State Board of Education Richard Corcoran

Commissioner of Education
Tom Grady, Chair
Ben Gibson, Vice Chair
Members
Monesia Brown
Marva Johnson
Ryan Petty
Andy Tuck
Joe York

MEMORANDUM

TO: State Board of Education Members

FROM: Richard Corcoran

RE: Duval County School District, Student Opt-Out Requirements

DATE: October 4, 2021

Based upon the following memorandum, I find there is probable cause that the Duval County
School Board (DCSB) acted contrary to the law by requiring students to wear a mask or face
covering unless certain exceptions apply, such as a medical certification. Specifically, DCSB’s
policy violated the provisions of Rule 64DER21-12 and continues to violate Rule 64DER21-15,
Protocols for Controlling COVID-19 in School Settings.

Background Information

On July 30, 2021, the Governor issued Executive Order Number 21-175, directing the Florida
Department of Health (FDOH) and the Florida Department of Education (FDOE) to immediately
execute rules and take any additional action necessary to ensure safety protocols for controlling
the spread of COVID-19 in schools. The order requires that these protocols be consistent with
the Parents’ Bill of Rights and directs that action “protect parents’ right to make decisions
regarding masking of their children in relation to COVID-19.” Moreover, the order directs the
Commissioner of Education to pursue all legal means available to ensure school districts adhere
to the law, including but not limited to withholding funds from noncompliant school boards.

On August 6, 2021, in response to the executive order, and after consultation with FDOE, the
State’s former Surgeon General, Scott Rivkees, as the head of FDOH, adopted an emergency
rule establishing protocols for controlling the spread of COVID-19 in schools. Given the
statutory duty of FDOH to implement protocols to prevent or limit the impact or spread of
disease, the State’s Surgeon General must be a licensed physician with advanced training or
extensive experience in public health administration. See § 20.43(2), Fla. Stat. The rule provided
for general protocols for public schools, protocols specific to symptomatic or COVID-19
positive students, protocols specific to students with exposure to COVID-19 and protocols for
students with a prior COVID-19 infection. The portion of the rule addressing masks provided as
follows: Students may wear masks or facial coverings as a mitigation measure; however,

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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. See Rule 64DER21-12, Protocols for Controlling
COVID-19 in School Settings, Florida Administrative Register, Vol. 47 / No. 153, August 9,
2021 (emphasis supplied).

Citing to the Parents’ Bill of Rights, the notice for FDOH’s emergency rule provided that “it is
necessary to immediately promulgate a rule regarding COVID-19 safety protocols that protects
parents’ rights and to allow for in-person education for their children.”

On September 22, 2021, under the direction of the State’s new Surgeon General, Dr. Joseph
Ladapo, FDOH issued a revised rule to address controlling the spread of COVID-19 in school
settings. Rule 64DER21-15 relaxes the requirements for quarantining asymptomatic students
who have been exposed to COVID-19, and further clarifies the parental opt-out provision by
providing that a “school must allow for a parent or legal guardian of the student to opt the
student out of wearing a face covering or mask at the parent or legal guardian’s sole discretion.”
See Rule 64DER21-15, Florida Administrative Register, Vol. 47 / No. 185, September 23, 2021
(emphasis supplied). See Exhibit A.

The purpose of these changes is explained by FDOH in its notice for the new rule:

The Department [of Health] observed a large number of students have been
required to quarantine for long periods of time, resulting in the loss of hundreds of
thousands of days of in-person learning. In addition, the Department [of Health]
observed no meaningful difference in the number of COVID-19 cases in school-
aged children in counties where school districts have imposed mask mandates. It
is necessary to minimize the amount of time students are removed from in-person
learning based solely on direct contact with an individual that is positive for
COVID-19, to ensure parents and legal guardians are allowed the flexibility to
control the education and health care decisions of their own children, and to
protect the fundamental rights of parents guaranteed under Florida law.

Id.

Duval County School District

On August 22, 2021, DCSB posted notice of its intent to hold an emergency meeting on August
23, 2021, concerning amendment of its policy regarding student face coverings. DCSB held the
meeting, therein voting to adopt the proposed amendment, which provides as follows:

I. Subject to the process that provides for a parent to opt out their student
from this policy due to a medical, physical, or psychological condition evidenced
by a medical certification […] all students must wear a face covering that covers
both the nose and the mouth at all times while inside a school or any
administrative facility, inside a building for purposes of a school-related or
school-sponsored events (except as provided in administrative guidance for
District athletics and performing arts, which will be conspicuously posted at
 District athletics and performing arts events), or on District-approved
transportation.

II. Opt-out/Exemptions. A face covering will not be required when it would

cause an impairment due to an existing health condition as evidenced by a
medical certification. To claim an exemption/opt-out due to an existing health
condition, the District will require a medical certification from a licensed health
care provider that the student has a medical, physical, or psychological condition
that prevents the student from being able to safely wear a face covering, and a
description of the medical reason. This certification will be set forth on a form
identified by a process and format by the District.

