STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FLORIDA EDUCATION ASSOCIATION, FLORIDA FREEDOM TO READ PROJECT, and FAMILIES FOR STRONG PUBLIC SCHOOLS, Petitioners, v. CASE NO.: STATE OF FLORIDA DEPARTMENT OF EDUCATION, Respondent, / PETITION IE INVALIDITY OF RI ORIDA ADMI Prelit Statement ‘The Florida Education Association (“FEA”), the Florida Freedom to Read Project CFETRP”), and Families for Strong Public Schools (“FSPS") (collectively “Petitioners”) bring this action pursuant to the Administrative Procedure Act codified at sections 120.56(1) and (3), Florida Statutes, to invalidate Rules 6A-7.0715 (“Training Rule”) and 6A-7.0713 (“Elementary School Rule”) (collectively “the Rules"), Florida Administrative Code. The Rules substantially harm hundreds of thousands of teachers, librarians, students, and families by upending Florida's public education system. Through new restrictions and requirements imposed through an invalidexercise of delegated legislative authority, the Rules exceed the statutory grant of authority and change the effect ofthe law by adopting an unprecedented and illogical definition of “library media center” that should be struck down, The Rules prevent most teachers from selecting materials for their own classrooms, foist uncompensated and time-consuming duties on teachers and librarians, effectively forbid parents from contributing books to their children’s classrooms, and impose a costly and burdensome requirement that schools catalog nearly every book, periodical, or other media on their premises. 1.2022, the legislature authorized the Florida Department of Education (“FLDOE”) to take two actions in implementing I1.B. 1467: 1) prescribe the format for certain lists; and 2) develop a specific training program for educators, The FLDOE’s Rules at issue here far exceed that narrow authority. This attempt to rewrite the statute through the rulemaking process is an invalid exercise of delegated legislative authority that violates four provisions of the Florida Administrative Procedure Act (“APA”) © First, by defining “library media center,” a term that the legislature did not instruct the FLDOE to define, the agency exceeded the legislature’s specific grant of rulemaking authority in violation of Section 120.52(8)(b), Florida Statutes; © Second, the novel definition of “library media center” changes the meaning of the statute {n a fashion contrary to the statutory text and the legistature’s intent and thus expands and revises the reach of the statute in violation of Section 120,52(8)(c), Florida Statutes; © Third, throughout the rulemaking process, the FLDOE failed to comply with its obligations under Section 120.52(8)(2), Florida Statutes, in various ways, including by not adequately accounting for the cost of implementing the Rules, which will affect every one of the nearly 4,000 K-12 public schools within the state and nearly 200,000 public employees; and© Finally, in adopting the unprecedented definitions and vastly expanding the scope of the statute, the FLDOE lacked adequate justification and acted arbitrarily and capriciously in violation of Section 120.52(8)(c), Florida Statutes. Petitioners, on behalf of their hundreds of thousands of teacher, librarian, and parent members whose well-being, livelihoods, and futures are substantially affected, respectfully seck a Final Order that the Rules are an invalid exercise of delegated legislative authority in violation of the APA and ask that the FLDOE be ordered to notify Florida public schools that the Rules are invalid, have been set aside, and will not be enforced. Petitioners further ask that the Division of Administrative Hearings order all other relief that may be deemed appropriate, In support of this petition, Petitioners state the following: Parties, 1, Petitioner FLORIDA EDUCATION ASSOCIATION (“FEA”) is a professional association of educators and education support employees, representing over 140,000 member educators in Florida on all matters associated with their working conditions, Its mailing address is 213 South Adams Street, Tallahassee, Florida, 32301. FEAs address, telephone number, and ‘email address shall be the same as FEA’s undersigned counsel, etal. 2, Petitioner FLORIDA FREEDOM TO READ PROJECT (“FFTRP”) is a parent-led organization that unites parent voices to ensure that school districts? decisions are student centered and to protect students” rights to access information and ideas. FFTRP’s main email address is FiFreedomToReadProject@gmail,com. FFTRD’s address, telephone number, and email address shall be the same as FFTRP’s undersigned counsel, etal. 3. Petitioner FAMILIES FOR STRONG PUBLIC SCHOOLS (“FSPS") is dedicated to centering Florida’s students in education policy by unifying, educating, and empowering parentsto support a strong public education agenda at all levels of goverment. Its mailing address is 95 Merrick Way, Coral Gables, Florida, 33134. FSPS’s address, telephone number, and email address shall be the same as its undersigned counsel, etal 4. The affected state agency is the State of Florida Department of Education (“FLDOE”), which is located at 325 West Gaines Street, Tallahassee, Florida, 32399. The Florida State Board of Education (“the Board”) is the head of the Department of Education and appoints the Commissioner of Education, who serves as the Director of the Department of Education, Section 20.15(1) and (2), Florida Statutes. Tom Grady is the Chair of the Board and Manny Diaz, J. is the Commissioner of Education. Background Facts: The legislature’s adoption of H.B. 1467 and delegation of specific authority te the FLDOE 5. On March 25, 2022, Govemor Ron DeSantis signed into law H.B, 1467, a law that imposes a series of requirements on public schools related to their curricula and library media center collections. A copy of H.B. 1467 is attached hereto as Exhibit 1, and codified, as relevant here, at Scctions 1006.28(2)(a), 1006.28(2)(@), and 1006.29(2), Florida Statutes. 