Can a Florida school board refuse to follow a state law or Department of Health emergency rule it thinks is invalid, like the 2021 parental mask opt-out rule?

Plain-English summary

In September 2021, the Suwannee County School District asked the Attorney General whether it could disregard the Florida Department of Health's emergency rule (Rule 64DER21-12) requiring school districts to allow parents to opt out of mask mandates, the Parents' Bill of Rights (sections 1014.01-1014.06), and Executive Order 21-175. The district's argument: Article IX, Section 4(b) of the Florida Constitution gives school boards the power to "operate, control and supervise" all public schools in their districts, and the district believed the legal authorities were invalid.

The AG said no. The constitutional grant of school-board operating authority sits within a hierarchy. Article IX, Section 1(a) gives the Legislature power to "provide by law for a uniform, efficient, safe, secure, and high quality system of free public schools." Florida's educational system is a "cooperative function" of state and local authorities. School boards exercise authority subject to state law, not above it.

The district's request said it was aware of other boards with policies that appeared contrary to the legal authorities at issue. The AG concluded that Suwannee County had to comply with Rule 64DER21-12 and other applicable authorities unless and until the judiciary declared them invalid. The opinion also noted that an automatic stay during an appeal can keep the compliance rule in force after a trial court's invalidity ruling, unless a court vacates the stay.

The opinion did not decide whether the underlying rule, statute, or executive order was actually valid. It said only that the district could not unilaterally treat them as invalid.

What this means for you

If you sit on a Florida school board

The AG said a board must comply with applicable statutes and regulations while a challenge to their validity is pending. The opinion does not decide whether the mask rule itself was valid or specify sanctions for disobedience. Ask district counsel to assess the applicable authority and any court orders, including a stay during appeal.

If you are a parent

The opinion says a district must follow an applicable rule until judicial action relieves it of that obligation. It does not decide the rule's validity or a parent's individual rights under it. The footnote also says the opinion does not change a district's federal duties to accommodate disabled students.

If you are a school district attorney

The opinion reads Article IX, Section 4(b) school-board authority together with Article IX, Section 1(a) legislative authority. It says the board must comply with applicable statutes and regulations unless and until the judiciary declares them invalid. Its discussion of an automatic stay on appeal matters when evaluating whether a trial court ruling has changed the board's duty.

If you are at the Department of Education or another state agency

The opinion addresses the school district's duty to comply pending judicial review. It does not discuss what enforcement steps a state agency may take against a district.

Background and statutory framework

Article IX, Section 4(b) of the Florida Constitution states that local school boards "shall operate, control and supervise all free public schools within the school district." That phrase has long been read to grant substantial day-to-day operating authority to elected school boards. But it does not stand alone.

Article IX, Section 1(a) of the Florida Constitution makes it "a paramount duty of the state to make adequate provision for the education of all children residing within its borders" and authorizes the Legislature to "provide by law for a uniform, efficient, safe, secure, and high quality system of free public schools." Florida courts have characterized the resulting framework as a cooperative function: state law sets the framework, and local boards operate within it.

The 2021 context: The Florida Department of Health adopted Rule 64DER21-12 requiring school districts to allow parents to opt out of mask requirements. The letter also mentions the Parents' Bill of Rights and Executive Order 21-175. Suwannee County had made masks optional, but its request reported dissent within the community and awareness of other boards' potentially contrary policies.

The AG relied on the relationship between school-board operating authority and the Legislature's authority over public schools. The cited decisions required public officials to obey applicable statutes and regulations until judicial review resolved their validity.

Common questions

Did the AG decide whether the parental mask opt-out rule was actually valid?
No. The opinion expressly addressed only the question of whether districts could refuse to follow the rule pending judicial review. It did not opine on the rule's validity.

What if the school board members believe the rule is unconstitutional?
The opinion says the board must comply with applicable statutes and regulations until the judiciary declares them invalid. It does not advise this district on standing or a particular litigation procedure.

Does this apply to other state agency rules besides Department of Health emergency rules?
The reasoning is general. Any validly promulgated state rule applicable to school districts triggers the compliance obligation. The opinion's language ("statutes and regulations") is broad.

What happens to a district that refuses to comply?
The opinion does not address enforcement actions, funding consequences, or personal liability. Its answer concerns the district's duty to comply while the legal authorities remain in effect.