See Exhibit B. The DCSB’s face covering policy appears to require all students within schools
and administrative facilities to wear face coverings that cover the nose and mouth, and provides
exceptions based only upon medical certification or DSCB’s athletics and performing arts
guidelines. This policy is in effect for a ninety (90)-day period, which began on September 7,
2021.

On August 27, 2021, I wrote DCSB’s superintendent and school board chair to notify them of
my concern with their apparent non-compliance with Rule 64DER21-12 and to afford the district
the opportunity to demonstrate compliance. See Exhibit C.

On September 1, 2021, DCSB’s superintendent and board chair responded to me in writing,

asserting that DCSB’s policy is in compliance with the FDOH’s emergency rule because it
allows exceptions to the mask mandate. See Exhibit D. The letter did not rescind the requirement
for medical documentation in order for a student to opt-out of the district’s mask mandate. Later,
at its September 7, 2021, board meeting, the DCSB voted to approve an automatic suspension of
the mask mandate if certain health data points were met; however, the DCSB action did not
rescind the requirement for medical documentation in order for a student to opt-out of the mask
mandate when it is being enforced. See Exhibit E.

On September 23, 2021, due to the adoption of FDOH’s new rule, I advised DCSB’s
superintendent and school board chair of Rule 64DER21-15, and afforded the district another
opportunity to demonstrate compliance. See Exhibit F.
On September 24, 2021, DCSB’s Superintendent Greene and Chair Andersen responded to me in
writing, requesting an extension of time to respond until September 30, 2021, as DCSB planned
to call a special meeting for September 28, 2021, to discuss the rule and response, among other
issues. See Exhibit G.

On September 30, 2021, Superintendent Greene and Chair Andersen provided a supplemental
letter, explaining that DCSB’s policy included a provision to allow the Superintendent to
automatically suspend the mask mandate if certain data points were met, i.e., when the county’s
rolling seven-day positivity rate declined to 7.99% or less and the rolling seven-day new case
count per 100,000 people, declined to 49.99% or fewer. See Exhibit H. The letter stated that the
Superintendent planned to suspend the mask mandate the following week based on data received.
However, the Superintendent and Chair advised via letter on October 1, 2021, that the data
received was in error and that the mask mandate would stay in place. See Exhibit I. These most
recent letters demonstrate the underlying issue with DCSB’s policy—while it purports to have an
automatic suspension provision, which should take effect upon the county having met certain
health criteria—the underlying mask mandate (and requirement for medical documentation in
order to opt-out from the same) remains in effect and may be enforced at any time certain data
criteria are met. Furthermore, the letter did not rescind or modify the requirement for medical
documentation in order for a student to opt-out of the mask mandate.

At present, DCSB’s mask policy requires all students within schools and administrative facilities
to wear face coverings that cover the nose and mouth, and provides exceptions based only upon
medical certification or DCSB’s athletics and performing arts guidelines. While the policy
contains a suspension provision which deactivates the mandate if local positivity rates drop
below a certain threshold, the policy automatically reinstates if positivity rates rise and precludes
voluntary opt-out at the parent’s or guardian’s sole discretion.

The State Board of Education’s Enforcement Authority

The State Board of Education’s enforcement authority is found in section 1008.32, Florida
Statutes. The statute provides that “[t]he State Board of Education shall oversee the performance
of district school boards [...] in enforcement of all laws and rules.” § 1008.32, Fla. Stat.

In enforcing the law, the statutory process prescribed therein requires that I first report my
determination of probable cause to the State Board of Education. If the State Board then
determines that a district school board is unwilling or unable to comply with either law or rule,
the State Board is authorized to impose sanctions in order to secure compliance, including the
withholding of funds and reporting to the Legislature.

Any argument that the State Board’s authority to enforce these safety protocols interferes with
any district school board’s authority to operate and control schools should be summarily rejected.
Indeed, the law in Florida is clear that the State Board’s supervisory authority acts as a limitation
on the operational authority of districts to operate, control and supervise public schools.

Looking to the Florida Constitution, there is a hierarchy under which a school board has local
control, but in which the State Board supervises the system as a whole. This broader supervisory
authority may at times infringe on a board’s local powers, but such infringement is expressly
contemplated and, in fact, encouraged by the very structure set by the Florida Constitution. See
Sch. Bd of Palm Beach Cty. v. Fla. Charter Educ. Found, Inc., 213 So. 3d 356, 360 (Fla. 4th
DCA 2017) (rejecting school board’s argument that the State Board of Education’s authority to
approve a charter school application on appeal violates article IX, section 4(b)); see also Sch. Bd
of Collier Cty v. Fla. Dep’t of Education, 279 So. 3d 281 (Fla. 1st DCA 2019) (rejecting school
board’s argument that statute requiring school boards to distribute a portion of capital millage
revenue to charter schools violates article IX, section 4(b)).