6, Section 1006.28(2)(4), Florida Statutes, states as follows: EE (2) DISTRICT SCHOOL BOARD.—The district school board. has the constitutional duty and responsibility to seleet and provide adequate instructional materials for all students in accordance with the requirements of this part. The district school board also has the following specific duties and responsibilities: owe (@ School library media services; establishment and ‘maintenance.—Establish and maintain a program of school library media services for all public schools in the district, including school library media centers, or school library media centers open to the1. students through a school district library media center or included in a recommended ot assigned public, and, in addition such traveling or circulating libraties as may be needed for the proper operation of the district school system Beginning January 1, 2023, school librarians, media specialists, and other personnel involved in the selection of school district library materials must complete the training program developed pursuant to 8. 1006,29(6) before reviewing and selecting age-appropriate materials and library resources. Upon written request, a school district shall provide access to any material or book specified in the request thet is maintained in a district school system library and is available for review. 1. Bach book made available to students through a school district library media center or included in a recommended or assigned school or grade-level reading list must be selected by a school istrict employee who holds a valid educational media specialist certificate, regardless of whether the book is purchased, donated, or otherwise made available to students, 2, Bach district’ school board shall adopt procedures for developing library media center collections and post the procedures on the website for cach school within the district. The procedures must: a. Require that book selections meet the criteria ins. 1006.40(3)(d). b. Require consultation of reputable, professionally recognized reviewing periodicals and school community stakeholders, ©. Provide for library media center collections based on reader interest, support of state academic standards and aligned curriculum, and the academic needs of students and faculty. d. Provide for the regular removal of discontinuance of books based on, at a minimum, physical condition, rate of recent circulation, alignment to state academic standards and relevancy to curriculum, out-of-date content, and required removal pursuant to subparagraph (a)2. 3. Each elementary school must publish on its website, in a searchable format prescribed by the department, a list of all ‘materials maintained in the school library media center or required as part of a school or grade-level reading list. Among other new mandates, the statute requires that “[eJach book made available toschool or grade-level reading list must be selected by a school district employee who holds a valid educational media specialist cortfieato.” H.B. 1467, 2022 Leg., Reg. Sess. (Pla, 2022), at 6:148- 7:153; Section 1006.28(2)(d)1., Florida Statutes, It also mandates that “[eJach elementary school must publish on its website, in a searchable format prescribed by the department, a list of all materials maintained in the school library media center or required as part of a school or grade- level reading list.” H.B. 1467, at 7:71-74; Section 1006.28(2)(d)3., Florida Statutes. 8, The legislation did not include a “definitions” section but it did amend one pre-existing definition, changing the meaning of the term “instructional materials.” H.B, 1467, at 11:252-265; Section 1006.29(2), Florida Statutes. Section 1006,29(2), Florida Statues, states: (2) For purposes of this part, the term “instructional materials” ‘means items having intellectual content that by design serve as a ‘major tool for assisting in the instruction of a subject or course. ‘These items may be available in bound, unbound, kit, or package form and may consist of hardbacked or softbacked textbooks, clectronic content, consumables, learning laboratories, manipulatives, electronic media, and computer courseware or software, A publisher or manufacturer providing instructional materials as a single bundle shall also make the instructional materials available as separate and unbundled items, each priced individually. A publisher may also offer sections of state-adopted instructional materials in digital or electronic versions at reduced rates to districts, schools, and teachers, 9. Other pre-existing definitions were untouched by H.B. 1467, See, e.g., Section 1006.28(1), Florida Statutes, 10. In HB, 1467, the legislature delegated certain authority to the FLDOE, including the duty to develop and publicize a training program for certain school personnel’; to prescribe a scarchable ‘LB. 1467, at 11:266-12:276, Scotion 1006.29(6), Florida Statutes, 6format for certuin lists to be published on school websites”; and, to publish and disseminate a regularly updated “list of materials that were removed or discontinued as aresult of an objection,” 11, The legislature did not delegate authority to the FLDOE to define terms in the statute, nor did it authorize the FLDOE to restrict who may select materials for schools, See generally H.B. 1467, 2022 Leg., Reg. Sess. (Fla, 2022). 