By Carolina Bolado

Law360 (August 14, 2020, 4:17 PM EDT ) A Florida judge declined Friday to dismiss a suit by the state's largest teachers' union challenging the planned reopening of schools despite uncontrolled spread of the novel coronavirus, but urged the union and the state to hash out their differences and come to an agreement.

In a video hearing, Judge Charles Dodson said that at this early point in the litigation, he had to take the Florida Education Association's allegations against the governor and the education commissioner as true, so he would not dismiss the suit now. But he told the parties to use the next few days before a scheduled hearing on Wednesday to try to settle the suit.

"This is a case that cries out for the parties to get together at this mediation and come up with an agreement," the judge said. "Between the governor and the education commissioner and the plaintiffs, I'm confident that if y'all work really hard you can do that. It's a case that really needs that very badly."

At the hearing, David M. Wells of Gunster, representing the state, defended Executive Order 6, which was issued on July 6 by education commissioner Richard Corcoran. The order states that public and charter schools must open school buildings in August at least five days per week, subject to the advice and orders of state and local health departments. The schools must provide the "full array of services required by law so that families who wish to educate their children in a brick and mortar school full time have the opportunity to do so," according to the executive order.

School districts have been ordered to submit reopening plans to the state. Those that opt for an online-only format risk losing funding.

Wells told Judge Dodson that the FEA is essentially asking the judge to "step into the role of the commissioner" and decide the political question of how, or whether, to open schools safely in a pandemic. The separation of powers doctrine dictates that the court cannot do that, he said.

"I can't think of a greater political question or a greater policy issue than how one goes about doing that," Wells said. "You're being asked to decide whether or not what the schools are doing is safe."

Ronald G. Meyer of Meyer Brooks Blohm & Hearn PA, who represents the FEA, argued that the plaintiffs are not asking the court to encroach on the power of the legislature or the executive branch to take over the operation of public schools or direct funding. He said the problem is that the executive order is arbitrary and therefore unconstitutional.

"What we have here is an executive order that basically says you only get funding if you do it my way," Meyer said. "We think that's arbitrary and capricious."

The union, which represents more than 140,000 school employees — including teachers, psychologists, nurses, custodians, food service workers and others — filed suit in Miami on July 20 along with several individual educators and parents. The suit was transferred to Tallahassee earlier this month.

The plaintiffs contend that the Florida Constitution requires public schools' on-site operations to be conducted safely and securely, but the defendants — Corcoran, Gov. Ron DeSantis and the Florida Department of Education — have infringed on this mandate in their handling of the health crisis. The state has become the global epicenter of the coronavirus pandemic in recent weeks.

The multicount suit seeks a court declaration that Corcoran's reopening order and threatened actions to enforce it violate the state constitution's mandate for safe and secure in-person schooling, as well as a declaration that the order and subsequent statements by Corcoran and DeSantis suggesting the order is not mandatory or allows for local discretion are arbitrary and capricious.

The plaintiffs are represented by Kendall Coffey, Josefina M. Aguila and Scott A. Hiaasen of Coffey Burlington PL, Ronald G. Meyer of Meyer Brooks Blohm & Hearn PA, Kimberly C. Menchion of the Florida Education Association and Lucia Piva, Mark Richard and Kathleen M. Phillips of Phillips Richard & Rind PA.

The governor and state entities are represented by Jonathan H. Kaskel, Angel A. Cortiñas and David M. Wells of Gunster.

The case is Florida Education Association et al. v. DeSantis et al., case number 2020-CA-1450, in the Second Judicial Circuit Court of Florida.

--Additional reporting by Nathan Hale. Editing by Haylee Pearl.

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