Immunity comes in many flavors.  Immunity from liability or suit is one kind, immunity from viral infections an altogether different variety.  The resumption of in-person classes for K-12 school children without an effective and widely distributed vaccine and without widespread community immunity to the virus has stoked concerns among parents, children, and educators alike.  In Florida, the teachers have taken to court to prevent a state-wide order from taking effect that would require resumption of in-person instruction.

In July 2020, Florida Governor Ron DeSantis and his administration ordered schools across the state to reopen in August. Two weeks later, the Florida Teachers’ Union sued Governor DeSantis accusing he and his administration of violating Florida law and asking a state court to block the order and allow local school superintendents and health departments to have full control over reopening decisions. This lawsuit appears to be the first of its kind and may portend a similar showdown in other states, including Texas, as states wrestle with reopening school amidst rising COVID-19 cases.

1.    The Order

On July 6, 2020, Governor DeSantis (“DeSantis”) and his administration issued Department of Education Order No. 2020-EO-06 (the “Order”). The Order was issued with the specific goals of:

1.    Reopening brick and mortar schools with the full panoply of services for the benefit of Florida students and families;
2.    Suspending and adjusting as necessary reporting requirements to ensure appropriate monitoring and financial continuity of the educational process;
3.    Retaining school choices for Florida students and families with a focus on eliminating achievement gaps, which may have been exacerbated by the crisis; and
4.    Maintaining services that are legally required for all students, such as low-income, English language learning, and students with disabilities.

The Order requires that all “brick and mortar schools” must be opened at least five days per week for all students upon reopening in August subject to advice and orders from other governing authorities. The Order also requires all school districts to submit a reopening plan that satisfies specific requirements set forth in the Order.

2.   The Lawsuit

On July 20, 2020, the Florida Teachers’ Union (the “Union”) filed suit against DeSantis and his administration in Circuit Court of the Eleventh Judicial Circuit in and for Miami Dade County, Florida in a case styled Florida Education Association, et al. v. Ron DeSantis, et al.

The Union alleges that the Order requiring resumption of in-person classes violates Florida’s constitution’s mandate on a “. . . safe, secure, and high quality system of free public schools” by arguing that DeSantis’ and his administration’s “unconstitutional handling of their duties” by opening schools amidst a surge and continued rise of COVID-19 cases infringes upon the Florida Constitution mandate and requires court intervention to afford appropriate relief. The Union is asking a Miami judge (where the case was filed) to declare the Order as in violation of the Florida Constitution and issue an injunction essentially blocking the Order.

3.   Texas

What does this mean for Texas? On July 28, 2020, Texas Attorney General Ken Paxton issued a guidance letter to the City of Stephenville setting up a variant of the showdown already playing out in Florida.

In several harder-hit counties, including almost every major metropolitan area in Texas, local orders have delayed in-person learning for the first two to 3 weeks of the 2020-2021 academic year.  Paxton took direct aim at those orders in his July 28^th guidance letter, stating that any local orders that “restrict permitted school operations” are superseded by Governor Abbott’s Executive Order GA-28.

Paxton’s opinion is premised on his interpretation that Texas law allows quarantining of infected property only after it becomes infected or is reasonably believed to be infected.  Accordingly, “local authorities may not issue blanket orders closing all schools in their jurisdiction on a purely prophylactic [or preventative] basis”

In lockstep with Paxton’s guidance, the Texas Education Agency (“TEA”) issued revised guidelines on July 28^th denying state funding for remote instruction when in-person instruction is delayed due to a “blanket closure letter” issued by a local heath authority.  As the TEA has interpreted Paxton’s guidance letter, “a blanket order closing schools does not constitute a legally issued closure order for purposes of funding solely remote instruction”.

Paxton’s guidance letter and the TEA’s guidelines create conditions similar to those that precipitated the teachers filing suit in Florida.  Paxton has denied local authorities the right to delay in-person schooling. The TEA has stated it will cut-off funding for remote learning for localities that defy Paxton’s guidance. All the while many of those same localities are experiencing record numbers of coronavirus infections and deaths, creating a Hobbesian choice for localities: Whether to safeguard children and teachers from the coronavirus by delaying in-person instruction or whether to forego needed funding by allowing in-person instruction to proceed.

Rather than the teachers filing suit in Texas, however, it may be the counties and localities that seek to stay Paxton’s and the TEA’s interpretations from taking effect.  Since the Texas Legislature does not reconvene until January 2021, the courts may be the only venue in which these matters can be decided in time for the commencement of the fall semester.

We are here to help you

Our attorneys in Dallas and Austin, working remotely during the pandemic, are available to answer any questions you may have about your contractual or legal rights and to help you navigate these uncharted waters.  Contact us at info@gstexlaw.com if you have any questions.

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