Accordingly, any argument that the State Board of Education lacks the authority to enforce these
school safety protocols should also be rejected. It has long been settled that rules have the force
and effect of the law. State v. Jenkins, 469 So. 2d 733 (Fla. 1985); Florida Livestock Board v.
W.G. Gladden, 76 So. 2d 291 (Fla. 1954). Rule 64DER21-15 derives authority from a statute in
the educational code—specifically, section 1003.22(3), Florida Statutes—so while FDOH may
also have enforcement authority, enforcement of school safety protocols falls squarely within the
State Board of Education’s authority to supervise the state’s education system as a whole.

Conclusion

Every school board member and every school superintendent has a duty to comply with the law,
whether they agree with it or not. While the district school board may not agree with the safety
protocols set forth by the Surgeon General, the Surgeon General is the person who, under the
law, sets protocols to control and mitigate COVID-19 in schools. The Office of the Attorney
General relied upon these principles to reject any argument a school board could depart from
FDOH’s emergency rule based upon a disagreement with the protocols found in the rule. See
AGO 2021-01, September 1, 2021. Disagreement with the protocols found in 64DER21-15
simply does not provide a school district with a basis to violate the rule, be it through medical
requirements, attempts to tie mask requirements to fluctuating positivity rates, or through any
other means.

All of this in mind, I hereby recommend that the State Board of Education use its enforcement
powers to enforce the health protocols found in Emergency Rule 64DER21-15 and protect the
right of parents to make both health and educational decisions on behalf of their children.

Should the State Board adopt my recommendation, I request that it consider the sanction of
withholding state funds in an amount equal to 1/12 of all school board members’ salaries, as well
as withholding state funds in an amount equal to any federal grant funds awarded to the DCSB
for its noncompliance with Emergency Rule 64DER21-15.
EXHIBIT A
EXHIBIT B
 EMERGENCY RULE OF THE SCHOOL BOARD OF DUVAL COUNTY

WHEREAS, Article IX, § 1 of the Florida constitution provides for a

uniform, efficient, safe, secure, and high-quality system of free
education; and
WHEREAS, To achieve a uniform, efficient, and safe school system, the
Florida Constitution created school boards (Art. IX); and
WHEREAS, The Florida constitution grants the school boards the right
to “operate, control and supervise all free public schools.” See Art. IX §
4 (Fla. Const.); and
WHEREAS, The School Board of Duval County, Florida (the “School
Board”) is a duly elected body; and
WHEREAS The School Board is responsible for the “proper attention to
health, safety, and other matters relating to the welfare of students.” Fla.
Stat § 1001.42(8)(a); and
WHEREAS, The School Board also has supplemental powers to “adopt
programs and policies to ensure appropriate response in emergency
situations.” Fla. Stat. § 1001.43(7); and
WHEREAS Duval County Public Schools is one of the largest school
districts in Florida;
WHEREAS, The School Board of Duval County values the health,
safety, and welfare of its students and the District staff; and
WHEREAS, The Delta variant of COVID-19 has been shown to be
highly transmissible; and
WHEREAS, the Governor of Florida issued Executive Order 21-175
which in part directed the Florida Department of Health and the Florida
Department of Education to immediately execute emergency rule to
ensure safety protocols for controlling the spread of COVID-19 IN
SCHOOLS; and
WHEREAS, The Florida Department of Health executed Emergency
Rule 64DER21-12 which provides in part “Student may wear masks or
facial covering 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”; and
WHEREAS, The 2021-2022 school year began on August 10, 2021 in
Duval County; and
WHEREAS, After only ten days of school, 815 cases of Covid-19 were
reported to FDOH. Of those, 111 involved staff and 704 involved
students who reported a positive Covid-19 result; and
WHEREAS, a total of 2498 cases were reported in total on the School’s
dashboard for the 2020-2021 school year, meaning that in less than a
week into the 2021-2022 school year beginning, DCPS was already at
19% of the total cases reported for the entire 2020-2021 school year;
WHEREAS, the Florida Department of Health has admittedly been
unable to complete contact tracing, case investigations and timely
notification to impacted families regarding the results of the
investigation;
WHEREAS, of the 895 Covid-19 positive cases reported this year, only
106 cases have been completed and closed by FDOH;
WHEREAS, due to an immediate danger to public health, safety, and
welfare that required emergency action, an Emergency meeting of the
School Board was called by the Chair, as well as other Board members,
to immediately address the emergency; and
WHEREAS, The School Board of Duval County heard from the Duval
County Department of Health and medical experts and doctors at
numerous meetings predating the emergency meeting as well as at the
August 23, 2021 emergency meeting; and
WHEREAS, The doctors and medical experts testified that the wearing
of masks and vaccines are the most effective tools for controlling the
spread of COVID-19 in schools; and
WHEREAS, Masks protect the wearer and those around them by
protecting against the transmission of large droplets from one person to
another; and
WHEREAS, Mask usage is beneficial to keeping children in school;
and
WHEREAS, The U.S.Food & Drug Administration (“FDA”) previously
stated: “There is no adequate, approved, and available alternative to the
emergency use of face masks for source control by the general public …
to help prevent the spread of the virus due to face mask shortages during
the COVID-19 pandemic”; and
WHEREAS, The Emergency Rule executed by the Department of
Health does not prohibit the requirement of a medical certificate for
opting out; and
WHEREAS, The Emergency rule adopted by the School Board of Duval
County gives the decision opting out of the facial covering requirement
to the parent with a medical certification; and
WHEREAS, The Center for Disease Control (“CDC”) recommends
children in school wear facial coverings indoors.
NOW, THEREFORE, THE SCHOOL BOARD OF DUVAL COUNTY ENACTS
THE FOLLOWING EMERGENCY RULE PURSUANT TO SECTION 120.54,
FLORIDA STATUTES AND BOARD POLICY 2.25:
I. Subject to the process that provides for a parent to opt out their
student from this policy due to a medical, physical, or psychological
condition evidenced by a medical certification (see paragraph II), all
students must wear a face covering that covers both the nose and the
mouth at all times while inside a school or any administrative facility,
inside a building for purposes of a school-related or school-sponsored
events (except as provided in administrative guidance for District
athletics and performing arts, which will be conspicuously posted at
District athletics and performing arts events), or on District-approved
transportation.
II. Opt-out/Exemptions. A face covering will not be required when
it would cause an impairment due to an existing health condition as
evidenced by a medical certification. To claim an exemption/opt-out
due to an existing health condition, the District will require a medical
certification from a licensed health care provider that the student has a
medical, physical, or psychological condition that prevents the student
from being able to safely wear a face covering, and a description of the
medical reason. This certification will be set forth on a form identified
by a process and format by the District.
III. Duration of Emergency Rule. The Emergency Rule was approved
by the School Board on August 23,2021, for a ninety (90) day period
(except as set forth in paragaraph IV) commencing on September 7,
2021.
IV. Further action required. The Superintendent shall develop
procedures, to be approved by the Board on September 7, 2021, that
provide for certain health data points to result in an automatic
suspension of this emergency policy while such policy is in effect.
V. Basis for Emergency Rule
This Emergency Rule approved is based upon the School Board’s
findings at the Emergency Meeting held August 23, 2021 including, but
not limited to the number of students and staff in the DCPS reporting
positive COVID-19 tests, FDOH’s admitted inability to conduct timely
case investigations which has a direct impact on the spread of the virus
throughout our schools, and communication predating and occurring at
the August 23, 2021 meeting from the professional health community.
VI. Procedural Fairness Afforded.
The meeting was properly noticed on August 22, 2021 at 1:00 p.m. and
amended and reposted on August 23, 2021 at 9:00 a.m.
EXHIBIT C
 FLORIDA DEPARTMENT 0 !

