As a growing number of school districts defy a state order against mask mandates, Florida’s public universities are showing no desire to mount their own rebellion.
Repeatedly in recent days, university leaders have pushed aside calls for safety measures like mask mandates, stronger action to encourage vaccinations, or the ability to temporarily teach online. Faculty groups, meanwhile, have been voicing fears about multiplying coronavirus cases with a deepening sense of outrage.
University officials say the state has legally tied their hands from taking stronger action. But they have declined to explain exactly what rules or laws prevent them from challenging the state like many school districts have.
So far, according to faculty leaders, the strategy has given state officials legal cover, keeping opponents from knowing the grounds for taking them to court.
“We have asked over and over again, ‘What’s the source of these (rules)? What is it that we would sue? A person? An agency?’” said Paul Ortiz, president of the University of Florida faculty union and director of the school’s Samuel Proctor Oral History Program.
“We’re not even being told who’s making these rules.”
The issue surfaced Aug. 24 at the University of South Florida during a tense exchange between two members of the board of trustees.
Trustee Tim Boaz, who heads the Faculty Senate, lamented in a meeting that USF hadn’t taken stronger steps against the virus.
The university’s COVID-19 protocols include free vaccinations, free testing and the strong expectation — but not a requirement — that people wear masks indoors. Faculty members have been told they cannot force students to wear a mask or ask for evidence of vaccination. And they are barred from holding classes online as a mitigation measure.
In the first three weeks since students moved to campus, USF reported 263 COVID-19 cases among students and staff — about 2½ times the number during a similar three-week period last year when the university started reporting via an online dashboard.
Citing the new rules, Boaz told his fellow trustees they were no longer following data and science. He said he and other faculty were “extremely disappointed,” charging that the university’s approach did not prioritize the health of its students and staff. He understood that the state was driving USF’s decisions, he said, but argued it was important to speak out.
Will Weatherford, the board’s chairperson, thanked Boaz for his comments and said he appreciated the “voice” of faculty, but disagreed. The board, he argued, takes the health of students and staff seriously.
“We have the opportunity to lead by example,” Weatherford said. “This is a time we all need to show a little grace to each other. People have different opinions with regard to how we should be combating this.”
Weatherford said the board was working under “legal constraints” that prevented them from doing more.
When asked on multiple occasions to detail those constraints, USF repeatedly referred the Tampa Bay Times to guidance from the state Board of Governors, which oversees the State University System. The university also denied requests to interview Provost Ralph Wilcox or the USF Office of Legal Counsel, saying there was nothing they could add on the issue.
The Board of Governors’ guidance strongly recommends that students and staff get vaccinated, that they wear masks indoors and that they consider wearing masks in crowded outdoor settings.
The guidance makes no statement about universities facing consequences from the state if they go beyond those recommendations.
‘We do not have the authority’
On Aug. 27 at Florida State University, the board of trustees heard from eight faculty members and graduate assistants who urged the school to consider mask and vaccine mandates.
“I’m passionate about teaching and believe that being in-person is the best way to learn,” said Susan Rogowski, a doctoral student and math instructor. “However, I currently do not feel safe in my own classroom.”
Richard McCullough, FSU’s new president, thanked those who spoke but said he had no authority to mandate masks or vaccinations.
“We are not in the same position as some of the school boards,” he said. “Essentially our hands are tied in some ways. ... We will fight for you, I promise. But we don’t have the full authority to take some of these things on.”
McCullough pointed to University of Florida president Kent Fuchs, who has been criticized for not taking a stronger stance on COVID-19 restrictions. At the same time, the school district in UF’s home county of Alachua was among the earliest to challenge Gov. Ron DeSantis’ order banning strict mask mandates.
The week before the semester started, UF students received a 5 p.m. email stating classes may be online for the first three weeks. It cited advice from epidemiologists concerned about the COVID-19 delta variant. Five hours later, Fuchs sent a second email saying there would be no switch to online sessions. Classes intended to be in-person would stay that way.
The dueling directives stoked suspicion that higher authorities had intervened at UF.
In his state of the university address, Fuchs hit the same notes as McCullough.
“We do not have the authority to mandate the vaccine for our students and employees, we do not have the authority to require everyone to wear a mask indoors and we no longer have the authority to move our classes online,” Fuchs said.
The UF Faculty Senate introduced a resolution to take a vote of no-confidence regarding the university’s mitigation plans.
During the first three weeks of students returning to campus, UF saw 621 COVID-19 cases, including at its affiliate sites. That’s lower than the 1,320 cases reported during the same three-week period last year, but the university did random testing then, a practice that identifies more infections.
Much like USF, a UF spokesperson referred further questions about the university’s reopening policies to the Board of Governors.
Challenging the state
Although universities aren’t being specific about the legal barriers that limit their options in tackling the virus, faculty leaders have an idea. They’ve pinpointed two factors that are likely at play — a new state law and a recent executive order.
The law, known as Senate Bill 2006, bans vaccine passports. And it highlights “educational institutions,” saying they are prohibited from requiring proof of vaccination before letting students enroll or access a campus.
The executive order, signed by DeSantis on May 3, addressed a different issue. It formally suspended “all local COVID-19 restrictions and mandates.”
Both the order and the bill are being challenged by an advisory council to the Board of Governors made up of faculty senates at all 12 state universities. The council recently passed a resolution urging DeSantis to allow universities to set their own COVID-19 policies.
It was presented at the Sept. 1 Board of Governor’s meeting, but no action was taken.
At the K-12 level, in contrast, 13 Florida school districts have defied DeSantis’ order banning strict mask mandates. Parents have separately challenged the governor in at least two lawsuits.
In one, a Leon County circuit judge ruled Aug. 27 that DeSantis overreached. He said school districts were allowed to set their own rules for handling the virus, as long as they are reasonable, narrowly tailored and achieve “a compelling state interest.” The state has appealed.
The ruling “has no impact on university policies,” said Board of Governors spokesperson Renee Fargason.
The governor’s power
Christina Pushaw, a spokesperson for DeSantis, said in an email that mask mandates are not allowed under state law.
She asserted that forced masking policies could lead people to think that masking is more effective than vaccines. And she argued that masks can cause problems for some students, including those with autism, speech impediments or skin conditions.
“That’s why it is important to preserve every individual’s right to choose whether or not they wear a mask all day,” Pushaw said.
And while vaccine passports are banned, Florida universities have the option under the law to require a negative COVID-19 test to attend classes or events, she said. So far, however, schools have not used that option.
Pushaw did not respond to follow-up requests for information on what law or executive order prohibits mask mandates at Florida universities.
Along with state bans, another factor stands in the way of Florida universities making their own choices on COVID-19.
Florida’s system gives the governor significant power over universities, noted Ortiz, the UF faculty union leader. And the current governor is pushing hard at every turn for less restrictive measures against COVID-19, saying he doesn’t want to abridge freedoms.
At each of the 12 state universities, the governor and Board of Governors appoint all but two of the trustees, a total of 11. The governor also appoints 14 of the 17 seats on the Board of Governors.
“What good is the (university) administration to us if they can’t advocate for our health and well being?” Ortiz asked. “If you have an administration that essentially tells you they have no free will, then why have an administration? Why can’t we just be led by Gov. Ron DeSantis?”
Boaz, the USF faculty leader, said while he hopes the surge of cases slows, this year’s approach by the state’s universities may have a lasting impact.
“It seems just not right we’re not allowed to take extra precautions during this brief period,” he said. “It sends a clear message about how we’re valued. I think there will be resentment over this.”