BPS Chair Misty Belford Issues 5-Page Letter to State of Florida, Commissioner Richard Corcoran Amid Mask Mandate Policy
By Space Coast Daily // September 8, 2021
Belford states BPS has not violated Florida Parents’ Bill of Rights
BREVARD COUNTY, FLORIDA – Misty Belford, Chair of the School Board for Brevard Public Schools, issued a 5-page letter to the Florida Department of Education and Education Commissioner Richard Corcoran asking the state to “withhold any enforcement action or further investigation” of the School Board after the board believes it operated in “good faith complied with all relevant and binding laws.”
See the full letter sent below:
Dear Commissioner Corcoran,
We are in receipt of your letter dated September 3, 2021. This letter is coming from the board chair rather than the superintendent because this was a Board action.
The Board felt it was necessary to pass a short-term emergency face covering policy to mitigate the rising number of Covid-19 cases in Brevard schools.
As such, the School Board called for an emergency meeting on August 30, 2021, where it passed the 30-day emergency policy requiring face coverings on all School Board property.
The following response expands on The School Board of Brevard County, Florida’s (School Board) reasoning for its decision. Respectfully, we hope you will appreciate the exigent circumstances leading to our short-term emergency policy and agree that we have, in good faith, made every reasonable effort to remain in compliance with the Florida Constitution, Florida Statutes, and the DOH Emergency Rule 64DER21-12.
We believe the emergency policy is compliant with the law.
Brevard County is in a major crisis due to a significant influx of Covid-19 patients. As reported by the County’s Emergency Management Office, our hospitals are so overloaded with Covid-19 patients, local health officials have pled for residents to consider other options before taxing our overburdened ambulance or ER services.
Every hospital system in the county is overcapacity. Testing is backlogged. Waiting rooms are full. Pediatric hospitalizations are on the rise.
As noted in the report, the Emergency Director publicly encouraged all residents and visitors to “increase their vigilance” and “return to what we know helps slow the spread when it comes to COVID, which is wearing face coverings, good hand hygiene, practicing social distancing when possible and [vaccinations].”
This steep and troubling surge of Covid-19 patients in our community and most notably, in our schools, predicated the Board’s August 30 emergency meeting. In the short window of time since school started on August 10, the number of students testing positive for Covid-19 and as a result, the number of students and staff out on quarantines—far exceeded any expectations.
Multiple students and staff are hospitalized with Covid-19, some in the ICU on ventilators, which have led to staff deaths. The following data compiled from our BPS Covid-19 dashboard and Brevard DOH was presented at the August 30 meeting:
Normally, what we see in our schools is a reflection of the community in terms of transmission rates. However, at this time, our BPS schools are disproportionately leading the way in positive Covid-19 cases. For perspective, there were 4,498 reported new cases in the entire county between August 20 and August 26. Out of those, 1,410 came from our BPS schools.
Thus, 31% of the total Brevard County cases in that time span came from within our schools, while our school population makes up just over 11% of the county population. Moreover, in three short weeks into the new school year, our Covid-19 rates already far surpass what we saw at the height of the pandemic in the 2020-2021 school year.
The Board could not ignore these alarm bells. Quarantines as of the August 30 emergency meeting had already reached nearly 16,000 students. On August 23 and 24, in consultation with our local DOH, we had to temporarily close one of our middle schools based on an extremely high number of cases and quarantines.
The rapidly escalating trend of positive cases and contact-based quarantines represent an unsustainable trajectory in light of our commitment to honor the State’s expectation of keeping schools open. See F.S. 252.36(1)(c); DOH Rule 64DER21-12 (“lengthy quarantines should be limited at all costs”). With the shared interest of open schools in mind, the Board, with great consideration of the costs, reasonably enacted an emergency policy intended to curb the dangerously high numbers of positive cases and quarantines, and to prevent further school closures.
Notably, the policy (enclosed) is narrowly tailored and limited in both time and scope.
The emergency policy is only in effect for up to 30 days and allows parents and students ample opportunities to opt out or remove the face covering via one of the seven available exceptions delineated in Section 2 of the policy, which includes the opportunity to provide a medical certification.