State Board of Education

cl.JULA luN
- - - -- - - - fldoe.org Richard Corcoran
Commissioner of Education
Tom Grady, Chair
Ben Gibson, Vice Chair
Members
Monesia Brown
Marva Johnson
Ryan Petty
Andy Tuck
Joe York

August 27, 2021

Dr. Diana L. Greene Ms. Elizabeth Andersen

Superintendent School Board Chair
Duval County Public Schools Duval County Public Schools
1701 Prudential Drive 1701 Prudential Drive
Jacksonville, FL 32207 Jacksonville, FL 32207

Dear Superintendent Greene and Chair Andersen:

This letter is sent to express my grave concern regarding your district's response to the recently
adopted Emergency Rule 64DER21-12 from the Florida Department of Health. This rule, issued
on August 6, 2021, by the Florida Surgeon General, Dr. Scott Rivkees, explicitly requires that
any mandated mask policy imposed by a district or school "must allow for a parent or legal
guardian of the student to opt-out the student from wearing a face covering or mask." The
emergency rule does not require parents to submit medical documentation in order to opt-out.

Executive Order 21-17 5 directed the Florida Department of Health and the Florida Department
of Education to execute rules to ensure safety protocols for controlling the spread ofCOVID-19
in schools. The Order directs further that any such action must "at minimum be in accordance
with Florida's Parents' Bill of Rights and protect parents' right to make decisions regarding
masking of their children in relation to CO VID-19." Because the Florida Department of Health,
under section 1003.22(3), Florida Statutes, is the agency authorized to adopt rules governing the
control of communicable diseases, the Florida Department of Health adopted an emergency rule
establishing protocols for controlling COVID-19 in public schools. The rule provides, in part, as
follows:

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.

Rule 64DER21-12(1)(d), Florida Administrative Register, Vol. 47/No. 153, August 9, 2021.

