By Nathan Hale

Law360 (July 20, 2020, 9:44 PM EDT) -- Florida's largest teachers union sued the governor, state education officials and Miami-Dade County's mayor on Monday in a bid to prevent the "reckless and unsafe" reopening of schools next month with COVID-19 spreading out of control in the state.

The Florida Education Association, which represents more than 140,000 school employees, including teachers, psychologists, nurses, custodians, food service workers and others, was joined by several individual educators and parents in filing the suit in state court in Miami.

The plaintiffs contend that the Florida Constitution requires public schools' on-site operations be conducted in a safe and secure manner, but the defendants — Gov. Ron DeSantis, the Florida Department of Education under the leadership of Education Commissioner Richard Corcoran and the state Board of Education, and County Mayor Carlos Gimenez — have infringed on this mandate in their handling of the health crisis.

"Gov. DeSantis needs a reality check, and we are attempting to provide one," FEA President Fedrick Ingram said in a statement. "The governor needs to accept the reality of the situation here in Florida, where the virus is surging out of control. He needs to accept the evolving science."

The state has become the global epicenter of the coronavirus pandemic in recent weeks, with Miami-Dade  hit the hardest of the state's 67 counties, according to the complaint. On Monday, the state Department of Health confirmed 10,347 new cases of COVID-19, bringing the state's total to 360,394 reported cases. The state also reported 90 new Florida resident deaths, pushing the total to 5,072.

"Everyone wants schools to reopen, but we don't want to begin in-person teaching, face an explosion of cases and sickness, then be forced to return to distance learning," Ingram said. "Florida's Constitution demands that public schools be safe. Teachers and parents want our schools to meet that basic standard."

The five individual plaintiffs are teachers from Miami-Dade, Broward and Orange counties and the parents of two Pinellas County students. Stefanie Beth Miller, who teaches second grade in Broward County, spent two months in the hospital, including 21 days on a ventilator in a coma with COVID-19. Mindy Festge, an educator whose husband is also a longtime Miami-Dade public school teacher, has a son in high school who has a compromised immune system.

Their suit comes largely in response to an emergency order that Corcoran, the education commissioner, issued on July 6 that stated that public and charters 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, and that 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."

School districts have been ordered to submit reopening plans to the state, reportedly in a process that promises beneficial treatment for reopening, even when it is not safe.

The complaint describes the top-down order as "startling," arguing that it disregards recommendations from the U.S. Centers of Disease Control and Prevention, which the Department of Education referenced in an earlier reopening plan that said "reopening is a locally driven decision."

The complaint also quotes from a March 13 state emergency order that said, "Promoting the health and safety of each person connected with the state's education system is of paramount importance."

The multicount suit seeks a court declaration that Corcoran's reopening order and threatened actions to enforce it violate the Florida 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 that have suggested the order is not mandatory or allows for local discretion are arbitrary and capricious.

The FEA is also seeking an injunction barring DeSantis, Corcoran and Gimenez from forcing millions of students and educators to report to unsafe schools and also requiring the officials to implement a meaningful online instruction plan, ensure that schools have sufficient personal protective equipment and other supplies, and that social distancing and other preventative measures are in place before physical schools reopen.

In a statement provided by the Department of Education, Corcoran said his July 6 order does not impose any changes to existing state law, which mandates that schools be open for the equivalent of five days a week for 36 weeks, gives families more options, and guarantees funding for school districts to innovate.

"Clearly the FEA hasn't read nor understands the Florida Department of Education's guidance, the Emergency Order No. 2020-EO-06, or Florida law," Corcoran said. "This E.O. did not order any new directives regarding the requirements of schools to be open, it simply created new innovative options for families to have the choice to decide what works best for the health and safety of their student and family."

A representative from the governor's office directed an inquiry to the Department of Education. Gimenez's office said the county and mayor do not usually comment on pending litigation and had no comment at this time.

The plaintiffs are represented by Kendall Coffey and Josefina M. Aguila 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.

Counsel information for the defendants was not immediately available.

The case is Florida Education Association et al. v. DeSantis et al., case number 2020-015211-CA-01, in the Circuit Court for the Eleventh Judicial Circuit of Florida.

--Editing by Bruce Goldman.

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