Moreover, the policy affords a 5-day grace period for families to pursue any documentation needed to participate in the parental opt-out, and any exemptions approved from the prior school year will be honored.
Article IX, Section (1)(a) of our Florida Constitution states, “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public schools that allows students to obtain a high-quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.”
The Board’s ultimate duty under the Florida Constitution to provide for student safety while providing a high-quality education motivated the Board’s decision to implement the emergency mandate. Parents entrust their children to our care every day. We treat student safety as a serious and sacred obligation. From the moment parents drop their child off at the car loop or bus stop, they expect us to do everything we possibly can to keep
This emergency mandate decision was not made lightly nor without consideration of hours upon hours of public comment, parental and community input, and careful evaluation of medical experts, including feedback from our local Department of Health and hospitals.
Given the bleak landscape of skyrocketing cases outlined above, the Board feels a moral and legal obligation to deploy any available mitigation measure that has potential to slow the effect of the deadly Covid-19 virus on our staff and students and reduce overall quarantines to maintain continuity of education.
Ultimately, in line with our constitutional duties, our goal is to keep students safe while keeping school doors open.
The State Board of Education and Department of Education is asserting we are in violation of the Parents’ Bill of Rights (“PBR”). The PBR was created by HB 241 and created Chapter 1014 of the Florida Statutes. 1014.03, Fla. Stat., prohibits government entities from:
“[I]nfring[ing] on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health of his or her minor child 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 less restrictive means.” (emphasis added)
The School Board’s actions were reasonable and necessary in light of the current worldwide Covid-19 pandemic, the more infectious and virulent strain of Covid-19 known as the Delta variant, and the alarming local influx of cases in the month of August, especially evidenced at the higher-than-average rates demonstrated within the school district, which far outpaced the overall Brevard County rates, as cited above.
Pursuant to the Florida Constitution and Florida Statute 1002.20, Florida’s school boards are charged with the health, safety, and welfare of students and staff. The numbers provided should be alarming and more than justify the Board’s reasonable concern over the health, safety, and welfare of the students and staff under its care.
Moreover, the continued trajectory was unsustainable and would have resulted in more school closures preventing teacher led instruction as there is no allowance for schools to implement the innovative e-learning options that were utilized during the last school year.
The School Board takes the obligations of the health, safety, and welfare of its students and staff seriously, and consider this to be a compelling state interest. The limited-in-time and limited-in-scope emergency mandate implemented by the School Board was as narrowly tailored as possible. Only two measures serve as recommended mitigation strategies. First is vaccination. There is no requirement by the State for students to be vaccinated.
Moreover, only those students 12 and over are eligible for vaccination. As such, all students from Pre-K through 6th grade are not eligible for this mitigation strategy. The second mitigation strategy is masking combined with social distancing, which we employed last year with relative success.
The School Board requires social distancing as much as possible given we have more students in brick-and-mortar schools with no e-learning option to de-densify the school population. As such, social distancing has limited effectiveness. We combined social distancing with optional face coverings to open the school year.
School staff strongly recommended but did not require face coverings when we opened the year.
This strategy resulted in the above numbers and the closing of a school. The School Board needed to take swift additional action to slow the spread through the schools and continue educating children.
A side benefit of the mandatory face covering policy is that it reduces the number of quarantines resulting from contact to positive cases as everyone is utilizing a face covering, further allowing the education of students in class.
There are no less restrictive means for the School Board to act in order to keep students in school. The mandate was limited to only thirty (30) days so that the Board will soon have an opportunity to re-evaluate Covid-19 levels within the schools to determine if it is safe to move the mandate back to an optional model with a strong encouragement to use a face covering. Both the CDC and Florida DOH acknowledge the ability of face coverings to serve as a mitigation strategy for slowing the spread of Covid-19.
Even the DOH’s Emergency Rule acknowledges face coverings as a mitigation strategy. The School Board elected to follow the CDC’s recommendations for trying to regain some semblance of control over the number of students being removed from the schools.
Furthermore, Section 252.36, Fla. Stat., evidences the Florida Legislature’s intent to authorize implementation of any and all mitigation strategies recommended by federal or state health agencies to keep schools open.