Recent reports in the media indicate that the Duval School Board has taken action inconsistent
with the emergency rule by limiting or conditioning the parental ability to opt-out of a face
covering or mask mandate. Section 1008.32, Florida Statutes, states, "The State Board of
Education shall oversee the performance of district school boards and the Florida College
System institution board of trustees in enforcement of all laws and rules." Further, section

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325 W. Gaines Street I Tallahassee, FL 32399-0400 I 850-245-0505
1008.32(2)(a), Florida Statutes, states that the "Commissioner of Education may investigate
allegations of noncompliance with law or state board rule and determine probable cause."

Based on this authority, I am immediately initiating an investigation of non-compliance with the

rule adopted by the Florida DepartmentofHealth on August 6, 2021. In commencing this
investigation, I am demanding that you provide a written response by 5:00 p.m: on Wednesday,
September 1, 2021, documenting how your district is complying with Florida Department of
Health Emergency Rule 64DER21-12. Should you fail to document full compliance with this
rule, in accordance with section 1008.32, Florida Statutes, I intend to recommend to the State
Board of Education that the Department withhold funds in an amount equal to the salaries for all
the members of the School Board, as well as other sanctions authorized by law, until the district
comes into compliance.

Parents have a fundamental right to direct the upbringing, education and care of their minor
children. The Department of Education will protect that right.

ZJ11t1~
Richard Corcoran
Commissioner
EXHIBIT D
 Dr. Diana Greene
Superintendent

1701 Prudential Drive | Jacksonville, FL 32207

904.390.2115 | Fax 904.390.2586
GreeneD@duvalschools.org | www.duvalschools.org

September 1, 2021

Commissioner Richard Corcoran

Florida Department of Education
325 W. Gaines St.
Tallahassee, FL 32399-0400

Dear Commissioner Corcoran,

This letter is in response to your August 27, 2021 demand for a written response
documenting how the Duval County School Board (DCSB) is complying with Florida
Department of Health Emergency Rule 64DER21-12. As an initial matter, the DCSB is
in compliance with the Rule.

The DCSB passed its own Emergency Rule regarding face coverings (the “Mask
Policy”) in light of dangerous and startling health conditions in its school district and the
local community. The DCSB first considered a mask policy at its August 3, 2021,
meeting. Since school had not yet started, the DCSB implemented a mask policy that it
felt would sufficiently balance the safety of students with parents’ ability to opt students
out of wearing masks. The policy strongly encouraged students to wear masks but
allowed parent and guardians to opt students out of wearing a mask for any reason.
However, once school started on August 10, 2021, additional facts and evidence came to
light such that it became clear that allowing unconstrained opt-outs presented a clear and
present danger to staff and students. It was then decided to revisit the mask issue at the
Board’s August 23, 2021, meeting.

At the August 23, 2021, meeting, the DCSB enacted its current Mask Policy
requiring all students to wear masks (with an opt-out described more fully below)
because there were over 800 COVID-19 cases within the District after the first ten days
of school. This number represented over 30% of total cases from the entire 2020-2021
school year. After three weeks of school, there are over 1600 COVID-19 cases in the
District which represents 65% of the total cases from last year. Moreover, eleven
District employees have died of COVID-19 related complications since the beginning of
the 2020-2021 school year.
 In addition, the Duval County Health Department (DCHD) is unable to complete
contact tracing on all of the positive cases arising in the District. As of August 23, 2021,
the DCHD had only been able to close out 106 of the 895 cases. Cases which have been
closed out are those where the DCHD has been able to complete contract tracing to
ensure students and staff who have been exposed to COVID-19 are properly notified of
their exposure. Therefore, a significant number of students and staff who were and are
being exposed to COVID-19 are not being quarantined, which further contributes to the
rampant spread of COVID-19.

There was abundant testimony at prior meetings and workshops of the DCSB as
well as at the DCSB’s August 23, 2021, meeting 1 about the critical and compelling need
for students and staff to wear masks in an effort to reduce the spread of COVID-19.
Representatives from the Duval County Health Department, physicians from the local
pediatric hospital, and many other licensed health care workers were adamant about the
need for everyone to wear face coverings while inside a school or administrative
building. In the face of such testimony and the rapid and widespread increase in
infections, the DCSB was compelled to take action to protect the health of students and
staff and create the best opportunity for our children to continue in-person education this
1
The following physicians testified and answered questions from the Board at the
August 23, 2021 meeting:

Dr. Mobeen Rathore

o Chair, Infection Prevention and Control Committee, Baptist Health System
o Hospital Epidemiologist and Chief, Pediatric Infectious Diseases and
Immunology, Wolfson Children’s Hospital

Dr. Sunil Joshi

o President, Duval County Medical Society Foundation

Ernesto “Tito” Rubio, MPH

o Interim Administrator/Health Officer Duval County

Dr. Jeffery Goldhagen

o Prof. Community Hospice of Northeast FL/Neviaser Family Professor in Pediatric

Palliative Care Dept. of Pediatrics
o Chief Div. of Community and Societal Pediatrics
o Program Director, Community and Societal Pediatrics Fellowship – UF Health
Jacksonville

EVERY SCHOOL. EVERY CLASSROOM. EVERY STUDENT. EVERY DAY.

school year. The DCSB is not relying solely on masks to help prevent the spread of
COVID-19; it is implementing a multi-layered approach to providing all feasible
COVID-19 mitigation measures.

