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 opinion was issued at the height of the COVID-19 mask debate in Florida, when several school districts had publicly defied the state's parental opt-out rule. The Attorney General's message was direct: until and unless a court strikes down the law or rule, the school board has to comply, even if the board believes the authority is unconstitutional. Self-help nullification is not an option.

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

Compliance is not optional based on your assessment of legality. If you think a state law or Department of Health rule is invalid, the right path is to (1) comply pending litigation, (2) join or support a court challenge, and (3) seek a declaratory judgment or injunction. Refusing to comply exposes the board to enforcement actions, withholding of state funds, and potential personal liability of board members.

If you are a parent

The opinion confirms that, while a particular state rule is on the books, the school board must follow it. If you disagree with the rule, the proper channel is to challenge it in court, lobby the Legislature, or vote in school board elections. Pressuring the board to defy the rule asks the board to act outside its constitutional role.

If you are a school district attorney

This opinion is a useful citation when the board is considering a defiance posture. The chain is: Article IX, Section 4(b) authority is subject to Article IX, Section 1(a) legislative authority; rules validly promulgated under that legislative authority bind school districts; only the courts can declare them invalid. If the board wants to push back legally, it should sue, not unilaterally suspend.

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

The opinion supports state enforcement against non-compliant districts without first having to obtain a judicial declaration of validity. The presumption is in favor of compliance.

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 mandates. The rule operated alongside the Parents' Bill of Rights, codified at sections 1014.01-1014.06, Florida Statutes, and Executive Order 21-175. Several school districts publicly refused to comply or imposed mask mandates without an opt-out provision. The Suwannee County District, which had made masks optional, asked the AG to clarify whether districts that wished to defy the rule could do so.

The AG's answer drew on standard separation-of-powers reasoning. School districts are creatures of state law. Their constitutional operating authority does not include a power to unilaterally invalidate state law. That power belongs to the courts.

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 still requires compliance. The remedy is to file a lawsuit seeking a declaration of invalidity, not to ignore the rule.

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 consequences. As a practical matter, the State Board of Education has authority to act against non-compliant districts, including by withholding state funds. Individual board members could also face removal proceedings under Florida law.

Does this opinion still control today?
The legal principle (compliance pending judicial review) is not COVID-specific. It continues to apply to any disagreement between a school district and a state law or rule. The specific factual context (the 2021 mask-rule fight) has been substantially resolved by subsequent rulings and legislation.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/school-boards-effect-of-statutes-and-regulations1310
• Original PDF: 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