Specifically, 252.36, Fla. Stat., provides as follows:
“The Legislature intends that, during an extended public health emergency, such as the COVID-19 pandemic, there should be a presumption that K-12 public schools, to the greatest extent possible, should remain open so long as the health and safety of students and school personnel can be maintained by specific public health mitigation strategies recommended by federal or state health agencies for educational settings.”
This language specifically allows, and directs, that schools will only be closed when mitigation strategies recommended by federal or state health agencies will not allow for keeping students and staff healthy and safe.
The plain language of the statute serves as a limitation and authorization for use of federal or state health agency recommendations for mitigating effects of an extended public health emergency such as Covid-19.
Finally, the Board considers its compliance with Section 768.38, Fla. Stat., as relevant to the overall decision to temporarily implement a face covering mandate. Given the vastly higher number of positive Covid-19 cases this school year compared to last, the Board finds reimplementation of its previously central mitigation strategy, mandatory face coverings, to be necessary to preserve its liability protections from Covid-19 related claims.
Specifically, the statute provides the School Board must demonstrate “a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.” F.S. 768.38(3)(c)(2).
Further, “If more than one source or set of standards or guidance was authoritative or controlling at the time the cause of action accrued, the defendant’s good faith effort to substantially comply with any one of those sources or sets of standards or guidance confers such immunity from civil liability.” F.S. 768.38(3)(c)(2)(b). Given the highly litigated and untenable status of the DOE’s interpretation of DOH Emergency Rule 64DER21-12, the School Board finds the more protective and conservative path toward compliance with Section 768.38, Fla. Stat., is to follow CDC guidance along with DOH guidance that expressly recognizes masks or facial coverings “as a mitigation measure.” Conversely, for the School Board to not employ a recognized mitigation measure in its arsenal at a time when its Covid-19 rates within its schools are vastly higher than at any point last school year (when mandatory masking was in place), the door may be opened to a claim of gross negligence that could threaten the School Board’s eligibility for immunity pursuant to Section 768.38, Fla. Stat.
Neither the DOE nor the DOH rules can supersede statutes passed by the Florida Legislature.
The School Board has demonstrated its compliance with existing Florida Statutes.
Specific to the Parents’ Bill of Rights, the School Board has a reasonable basis for implementing its mandate to achieve a compelling state interest. The mandate was implemented for a short time requiring frequent review and evaluation, limiting its duration and scope. There are no less restrictive measures available to achieve the outcome sought by the School Board.
DOH Emergency Rule 64DER21-12
The Commissioner’s letter interprets DOH Emergency Rule 64DER21-12 to require a blanket parental opt-out with no specified grounds for opting-out.
Respectfully, the School Board disagrees with that interpretation of the Rule. By its plain language, the Rule states, “Students may wear masks or facial coverings as a mitigation measure; however, the school must allow for a parent or legal guardian of the student to opt-out the student from wearing a face covering or mask.” (1)(d). The Rule does not state that the school must allow an opt-out for any and all—or
The School Board’s emergency mandate does, in fact, allow for a parent or legal guardian to opt-out the student from wearing a face covering or mask on the grounds delineated in the policy.
Therefore, the School Board’s position is that the emergency mandate complies with DOH Emergency Rule 64DER21-12.
In light of the localized data presented above, we hope you will agree the alarming pace of positive cases and quarantines within our school district was unsustainable.
Considering the threat posed to Brevard County’s children by removing over 15,000 of our students from school in a span of less than three weeks, we believe the School Board has demonstrated it has effectively and in good faith complied with all relevant and binding laws, including the DOH Emergency Rule and importantly, the Parents’ Bill of Rights.
This swift yet short-term action we believe was necessary to keep our schools open, keep our students safe, and keep our students educated.
We respectfully request due to the exigent circumstances of the record-high positive cases and quarantines experienced in Brevard County Schools as of the August 30 emergency mandate, and in light of the narrowly tailored, limited-in-time and limited-in-scope nature of the temporary mandate, that the DOE withhold any enforcement action or further investigation as the School Board has satisfied the plain language of the Florida Parents’ Bill of Rights.
Misty Belford, Chair
School Board Brevard County
Paul Gibbs, General Counsel
School Board Brevard County