Legal wrangling over an emergency order mandating that schools reopen this month has shifted to Tallahassee, after a Miami-Dade County circuit judge on Thursday sided with a demand by Gov. Ron DeSantis and state education officials and transferred the case to Leon County.
The ruling by Judge Spencer Eig was a setback for the Florida Education Association, which filed the lawsuit challenging Education Commissioner Richard Corcoran’s order, and comes as teachers, students and other school workers are slated to return to classrooms in a dozen counties next week amid the COVID-19 pandemic.
“The world will be watching us,” FEA President Fedrick Ingram told reporters Thursday afternoon. “You can be reckless with bars. You can be reckless with beaches. You can be reckless with restaurants. But you can’t be reckless with our public schools.”
The FEA, the state’s largest teachers union, alleges that Corcoran’s July 6 order — which requires school districts to reopen classrooms five days a week unless state and local health officials say otherwise — violates the state Constitution, which guarantees Floridians the right to “safe” and “secure” public education.
DeSantis, Corcoran and other state education officials, who are defendants in the case, are asking the court to dismiss the lawsuit, arguing that the emergency order “does not mandate that all students and teachers return to school in person in August.”
During a Thursday morning hearing, the state’s lawyers requested that Eig transfer the case to Leon County circuit court, where most state government-related lawsuits are considered.
Before the issue was discussed, one of the union’s lawyers tried to persuade the judge to order expedited mediation in the case, as schools prepare to reopen.
“If there was ever a case where the parties should be continuing to talk to each other, it’s this one. We have no idea why the governor won’t sit down and meet up, or the commissioner,” attorney Mark Richard said.
But Angel Cortiñas, an attorney with the Gunster law firm who represents the state, told Eig the union’s lawyers should have filed the lawsuit in Tallahassee if they wanted to speed it up.
“If they’re in such a hurry to get this case heard, file it in Leon County,” Cortiñas said.
Attorney Kendall Coffey, who represents the FEA, told the judge that mediation “is the only way to get this properly resolved with the urgency it deserves and with human lives literally at risk.”
Eig noted that, during a hearing Wednesday, Richard said teachers and other school staff are deciding to retire early and give up additional benefits because they are afraid of contracting COVID-19.
“If you had agreed to transfer the case to the Second Circuit (Leon County), then today you all would be talking about public health and education, rather than about civil procedure,” the judge told the union’s lawyers.
Coffey said the union filed the lawsuit in Miami because Miami-Dade County is the focal point of the pandemic in Florida. With about 128,000 reported COVID-19 cases as of Thursday, Miami-Dade has a quarter of the total number of positive test results statewide.
Since the legal challenge was filed, Miami-Dade County Superintendent of Schools Alberto Carvalho announced that distance learning in the county would begin on Aug. 31. Face-to-face instruction will not start until Oct. 5 at the earliest.
As he requested the judge transfer the case to Leon County, Cortiñas pointed out that the union “does not represent any of Florida’s 67 school districts.”
Eig agreed to the transfer, saying Thursday that the “law of home-venue privilege” applies in the case, which he said “is a crucial issue of statewide importance.”
Eig said he hoped a Leon County judge would be assigned to the case by the end of the day so that the lawsuit “can move forward quickly on the merits, rather than being bogged down longer than this in procedural litigation.”
In a Zoom conference with reporters Thursday afternoon, union officials and their lawyers accused DeSantis and Corcoran — who had threatened to appeal, if Eig didn’t agree to transfer the case — of using “a huge delay tactic” by moving the case to Tallahassee.
“We simply want to teach. We simply want to do the jobs that we have been doing for our students,” Ingram, a high-school band director, said. “But this is not business as usual. This is not normal times. This is a pandemic. And in Florida, we are the epicenter, we’re in the vortex of this pandemic.”
Eig did not rule on a state motion to dismiss the lawsuit. In that motion, filed Monday, the state’s lawyers argued that Corcoran’s directive “contains no absolute, state-wide mandate requiring in-person classes without regard to health or safety.”
But union officials maintain that, under the education commissioner’s order, schools must open brick-and-mortar campuses in August or risk losing funding.
Because enrollment numbers could impact per-student funding for public schools, Corcoran’s order said school districts and charter-school governing boards with approved reopening plans will be offered “reporting flexibility” to ensure funds are not interrupted during the 2020 fall semester.
For districts that opt to begin the school year with remote learning instead of face-to-face instruction, “in theory they would not get the funding for those students if they did not show up (in person),” Andrew Spar, FEA vice president, said Thursday.
Corcoran’s emergency order “has had the effect of … financially and otherwise intimidating school boards,” Coffey told reporters.
The governor has steadfastly maintained that families need to have the option to send children back to school in person or to have them take classes online, after the pandemic forced schools to shutter statewide in March.
According to the Florida Department of Education, a dozen school districts are scheduled to begin in-person instruction next week. Six counties are set to start on Monday.
Federal health officials have recommended that 14-day positivity case rates should be 5 percent or less for schools to reopen safely, Ingram pointed out. But positivity rates among children under age 18 in several counties set to open next week are in the double digits, he said.