Judge Denies Request To Close Palm Beach County Schools
Judge Denies Request To Close Palm Beach County Schools
Judge Denies Request To Close Palm Beach County Schools
MANUEL LEVINE,
EVAN CARUSO,
CAROL DELONG,
et al.,
Plaintiff/Petitioners
vs.
SCHOOL DISTRICT OF PALM BEACH COUNTY,
Defendant/Respondent.
_______________________________/
THIS CAUSE came before the Court on Plaintiffs’, Manuel Levine, Evan Caruso1, Carol
DeLong, Sandra Ellen, Annette Levine, Steven Silberberg, Daniel Hepworth, and Greg Launel,
Emergency Amended Motion for Temporary Injunctive Relief (D.E. #7) filed on September 20,
2020, pursuant to Florida Rule of Civil Procedure 1.610. The Defendant, The School District of
Palm Beach County (the “School District”) filed its Response on September 22, 2020. An
evidentiary hearing was held on September 23, 2020. Having carefully considered Plaintiffs’
Motion, the School District’s Response, the evidence and testimony presented during the
hearing, and the applicable law, and being otherwise fully advised in the premises, the Court
finds as follows:
1 Plaintiff Evan
Caruso was voluntarily dismissed from this case at the beginning of the hearing
on September 23, 2020.
FACTUAL AND PROCEDURAL BACKGROUND.
Due to the pandemic caused by the spread of COVID-19, many functions of government,
including public education, have been significantly impacted and disrupted. As a result, public
schools in Palm Beach County ended the 2019-2020 school year and began the 2020-20201
school year on an entirely remote learning basis. On July 6, 2020, the Florida Commissioner of
Education issued Emergency Order 2020-EO-06 requiring state school districts to develop plans
At the time the Emergency Order issued, Palm Beach, Broward and Miami-Dade
Counties, where the pandemic has been most prominent, were still under Phase 1 of the
Governor’s Recovery Plan. Accordingly, the School District developed a school reopening plan
that maintained remote learning, exclusively, while the County remained in Phase 1 status. That
plan also called for re-opening of schools upon the County’s entry into Phase 2 of the Governor’s
Recovery Plan, giving parents the option to either send their children to the schools or continue
remote learning. See 2020-21 Florida’s Optional Innovative Reopening Plan, School District of
ReopenPlan.pdf. Palm Beach County moved to Phase 2 status of the Governor’s Reopening Plan
on September 7, 2020, thereby triggering the reopening of the School District’s schools on
The School District instructed that employees who were not granted a remote work
exemption must be present in person at their schools as of September 21, 2020. (Complaint, ¶
2). Each Plaintiff challenges this directive based on their respective individual circumstances as
outlined below:
2
Greg Launel teaches at Jupiter Middle School. He alleges that due to an
COVID-19 virus.
Carol DeLong is an employee of the School District who alleges that she was
rated “category 2,” indicating a high risk for contracting and dying from COVID-
19.
Sandra Ellen is a teacher employed by the School District who alleges that her
husband has a high risk of contracting and dying from COVID-19. She alleges
that she was denied exemption from in-person teaching because she did not timely
file her application due to a delay in obtaining a physician’s note regarding her
claims that due to his age and health conditions he believed that he would be
Annette Levine, apparently a School District employee, claims that due to her
Steven Silverberg is an employee who is 68 years old and works at Glades Central
High School. He alleges that the School District stated that employees over age
65 would be exempt from in-person attendance, but he claims that his application
for exemption was denied. He alleges that he is not in good health and that his
3
Daniel Hepworth is married to a teacher who works at Barton Elementary School
in Lake Worth. He alleges that his wife was classified as “category 2” but was
Plaintiffs assert that the School District’s requirement that personnel return to in-person
presence at the facilities to which they are assigned violates the Florida Constitution. First, they
claim that the School District’s conduct violates article XI, section 1(a), which provides that
“[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality
system of free public schools that allows students to obtain a high quality education.”