It was not and is not the intent of the DCSB to violate any lawful rule of the
Board of Education or the Department of Health. Indeed, the DCSB’s Mask Policy
complies with the Department of Health’s Emergency Rule. As your letter
appropriately states, that rule requires an option for “a parent or legal guardian of the
student to opt-out the student from wearing a face covering or mask,” and the DSCP
Mask Policy does exactly this. Paragraph 2 of the Mask Policy provides for “Opt-
out/Exemptions.” As the Emergency Rule requires, this paragraph provides a method
for parents to opt students out of wearing a mask with a medical certification from a
licensed health care provider that the student has a medical, physical, or psychological
condition that prevents the student from being able to safely wear a face covering. The
opt-out form is one page and requires only two signatures; it is not onerous. The DOH
rule does not state the opt-out must be unlimited, or otherwise prevent schools from
establishing parameters for the opt-out.

In a further effort to use reasonable and necessary actions that are narrowly
tailored to further its compelling state interest, the DCSB also provided a generous lead
time for parents and guardians to opt-out before the Mask Policy goes into effect. The
Mask Policy was approved by the DCSB on August 23, 2021, but it does not go into
effect until September 7, 2021. This provided parents and guardians two weeks to
obtain the necessary signatures to opt out if appropriate.

In addition, the Mask Policy is temporary in nature. It is only in effect for ninety
days and can be automatically suspended by the Superintendent without Board approval
should certain health data points be met. The data points will be determined in
consultation with the Florida Department of Health and local physicians based on
transmission rate in the community. These measures and the ones cited above comply
with both the Emergency Rule and the Parents’ Bill of Rights. DCSB is committed to
providing safe and in-person education this school year.

Sincerely,

Dr. Diana L. Greene Board Chair Elizabeth Andersen

EVERY SCHOOL. EVERY CLASSROOM. EVERY STUDENT. EVERY DAY.

EXHIBIT E
 September 7, 2021, Regular Board Meeting

Title
28. APPROVAL OF FACIAL COVERING SUSPENSION CRITERIA PURSUANT TO AN
EMERGENCY RULE OF THE DUVAL COUNTY SCHOOL BOARD

Recommendation
That the School Board of Duval County, Florida accept the attached criteria developed
in consultation with the Florida Department of Health-Duval and other local medical
officials to automatically suspend the Board's Emergency Rule during the 90-day
period the rule is in effect.

Description
On August 23, 2021 the School Board approved an Emergency Rule requiring all students to
wear a face covering that covers both the nose and the mouth at all times while inside a
school or any administrative facility, inside a building for purposes of a school-related or
school-sponsored event (except as provided in administrative guidance for District athletics
and performing arts, which will be conspicuously posted at District athletics and performing
arts events), or on District-approved transportation. If a student has a medical, physical, or
psychological condition that prevents him/her from safely wearing a face covering, his/her
parent and/or guardian may opt their child out of this requirement by providing medical
certification through the district’s process which includes completion of a COVID-19 Face
Covering Certification. Students who 1) submitted documentation containing substantially
similar information to what is contained in the COVID-19 Covering Certification, and 2) the
condition set forth in those documents still applies to the student due to a continuing condition,
are not required to additionally submit the COVID-19 Face Covering Certification form for the
2021-2022 school year.

The Emergency Rule is effective September 7, 2021 for a ninety day period. Section IV of
the Emergency Rule requires the Superintendent to develop procedures that provide for
certain health data points that will result in an automatic suspension of the Emergency Rule
during the 90-day period the rule is in effect.

Gap Analysis
The Superintendent has been directed to provide criteria for the Board's consideration at the
September 7, 2021 Regular Board Meeting.

Previous Outcomes
None

Expected Outcomes
The Board will consider and approve the recommendation developed through collaboration
with the Florida Department of Health and other local health experts.
Strategic Plan Goals and Principles
Guiding Principle V: DCPS will provide a culture and climate that improves academic, social,
and emotional development.

Financial Impact
None.

Contact
Sonita Young, Chief of Staff, (904) 390-2590

Attachments
1. Transmission Rate BM
Pursuant to Section IV of the Board’s Emergency Rule regarding facial coverings,
the mandatory mask requirement for Duval County Public Schools shall be
immediately suspended when the level of community transmission of COVID-19
in Duval County, Florida reaches a “Moderate Level” on a 7-day rolling average.
Transmission rate is defined by the Centers for Disease Control and Prevention
(CDC) as:

Low Moderate Substantial High

New cases per 100,000
<10 10-49.99 50-99.99 ≥100
persons in the past 7 days
Percentage of positive
NAATs tests during the past <5% 5-7.99% 8-9.99% ≥10.0%
7 days
EXHIBIT F
State Board of Education Richard Corcoran
Commissioner of Education
Tom Grady, Chair
Ben Gibson, Vice Chair
Members
Monesia Brown
Marva Johnson
Ryan Petty
Andy Tuck
Joe York

September 23, 2021

Dr. Diana L. Greene Ms. Elizabeth Andersen

Superintendent School Board Chair
Duval County Public Schools Duval County Public Schools
1701 Prudential Drive 1701 Prudential Drive
Jacksonville, FL 32207 Jacksonville, FL 33207

Dear Superintendent Greene and Chair Andersen:

This letter is to advise you of the Department of Health’s new emergency rule revising the
“Protocols for Controlling COVID-19 in School Settings” and to provide you one more
opportunity to come into compliance with the requirements established by the Department of
Health.

