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Sides hope for quick decision in Florida school reopening lawsuit

An appeal to the state Supreme Court is expected regardless of the outcome.

Like it or not, schools across Florida have opened their classrooms for the new academic year, despite the objections of some who would have preferred an online-only debut.

Even so, the Florida Education Association’s lawsuit challenging the state government’s authority to require face-to-face instruction begin by Aug. 31 continues. It’s not a moot point, both sides contend, because the final word from the courts could have lasting implications on school operations well into the future.

Jeb Bush’s Foundation for Excellence in Education aimed to hammer home that point as it joined the lawsuit with its friend of the court brief on behalf of the state, which has contended that decisions about school reopening during the coronavirus pandemic are a policy matter.

“The Emergency Order was an executive level planning and operational decision regarding policy judgments, beyond the power of the courts to second-guess,” lawyers for the foundation wrote to the 1st District Court of Appeal, which set Sept. 9 as its deadline to receive all pleadings before it will consider the merits of the state’s appeal.

The state is seeking to overturn a Leon County Circuit judge’s ruling that the governor and Department of Education overstepped their authority.

Related: School reopening lawsuit: Judge rules in favor of Florida teachers

Bush’s organization took the added step of launching an online petition and social media campaign against the Florida Education Association’s effort.

“The teachers union lawsuit hurts students who need in person instruction – whether they are very young children, students with special needs or those whose parents must work outside the home,” foundation executive director Patricia Levesque said via email. “I believe parents know what environment would work best for their child and they deserve access to all options.”

Lawyers for the union stressed in their briefing to the court that they were not attempting to shutter schools or take away choices. Rather, they stated, the goal was to ensure local school districts make their own determinations, as provided in the state constitution.

“The way the State implemented the Emergency Order’s directives presented local school districts with a ‘Hobson’s Choice’ to essentially ‘take it or leave it,’” the lawyers wrote. “They had to reopen for in-person learning or they would not receive any funding for the vast number of students who opted for On-Line Learning — even if non-DOH health experts said it was unsafe to physically reopen some schools.”

Joining that side was the Florida Alliance of Retired Americans, a Palm Beach County-based organization that counts several union chapters among its affiliates.

In their friend of the court briefing, lawyers for the alliance argued that the final decision in this case will have critical effects on Florida senior citizens.

“Appellants' implementation of the order, including divesting local school boards of the authority to reopen brick and mortar schools based on reasoned input from local health departments, will have an impact on community spread of the virus,” they wrote. “Older Floridians are the most vulnerable group of citizens during the COVID-19 pandemic, and remain at risk to this deadly virus.”

The appellate court has not asked for oral arguments in this case. It could quickly review the matter and issue an opinion, which some observers anticipated because it set a relatively expedited time line for receiving briefs. Or it could take its time.

Either way, the side that loses is expected to appeal to the Florida Supreme Court. Lawyers for both had asked for the case to go directly to the higher court, but the appellate judges did not send it along as requested.

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