(Complaint, ¶ 35.) Second, they assert that the School District’s conduct violates due process as
guaranteed by article I, section 9. (Complaint, ¶ 44.) Based on the foregoing, Plaintiffs seek the
a) Maintains the “status quo” by permitting the Plaintiffs and all teachers in Palm Beach
b) Enjoins Defendant from requiring Plaintiffs and others who are employed by the School
c) Enjoins the District from requiring Plaintiffs and others from returning to schools until
d) Requires Defendant to design and implement policies and procedures to ensure that
schools are safe and the guidelines of the CDC and other health care professionals are
met prior to requiring Plaintiffs and others to return to the schools; and
e) Prohibits the reopening of schools until each school has adequate protective equipment
4
(Complaint, Prayer for Relief.)
Plaintiffs filed their complaint on September 18, 2020 and moved for an ex parte
“emergency” temporary restraining order. (Motion for Temporary Emergency Injunctive Relief,
D.E. #3.) The Court denied that motion and ordered Plaintiffs to effect service of the motion on
the School District and set the motion for hearing. (Order, Sept. 18, 2020, D.E. # 3.)
To obtain a temporary injunction, the movant must establish (1) a substantial likelihood
of success on the merits, (2) a lack of an adequate remedy at law, (3) the likelihood of irreparable
harm absent the entry of an injunction, and (4) that injunctive relief will serve the public interest.
Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258 (Fla. 2017). “The movant must
prove each element with competent, substantial evidence.” State, Dep’t of Health v. Bayfront
HMA Med. Ctr., LLC, 236 So. 3d 466, 472 (Fla. 1st DCA 2018). If the movant fails to prove one
only after the moving party has alleged and proved facts entitling it to relief.” Hiles v. Auto
Bahn Fed’n, Inc., 498 So. 2d 997, 998 (Fla. 4th DCA 1986). See also Bautista REO U.S., LLC v.
ARR Inves., Inc., 229 So. 3d 362, 365 (Fla. 4th DCA 2017); Gooding v. Gooding, 602 So. 2d
615, 616 (Fla. 4th DCA 1992); Tri-Plaza Corp. v. Field, 382 So. 2d 330, 331 (Fla. 4th DCA
1980). “[R]elief should be awarded only in clear cases, reasonably free from doubt, and when
necessary to prevent great and irreparable injury. . . .” Sackett v. City of Coral Gables, 246 So.
5
Substantial Likelihood of Success on the Merits
Plaintiffs challenge the School District’s decision to mandate teachers provide in-person
instruction on two constitutional grounds. The Court finds that Plaintiffs do not have a
Violation of Right to “Safe and Secure” System of Free Public Schools (Art. IX, § 1(a),
Fla. Const.)
(emphasis added). Plaintiffs challenge the portion of this provision mandating that public
schools be “safe.” In essence, Plaintiffs claim that the School District’s requirement that its
personnel now be present in person and on-site at their assigned facilities is not “safe” within the
The question is not lightly posed and nor should it be lightly disregarded. In these
unprecedented times, the School District has asked its employees to continue their vital work
educating the County’s children in circumstances which could, for some, result in serious health
associated with COVID-19 and the corresponding necessity to ensure protective protocols and
procedures. However, the Court is bound to find that Plaintiffs do not have a likelihood of
2 Because the Plaintiffs cannot not establish a substantial likelihood of success, the Court will not
address the remaining elements necessary for the issuance of a temporary injunction.
6
success on the merits in their action for injunctive relief based on several aspects of controlling
law.
First, article IX, section 1(a) does not establish a private cause of action in favor of
individuals against the School District. See Sch. Bd. of Miami-Dade Cnty. v. King, 940 So. 2d
593, 603 (Fla. 1st DCA 2006); Simon v. Celebration Co., 883 So. 2d 826, 831 (Fla. 5th DCA
2004). In fact, the existence of a private cause of action for alleged violation of article IX,
section 1(a) was denied as to the Palm Beach County School Board by then Circuit Judge
Jonathan Gerber in Order Granting Plaintiff’s Motion for Final Order of Dismissal and
Dismissing With Prejudice, Schroeder v. Palm Beach County School Board, No. 50-2008-CA-
007579 (Fla. 15th Cir. Ct. July 28, 2008). Judge Gerber’s order was subsequently affirmed by
the Fourth District Court of Appeal in Schroeder v. Palm Beach County School Board, 10 So. 3d
1134 (Fla. 4th DCA 2009). Schroeder is directly on point, and Plaintiffs have presented no
Second, the Florida Supreme Court has clearly prohibited the judiciary from using broad
allegations of violation of article IX, section 1(a) as a pretext to litigate the adequacy of the
public school system. See Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680
So. 2d 400, 408 (Fla. 1996) (upholding dismissal of a blanket challenge to the “adequacy” of the
entire K-12 system); Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 142
(Fla. 2019) (rejecting use of article IX, section 1 challenges as basis for courts to inject
themselves into education policy making and oversight and affirming Coalition’s rationale under
the current Florida Constitution). The Court simply cannot, and should not, determine the
wisdom of public policy. See Burnett v. Greene, 122 So. 570, 576 (Fla. 1929) (the court’s
“purpose and sole function is to administer exact justice, as nearly as may be, to all parties before
7
it, not to determine the wisdom of a public measure designed to promote the ‘public health,
convenience or welfare’”); see also Lowe v. Broward Cnty., 766 So. 2d 1199, 1206 (Fla. 4th
DCA 2000) (“The Act is a political decision by an elected body. Its wisdom is more properly
addressed at the ballot box and not by a court as a matter of constitutional principle.”).