A copy of the Department of Health’s new rule, 64DER21-15, is attached. It revises the
requirements for quarantining asymptomatic students who have been exposed to COVID-19 and
further clarifies the parental opt-out provision to foreclose the erroneous interpretation that the
parental opt-out permits a medical-only opt-out. That provision now provides that “ . . . the
school must allow for a parent or legal guardian of the student to opt the student out of wearing a
face covering or mask at the parent or legal guardian’s sole discretion.” See, Rule 64DER21-
15(1)(d), Florida Administrative Register, Vol. 43 / No. 185, September 23, 2021 (emphasis
supplied). The purpose of these changes is explained by the Department of Health in its notice
for the new rule.

The Department [of Health] observed a large number of students have been
required to quarantine for long periods of time, resulting in the loss of hundreds of
thousands of days of in-person learning. In addition, the Department [of Health]
observed no meaningful difference in the number of COVID-19 cases in school-
aged children in counties where school districts have imposed mask mandates. It
is necessary to minimize the amount of time students are removed from in-person
learning based solely on direct contact with an individual that is positive for
COVID-19, to ensure parents and legal guardians are allowed the flexibility to
control the education and health care decisions of their own children, and to
protect the fundamental rights of parents guaranteed under Florida law.

www.fldoe.org
325 W. Gaines Street | Tallahassee, FL 32399-0400 | 850-245-0505
Dr. Greene, Ms. Andersen
September 23, 2021
Page Two

I am continuing the investigation of your district’s mask mandate that I notified you by letter of
August 27, 2021. Based upon the authority provided to me under s. 1008.32(2)(a), Florida
Statutes, I request that you provide a written response by 5:00 p.m. on September 24, 2021,
documenting how your district is complying with that portion of the Department of Health’s
Emergency Rule 64DER21-15, that continues to give parents or legal guardians the sole
discretion to opt a student out from a mask or face covering mandate.

As I have done before, if you fail to document full compliance, I intend to recommend to the
State Board of Education that the Department of Education withhold funds in an amount equal to
the salaries for all members of the School Board, as well as other sanctions authorized by law,
for the period during which the district has been out of compliance.

Thank you for your prompt attention to this important matter.

Sincerely,

Richard Corcoran
Commissioner
EXHIBIT G
 Dr. Diana Greene
Superintendent

1701 Prudential Drive | Jacksonville, FL 32207

904.390.2115 | Fax 904.390.2586
GreeneD@duvalschools.org | www.duvalschools.org

September 24, 2021

Commissioner Richard Corcoran

Florida Department of Education
325 W. Gaines St.
Tallahassee, FL 32399-0400

Dear Commissioner Corcoran,

This letter is in response to your September 23, 2021, demand for a written response
documenting how the Duval County School Board (“DCSB”) is complying with Florida
Department of Health Emergency Rule 64DER21-15.

The DCSB first received your letter containing the demand the afternoon of
Thursday, September 23, 2021. By the time all seven board members had read the letter,
there were less than 24 hours to respond. For the reasons set forth below, the DCSB
respectfully needs until Thursday, September 30, to respond to your letter.

Any decision made by this Board must comply with section 286.011, Florida
Statutes. Compliance with the Sunshine Law would be most difficult to achieve today,
given several of the DCSB members are currently attending an FSBA Certified Board
Member Forum on Policy Governance in Kissimmee, Florida. To ensure compliance as
well as a timely response, the DCSB has scheduled a special meeting on September 28,
2021, to discuss, among other issues, the new DOH Rule as well as a response to your
letter. The Superintendent and Board members value additional time to consider and
make decisions on these incredibly important issues.

Sincerely,

Dr. Diana L. Greene Board Chair Elizabeth Andersen

EXHIBIT H
 Dr. Diana Greene
Superintendent

1701 Prudential Drive | Jacksonville, FL 32207

904.390.2115 | Fax 904.390.2586
GreeneD@duvalschools.org | www.duvalschools.org

September 30, 2021

Commissioner Richard Corcoran

Florida Department of Education
325 W. Gaines St.
Tallahassee, FL 32399-0400

Dear Commissioner Corcoran,

This letter is in response to your September 23, 2021, demand for a written response
documenting how the Duval County School Board (“DCSB”) is complying with Florida
Department of Health Emergency Rule 64DER21-15.

