseminated by the Florida Department of Education and comes days after Circuit Court Judge John Cooper in Leon County ruled against Gov. Ron DeSantis and his administration, saying they acted "without legal authority" when prohibiting mask mandates in schools.  

DeSantis promised to appeal that ruling and does not appear to be slowing his plans to impose financial sanctions against districts that fail to allow parents the final decision in whether to mask their children. 

The FDOE said it intends to withhold from each district the equivalent of a school board member's monthly salary for every board member in that county who voted to impose a mandate. Board members earn about $3,897 a month in this county.

Burke argues that the mask mandate imposed on Aug. 18 in a 6-1 vote is not inconsistent with the Department of Health emergency rules. The DOH directed boards  to "ensure safety protocols for controlling the spread of COVID-19"  that do not violate residents' constitutional freedoms or parental rights under state law, and that promise to protect students with disabilities or health conditions who would be harmed by protocols such as a mask requirement. 

"There has been no determination that has concluded a face-covering requirement for students is unconstitutional. Nothing in the Parents' Bill of Rights prohibits a face-covering requirement," Burke wrote. "The Parents' Bill of Rights also preserves the School Board's power to take action where it is 'reasonable and necessary to achieve a compelling state interest.' ... The Board's face-covering requirement satisfies these requirements."

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He goes on to say that the district has had 3,470 cases of COVID-19 among staff and students on campus in the first three weeks of this school year, a pace of infection that will no doubt swiftly eclipse the nearly 3,900 reported cases in all of last year. 

Without the ability for most school-age children to be vaccinated and with the demand that students be taught in-person, Burke writes that the policy is "reasonable."

Dozens of local pediatricians backed Burke on this, writing in a letter to board members Wednesday that said in part: "Universal masking and vaccines for all students over age 12 and teachers/staff are what will help us win this battle and save our children, their parents and our teachers. This is a public health crisis, a pandemic, which should not take into account just the individual, but the health, safety and wellness of the whole."

Burke also argued that the mask requirement is a measured response.

"The Policy is also narrowing tailored, as it is only in effect for 90 days and can be suspended or revoked sooner where available information supports doing so," the letter says.   

At a workshop Wednesday afternoon, board member Erica Whitfield asked Dr. Alina Alonso, director of the county office of the state Health Department, what such a threshold would look like. "When can masks be optional?" 

Alonso didn't have a direct answer. 

"The decisions you are making here are way above data," Alonso said. The board must consider its ability to maintain staffing in classrooms and behind the wheels of buses. "I can't make those decisions for you."

She said the district should be looking at daily positivity rates, number of cases and whether they're trending up or down, and what the situation looks like in local hospitals. 

By the U.S. Centers for Disease Control and Prevention's estimate, all but one state in the country, Vermont, is experiencing the highest levels of contagion. 

The district is preparing to make vaccines more accessible to students and employees by bringing the county Health Care District's mobile clinics to high school parking lots. Alonso said she is heartened by the rise in vaccinations being led by the 12- to 19-year-olds. 

Meanwhile, the number of districts seeking mandates has grown from two to more than a dozen in the span of a week. Among those squaring off with the governor: Alachua, Broward, Duval, Hillsborough, Indian River, Leon, Miami-Dade, Orange and Sarasota counties. 

sisger@pbpost.com

@sonjaisger