Plaintiffs rely heavily on an order from the Circuit Court for the Second Judicial Circuit
enjoining the State from enforcing a portion of the Commissioner of Education’s Emergency
Order 2020-EO-06. Order Granting Motion for Temporary Injunction, Fla. Educ. Ass’n v.
DeSantis, Nos. 2020-CA-001450 and 2020-CA0001467 (Fla. 2d Cir. Ct Aug. 24, 2020) (“the
Leon County Order”). The Leon County Order is both instructive and distinguishable.
In the Leon County case, the plaintiffs challenged the Emergency Order because it did
not allow individual school districts to formulate and tailor their own plans to their own
particular circumstances and needs, and it also conditioned State funding upon each school
district’s compliance with the Emergency Order. Id. at 3. The court determined that because the
Emergency Order did not permit the school districts to take into account the circumstances
associated with the pandemic that might affect the best means of providing education, the
Emergency Order was prone to an ultimate determination that it was arbitrary and capricious. Id.
at 7–12.
Significantly, in the Leon County Order, the court recognized that local school boards
and authorities are best equipped to, and indeed are charged with, making decisions based upon
their unique local conditions and needs. As stated by Judge Dodson, “[a]n injunction in this case
will allow local school boards to make safety determinations for the reopening of schools
without financial penalty. This is what the local school boards were elected to do. Every
8
witness testified that any decision to reopen schools should be based on local conditions.” Id. at
Consistent with Judge Dodson’s order, the School District, through its board, made its
own decisions and determinations on how best to reopen its schools and provide education,
including the option of remote learning. Simply put, the Court cannot, and should not, substitute
its judgment for that of the duly elected School District and its board. See State Road Dep’t v.
Newhall Drainage Dist., 54 So. 2d 48, 50 (Fla. 1951) (“a court of equity will not ordinarily
substitute its judgment for that of an administrative board when acting within the scope of its
The DeSantis case is also instructive because it demonstrates why the Plaintiffs’ reliance
on article IX, section 1(a) is misplaced. The First District Court of Appeal recently reversed
Judge Dodson’s order vacating a stay of the temporary injunction. In so doing, the District Court
found that the State had a a substantial likelihood of success on the merits of its appeal because,
inter alia, injunctive relief based on article IX, section 1(a) was not available.
First, the State argues that the circuit court erred when it concluded that the
Emergency Order violated the State’s duty to provide “safe” and “secure” schools
under article IX of the Florida Constitution. The State is likely to prevail on this
argument. The terms “safe” and “secure” as used in article IX, section 1(a), and
construed in the context of a public health emergency appear, to “lack judicially
discoverable or manageable standards that would allow for meaningful judicial
interpretation.” See Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 232
So. 3d 1163, 1168 (Fla. 1st DCA 2017), aff’d, 262 So. 3d 127 (Fla. 2017). In a
similar context—an executive order addressing the COVID-19 pandemic—the
United States Supreme Court held that policy choices for the “safety and health of
the people” are principally entrusted “to the politically accountable officials of the
States ‘to guard and protect’” and should not “be subject to second-guessing” by
the courts. See S. Bay United Pentecostal Church v. Newsome, 140 S. Ct. 1613,
1613–14 (2020) (Roberts, C.J., concurring) (quoting Jacobson v. Massachusetts,
197 U.S. 11, 38 (1905)).
9
Order on Emergency Motion to Reinstate Automatic Stay at 9, Ron DeSantis v. Fla. Educ. Ass’n,
No. 1D20-2470 (1st DCA Aug. 31, 2020). Plaintiffs rely here on the very same language in
article IX, section 1(a) to support their claim for injunctive relief – i.e. safe and secure schools.