Does this opinion still control today?
The letter states a general compliance principle, but it applies it to a 2021 emergency rule. Check current statutes, rules, and court orders before relying on it for a present dispute.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/school-boards-effect-of-statutes-and-regulations1310
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1456

Original opinion text

Leonard J. Dietzen, III

Board Attorney

Suwannee County School District

1740 Ohio Avenue, South

Live Oak, FL 32064

Dear Mr. Dietzen,

This office has received your inquiry on behalf of the Suwannee County School District (the “District”), asking substantially the following question:

Whether Article IX, Section 4(b) of the Florida Constitution authorizes a school board to depart from (1) state law, or (2) emergency rules handed down by the Florida Department of Health dealing with communicable diseases, if that school board believes the laws or rules are invalid.

In sum:

The District must comply with applicable statutes and regulations unless and until the judiciary declares them invalid.

Background Facts

In your submittal letter, you explain that the Florida Department of Health has, by emergency rule, required that parents be able to op-out of mask requirements in public schools, see R. 64DER21-12, consistent with the Parents’ Bill of Rights, codified in Sections 1014.01–06, Florida Statutes, and Executive Order 21-175. You indicate that the District has made the wearing of masks by students while in school optional, but that “the Suwannee County community is not unanimous,” that “there has been some dissent,” and that you are “aware of multiple school boards that have implemented policies that would appear to take positions that may be contrary to these legal authorities.” You therefore inquire whether the District “must follow Florida law as written,” or whether it can “selectively enforce it” if the District believes the relevant legal authorities are invalid. Notably, while you say that there is pending litigation regarding the validity of the underlying legal authorities, there does not appear to be pending litigation on the question whether school districts must comply with those authorities pending such litigation.

Analysis

Article IX, Section 4(b) of the Florida Constitution authorizes local school boards to “operate, control and supervise all free public schools within the school district.” Art. IX, § 4(b), Fla. Const. This authority is subject to several limits. As relevant here, it is subject to the Legislature’s power to provide “by law for a uniform, efficient, safe, secure, and high quality system of free public schools.” Id. § 1(a). Florida courts have described Florida’s educational system as “a cooperative function of the state and local educational authorities” in which “[a]ll actions of district school officials [must] be consistent and in harmony with state laws.” Sch. Bd. of Collier Cnty. v. Fla. Dep’t of Educ., 279 So. 3d 281, 285 (Fla. 1st DCA 2019) (quotations omitted).

Pursuant to its authority to legislate regarding public schools—especially school safety—the Florida Legislature has authorized the Department of Health to issue rules governing “the control of preventable communicable diseases” in schools. § 1003.22(3), Fla. Stat. Rule 64DER21-12 invokes that statute and says that schools “must allow for a parent or legal guardian,” on behalf of a child, “to opt-out” of mask requirements. See R. 64DER21-12(1)(d).

Under Florida law, “public officials are obligated to obey the legislature’s duly enacted statute until the judiciary passes on its constitutionality.” Sch. Dist. of Escambia Cnty. v. Santa Rosa Dunes Owners Ass’n, 274 So. 3d 492, 494 (Fla. 1st DCA 2019). This principle applies not only to statutes, but to “regulations” that an official has “a clear statutory duty to comply with.” Dep’t of Revenue v. Markham, 396 So. 2d 1120, 1121 (Fla. 1981); accord Graham v. Swift, 480 So. 2d 124, 125 (Fla. 3d DCA 1985). And while the specific result in Markham—that a local property appraiser lacks standing to sue the Department of Revenue to invalidate a tax regulation, 396 So. 2d at 1121—was superseded by statute, see § 195.092, Fla. Stat., the general rule in Markham remains good law. See Dep’t of Transp. v. Miami-Dade Cnty. Expressway Auth., 316 So. 3d 388, 390–91 (Fla. 1st DCA 2021); Santa Rosa Dunes Owners Ass’n, 274 So. 3d at 494. Further, if a trial court declares any of these authorities invalid, the defendants would still be bound by the Markham rule pending appeal pursuant to the automatic stay provision of Florida Rule of Appellate Procedure 9.310(b)(2), unless a court vacates that stay. See Fla. Dep’t of Health v. People United for Med. Marijuana, 250 So. 3d 825, 828 (Fla. 1st DCA 2018).

Conclusion

Based on the foregoing, it is my opinion that the District must comply with Rule 64DER21-12 and any other applicable authorities unless and until the judiciary declares them invalid.1

Sincerely,

Ashley Moody

Attorney General
__________
1 Neither this opinion, nor any of the authorities discussed herein, should be viewed as modifying a school district’s responsibility under federal law to provide a free appropriate public education or otherwise accommodate a disabled student. School districts should continue to handle accommodation requests and determine disabilities in accordance with existing procedures on a case-by-case basis. It is beyond this opinion to comment on how COVID-19, with its widespread prevalence and its now endemic nature in the United States, could constitute a “disability” or lead to a “disability” under federal law. There would, however, seemingly be easy accommodations far short of requiring every student to be masked to comply with federal law