Orange County Public Schools Superintendent Jenkins and superintendents across the state of Florida joined Commissioner Richard Corcoran and State Board of Education members for a 1pm conference call to discuss the Department of Health Emergency Rule 64DER21-15, Protocols for Controlling COVID-19 in School Settings. Superintendent Jenkins defended her face mask mandate for all OCPS students as “legal,” “necessary,” and “reasonable” to protect students and staff. But state officials ruled Orange County violated the state’s emergency policy regarding face coverings.
“There are not less restrictive means for the School Board to prevent the spread of COVID-19,” Superintendent Jenkins said in her prepared remarks. She mentioned that because all students are back in school, social distancing is not possible. While vaccines help mitigate, they are not available for all ages and OCPS is not allowed to mandate the COVID-19 vaccination for enrollment and attendance. “We are optimistic that the numbers will continue to improve over the next three weeks so that we can return to our previous strategy, allowing parents to opt out,” she added about the OCPS mask mandate.
“Districts are required to follow these policies. They can’t pick and choose which parts of the law they want to follow,” Corcoran said during the meeting. State board members ruled the face mask mandate directly violates a Florida Department of Health emergency rule which requires school districts to give parents and guardians the ability to opt their child out of wearing a face covering in school. Orange County has to comply with the directive or face financial consequences.
The school district also issued a statement regarding today’s meeting with the State Board of Education. “The School Board and Superintendent are always concerned about the health, safety and welfare of our students and staff. Based on rising COVID-19 cases at the start of the school year along with advice from local health officials, we believed the best course of action was to require the use of face masks in schools and allow for medical exemptions. We are disappointed in the determination by Commissioner Corcoran and the State Board of Education, but not surprised. Our positivity rates are declining and we will continue to monitor the situation.”
Here are Superintendent Barbara Jenkins’ full remarks for today’s meeting regarding the OCPS mask mandate:
Members of the State Board of Education,
We appreciate the opportunity to respond.
Based upon rising positive case numbers, the School Board directed me on August 24 to require masks of all students unless a medical note was provided for an opt out. This decision was driven by an alarming rise in COVID-19 positivity data at the time. According to the Florida Department of Health in Orange County, for the week of August 13, Orange County’s positivity rate was 18.3 percent, with 609 cases per 100,000 residents–CDC red status of high transmission of infection. In OCPS, we saw concerning numbers of new cases, including a record high 382 the day before that board meeting. I want to assure you that our greatest concern was the safety of our students and staff.
The action was legal. As constitutional officers, we take seriously our charge under Florida Statute 1001.42(8)(a) to protect the health, safety and welfare of students. We believed requiring face masks in our schools was the best way to protect students and staff.
The action was necessary. The district must provide for the continuity of instruction. Required in person learning is hindered if students are isolated due to infection or quarantined due to close contact exposure to COVID-19.
The action was reasonable. The CDC stated in its August 5 guidance that “Due to the circulating and highly contagious Delta variant, CDC recommends universal indoor masking by all students (age 2 and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.” Our highly qualified Medical Advisory Committee was also consulted regarding best strategies.
The data reflects positively on our face mask strategy. In September of last year, we had 220 positive cases with about one-third of our students in attendance. By the end of October, we had experienced 4 school closures–pivots to virtual learning. This year, in September we had 3,107 positive cases in our schools, with full attendance. To date, we have had no school closures. We have seen a sharp decline in positive cases after the mask requirement took effect, and health care professionals have commended the intervention.
Concerning the Emergency Rule adopted on September 22, we believe it conflicts with Florida Statute 1014.03, which is part of the Parent’s Bill of Rights. That legislation does not give the Department of Health the ability to engage in rulemaking to implement the statute.
The School Board also believes the Department of Health exceeded its grant of rulemaking authority in Florida Statute 1003.22(3). Which states that the Department of Health may adopt rules governing “the control of preventable communicable disease.” Prohibiting districts from enforcing face mask usage would not control a preventable communicable disease. Allowing parents to send their student who has been exposed to close contact with a COVID-19 positive individual would not control preventable communicable disease. Again, the CDC has identified mask usage as a mitigation strategy to prevent the spread of communicable disease. Yesterday, the School Board filed a rule challenge to the Emergency Rule with the Division of Administrative Hearings.
Additionally, the Parent’s Bill of Rights specifies that local government entities may not infringe on the parent’s right “without demonstrating that such action is reasonable and necessary to achieve a compelling state interest and that such action is narrowly tailored and is not otherwise served by a less restrictive means.”
There are not less restrictive means for the School Board to prevent the spread of COVID-19. The State did not approve an innovative learning option allowing full funding for students taking classes at home. Since all students are back in school, the mitigation strategy of social distancing is unavailable. Vaccination is an available mitigation for certain ages but, but Florida Statute prohibits requiring COVID-19 vaccination for enrollment and attendance.
Our action is narrowly tailored because the face mask requirement is in place through October 30. We are optimistic that the numbers will continue to improve over the next three weeks so that we can return to our previous strategy, allowing parents to opt out.
Chairman, that concludes my response.