As the First District makes clear, injunctive relief is inappropriate because the terms
“safe” and “secure” are not subject to “meaningful judicial interpretation.” The task of
vested with the School District through its elected board. Policy choices for safety and health
Third, even if the Court were permitted by law to find that the School Board’s
requirement that teachers conduct in-person learning violated article IX, section 1(a), Plaintiffs’
requested relief is overbroad. An injunction “may be no broader than necessary to restrain the
unlawful conduct” and should “constitute the least intrusive remedy that will be effective.”
Operation Rescue v. Women’s Health Center, Inc., 626 So. 2d 664, 670 (Fla. 1993)(quotations
omitted). In other words, an injunction “must be narrowly tailored to meet the issue in
controversy.” Pediatric Pavilion v. Agency for Health Care Admin., 883 So. 2d 927, 931 (Fla.
5th DCA 2004). See also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091 (Fla. 3d
DCA 2014) (“An injunction should never be broader than is necessary to secure to the injured
party relief warranted by the circumstances involved in the particular case.”); Angelino v. Santa
Barbara Enters., LLC, 2 So. 3d 1100, 1104 (Fla. 3d DCA 2009) (“Injunctions must be
specifically tailored to each case and they must not infringe upon conduct that does not produce
the harm sought to be avoided.”). Injunctions that are overbroad in application are erroneous and
may not be enforceable to the extent of their overbreadth. Goodell v. Goodell, 421 So. 2d 736
10
Here, while each Plaintiff pleads his or her own specific situation, collectively they leap
to the conclusion that all employees of the School District also are similarly situated, and thus
the appropriate relief should be a District-wide halt to all on-site, in-person instruction. In the
The Plaintiffs in this action have articulated uniquely personal circumstances for desiring to
perform their work remotely instead of in-person, on-site. However, those personal
circumstances cannot be converted or extended to the point of rendering the entire school system
as a whole unconstitutionally “unsafe” for all, particularly where the Supreme Court has made
clear that article IX, section 1 does not support such system-wide challenges. See Citizens for
Further, the sheer scope of Plaintiffs’ requested relief asks this Court to take on the role
of a “super-Board,” overruling and negating one of the most significant, county-wide decisions
the School District has likely ever made. Such a request runs contrary to controlling case law
based on both the separation of powers and the nature of the temporary injunction—an
Accordingly, the Court finds that Plaintiffs do not have a substantial likelihood of success
on the merits as to their claim that the School District violated article IX, section 1(a) of the
Article I, section 9 of the Florida Constitution provides that “[n]o person shall be
deprived of life, liberty or property without due process of law . . . .” The Court finds that
3 Granting the relief requested would compel 55,000 students to leave the classroom and resume
remote learning.
11
Plaintiffs also have not demonstrated a substantial likelihood of prevailing on the merits of their
due process claim. As the Court interprets this claim, Plaintiffs assert that the School District’s
return to learn plan, and particularly the requirements for employee presence in person and on
site at their assigned facilities, is “arbitrary and capricious” and, therefore, fails the rational basis
test applicable to substantive due process claims. Also, some of the Plaintiffs’ claims further
suggest that the School District has denied them procedural due process in its handling of their
fundamental right is at stake, the inquiry is whether the action serves a legitimate governmental
purpose and bears a rational relationship to the governmental objectives. E.g., Mebreno and Fla.
Ass’n of Vendors, Inc. v. City of Hialeah, 188 So. 3d 13, 19 (Fla. 3d DCA 2016) (citing Belk-
James, Inc. v. Nuzum, 358 So. 2d 174, 175 (Fla. 1978), and McKnight v. State, 769 So. 2d 1039,
1039 n. 1 (Fla. 2000)). It is a heavy burden—if there is any reasonable relationship between the
act and a valid governmental objective, it withstands scrutiny. Haire v. Fla. Dep’t of Ag. and
Consumer Servs., 870 So. 2d 774, 782 (Fla. 2004). That the effect of the governmental action is
“fairly debatable” will not suffice to overturn the action: “The fact that there may be differing
views as to the reasonableness of the [governmental body’s] action is simply not sufficient to
void the [action].” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1096 (Fla. 2005).