The DCSB first received your letter containing the demand the afternoon of
Thursday, September 23, 2021. By the time all seven board members had read the letter,
there were less than 24 hours to respond, and several Board members were out of town
receiving Board training. The DCSB respectfully requested until today to allow our Board
to discuss the new DOH rule, in full compliance with the Sunshine Law. This discussion
occurred on September 28, 2021.

For purposes of background information, the DCSB first implemented a mask

policy requiring that masks be worn in July 2020, which continued until the end of the
2020-2021 school year. Prior to the issuance of Florida Department of Health Emergency
Rule 64DER21-12, the DCSB considered the mask policy for the 2021-2022 school year
on August 3, 2021. Since school had not yet started, the DCSB implemented a mask
policy that it felt would sufficiently balance the safety of students with parents’ ability to
opt students out of wearing masks. The policy strongly encouraged students to wear
masks during the school day but also allowed for students to opt out of wearing a mask at
the sole discretion of their parent/guardian. However, once school started on August 10,
2021, additional facts and evidence came to light such that it became clear that the policy
in effect was not successfully protecting staff and students. It was then decided to revisit
the mask policy at the Board’s August 23, 2021, meeting.

At the August 23, 2021 meeting, the DCSB enacted its Emergency Rule requiring
all students to wear masks, but also provided for a method by which parents could opt
students out of wearing a mask with a medical certification from a licensed health care
provider certifying that the student has a medical, physical, or psychological condition
that prevents the student from being able to safely wear a face covering. The policy came
about as a result of over 800 COVID-19 cases within the District after the first ten days
of school. This number represented over 30% of total cases from the entire 2020-2021
school year. After three weeks of school, there were over 1600 COVID-19 cases in the
District which represented 65% of the total cases from last year. The DCSB’s policy
decision was also based upon the fact that the Duval County Health Department was
unable to complete contact tracing on all of the positive cases arising in the District. As
of August 23, 2021, the DCHD had only been able to close out 106 of the 895 cases
(closed out cases are those where the Duval County Health Department is able to complete
contract tracing to ensure students and staff who have been exposed to COVID-19 are
properly notified of their exposure).

In a further effort to take reasonable and necessary actions narrowly tailored to

further a compelling government interest, the DCSB also provided sufficient lead time for
parents and guardians to obtain an opt-out before the mask policy went into effect. The
mask policy was approved by the DCSB on August 23, 2021, but did not go into effect
until September 7, 2021. This provided parents and guardians two weeks to obtain the
medical certification opt out if appropriate. In addition, the policy was the result of
emergency rule-making, and therefore was only in effect for a maximum of ninety (90)
days. Further, language was included to allow the Superintendent to automatically
suspend the policy without Board approval should certain health data points be met.
These data points were determined in consultation with the Florida Department of Health
and local physicians based on transmission rate in the community and were presented by
the Superintendent to the Board for approval on September 7, 2021. The data points
provided that the emergency mask policy would be suspended when Duval County’s
rolling seven-day positivity rate declines to 7.99% or less and the rolling seven-day new
case count per 100,000 people, declines to 49.99 or fewer.

Just today, the District was provided with preliminary information from the Duval
County Health Department, that by tomorrow, October 1, it is expected that confirmed
data will establish that Duval County has met the above criteria, allowing for automatic
suspension of the emergency mask policy in effect. As a result, it is expected that as of
October 4, 2021, the Superintendent will have suspended the emergency mask policy, and
pursuant to Board policy, will exercise emergency authority granted to her under Board
policy to reinstate the Board’s prior policy language stating that masks are strongly
encouraged and providing for an opt out at the parent/guardian’s sole discretion. At the
earliest opportunity, which will be October 5, the Superintendent will recommend to the
Board that the same policy language be reinstated by the Board temporarily until such

EVERY SCHOOL. EVERY CLASSROOM. EVERY STUDENT. EVERY DAY.

time that a more permanent communicable disease policy is approved, which is expected
to be in late October or early November.

In regard to quarantine protocols, the District has and will continue to follow the
guidance of the Duval County Health Department, which currently align with those set
forth in Florida Department of Health Emergency Rule 64DER21-15. This is not a
statement, however, that the District agrees with such practices or has deemed them
sufficient for ensuring the health of students and staff.

DCSB has taken every effort to allow for children to continue in-person education
in a manner that protects the health of students and staff. The DCSB is pleased with the
news received only today, that according to our local health expert, Duval County’s
transmission rates are such the children can be safely educated in person with a policy in
place that strongly encourages masks, while also providing for a parent/guardian of the
student to opt the student out of wearing a mask at the parent or legal guardian’s sole
discretion.

Sincerely,

Dr. Diana L. Greene Board Chair Elizabeth Andersen

EVERY SCHOOL. EVERY CLASSROOM. EVERY STUDENT. EVERY DAY.

EXHIBIT I