“Courts will not be concerned with whether the particular legislation in question is the most
prudent choice, or is a perfect panacea, to cure the ill or achieve the interest intended. If there is a
legitimate state interest that the legislation aims to effect, and if the legislation is a reasonably
related means to achieve the intended end, it will be upheld.” Jackson v. State, 191 So. 3d 423,
12
Here, Plaintiffs have not demonstrated that they can meet this high burden.
Unquestionably, Plaintiffs strongly disagree with the School District’s return to learn plan and
the requirement of staff to be on-site, in-person. Such disagreement, however, simply is not
enough to enjoin its implementation. The School District has a clearly valid governmental
objective in providing instruction to students in the most effective manner possible under these
circumstances, and its decision to re-open brick and mortar schools is rationally related to this
objective. Given the heavy burden they face under rational basis analysis, Plaintiffs have not
On the question of procedural due process, Plaintiffs allege the School District has
arbitrarily and capriciously provided exemptions to in-person instruction among its teachers
without any consideration of the health of the teacher. (Motion for Temporary Emergency
Injunctive Relief, ¶ 6). This claim appears to implicate only three of the Plaintiffs – Ms. Ellen,
Mr. Silverberg and indirectly, Mr. Hepworth. Only one of the Plaintiffs, Mr. Silverberg, testified
at the hearing.
The Plaintiffs have failed to establish that the procedure utilized by the School District
violated procedural due process. To make remote teaching an option, the School District created
a classification system. Applicants were then assigned a “class” depending on their individual
of remote positions based on the circumstances of the school. Such circumstances included the
number of students returning to the classrooms. While it is true that some schools simply could
not offer remote positions, this does not establish a violation of procedural due process.
13
CONCLUSION
The lynch pin of the Plaintiffs’ case is the proposition that teachers should be permitted
to work remotely and not in-person in light of safety concerns attendant to COVID-19.4 As a
matter of policy, the Plaintiffs’ position has merit. Placing high-risk individuals in a classroom
may not be good policy. However, courts do not intervene because a policy is alleged to be ill
The fact is that, in the employer/employee relationship between teachers and the School
District, there is no clear legal right to work remotely. The collective bargaining agreement
governing the relationship between classroom teachers and the School District does not provide a
impose such a requirement. While the School District may offer remote teaching to certain
individuals, this does not create a legal right for all to teach remotely. 5 Without a clear legal
The Court is not unsympathetic to the safety concerns demonstrated by the Plaintiffs.
Plaintiffs’ concerns are real, genuine and legitimate. Many teachers face the difficult choice of
refusing to comply with the directives of their employer, or risking exposure to COVID-19.
However, the issues raised in this case clearly demonstrate the difficult choices faced by policy-
makers locally, statewide and nationally in dealing with a national health crisis.
4 The Plaintiffs spent significant time questioning the impact of the School District’s hybrid plan
of both in-person and remote instruction on students. The quality of the educational instruction
is not an issue before the Court, nor could it be. The only issue in this case is whether the court
should enjoin the School District’s return to in-person learning because of the impact on teachers
who want to work remotely.
5 While not before the Court, it is possible that certain teachers would be entitled to a
“reasonable accommodation” under the ADA. However, the Court cannot speculate as to
whether remote teaching qualifies as a reasonable accommodation under the ADA.
14
Policy makers (elected officials) must determine how and when businesses and
government institutions will reopen and function in light of the health risks associated with
COVID-19. In this case, the School Board of Palm Beach County, in discharging its legal
authority and in compliance with the Commissioner of Education’s Emergency Order, developed
its plan for reopening schools for in-person instruction. This Court cannot second guess the plan
DONE and ORDERED in Chambers, at West Palm Beach, Palm Beach County,
15
Copies To:
PLEADINGS@LIVELYLAW.COM,
8401 LAKE WORTH RD
CATHY L. PURVIS- lawyer@livelylaw.com,
#120 LAKE WORTH, FL
LIVELY livelylawfirm@gmail.com,
33467
clively@livelylaw.com
BEACH, FL 33406
16