12, During debate on the proposed legislation, the legislature never suggested or revealed an intention that teachers and other non-librarians should be precluded from selecting books, Further, the logislature never discussed requiring schools to catalog books in classrooms, nor did it define the term “library media center,” or contemplate delegating authority to the FLDOE to define that or any other term, Training Rule 13. On November 1, 2022, the FLDOE notified the public that it was in the process of developing a rule to detail the “[p]rocedures relating to library media and instructional materials in district schools.” Dep't. of Educ., Notice of Development of Rulemaking, Rule 6A-7.0715, Vol. 48/213, ID 26484218, Nov. 1, 2022, https:/firules.org/eateway/notice Files.asp?ID~2648418, A copy of the Notice of Development of Rulemaking is attached hereto as Exhibit 2. 14, The ageney published the proposed rule on December 23, 2022 (“proposed Training Rule”), opened a public comment period to run through January 13, 2023, and scheduled a hearing for January 18, 2023. Dep't. of Educ., Notice of Proposed Rule, 6A-7.0715, Vol. 48/248, ID 26644365, Dec. 23, 2022, https://firules.org/gateway/notice Files.asp?1D=26644365; Notice: 26644365, Fla. Admin. Code & Fla. Admin. Reg., 2 HB, 1467, at 7:171-8:179, Section 1006.28(2)(d)3., Florida Statutes, 7 HB, 1467, at 9:1-4, Section 1006.28(2)(e), Florida Statutes.https:/flrules.org/Gateway/View_notice.2sp?id=26644365, A copy of the Notice of Proposed Rule is attached hereto as Exhibit 3, 15, The proposed Training Rule fulfills the mandate of H.B, 1467, codified in Section 1006.29(6), Florida Statutes, that the FLDOE “develop an online training program” and collect annual certifications fiom superintendents “that all school librarians and media specialists employed by the district have completed the online taining program.” 16, The Training Rule also claims to require that “{mJaterials maintained in a school district library media center that are accessible to students or included in a recommended or assigned school or grade-level reading list must be selected by a school district employee who holds an Educational Media Specialist Certificate.” Rule 6A-7,0715(6)(a), Fla. Admin. Code.* 17, The proposed Training Rule cites four other subsections of H.B. 1467 as the law implemented, Sections 1006.28(3), 1006.283(1), 1006.283(4), and 1011.67(2), Florida Statutes, and none of those subsections address non-instructional materials (such as library materials) or include the phrase “library media center.” 18. Section 1006.28(3), Florida Statutes states: @)_ DISTRICT SCHOOL SUPERINTENDENT. (@)_ The district school superintendent has the duty to recommend such plans for improving, providing, distributing, accounting for, and caring for instructional materials and other instructional aids as. will result in general improvement of the district school system, as. prescribed in this part, in accordance with adopted district school board rules prescribing the duties and responsibilities of the district school superintendent regarding the requisition, purchase, receipt, storage, distribution, use, conservation, records, and reports of, and * That language is similar, but not identical to, a requirement imposed by Section 1006,28(2)(d)1., Florida Statutes, which as noted above was adopted as part of H.B. 1467, However, throughout the rulemaking process, the FLDOE never cited Section 1006.28(2)(4)1., Florida Statutes as one of the laws implemented by the Training Rule, That particular statutory provision does not specify any tole for the FLDOE or authorize the agency to take any action.management practices and property accountability concerning, instructional materials, and providing for an evaluation of any instructional materials to be requisitioned that have not been used previously in the district's schools. The district school superintendent must keep adequate records and accounts for all financial transactions for funds collected pursuant to subsection (4). (b) Each district schoo! superintendent shall notify the department by April | of each ycar the state-adopted instructional materials that will be sequisitioned for use in his or her school district. The notification shall include a district school board plan for instructional materials use to assist in determining if adequate instructional materials have been requisitioned, Sections 1006.283(1) and (4), Florida Statutes state: (1) A district school board or consortium of school districts may implement an instructional materials program that includes the review, recommendation, adoption, and purchase of instructional materials, The district school superintendent shall certify to the department by March 31 of each year that all instructional materials for core courses used by the distriet are aligned with applicable state standards, A list of the core instructional materials that will be used or purchased for use by the school district shall be included in the certification, wee (4) Instructional materials that have been reviewed by the district instructional materials reviewers and approved must have been determined to align with all applicable state standards pursuant to . 1003.41 and the requirements in s. 1006.31. The district school superintendent shall annually certify to the department that all instructional materials for core courses used by the district are aligned with all applicable state standards and have been reviewed, selected, and adopted by the district school board in accordance with the school board hearing and public meeting requirements of this scetion.20, Section 1011.67(2), Florida Statutes state (2) Annually by July 1 and before the release of instructional materials finds, each district school superintendent shall certify to the Commissioner of Education that the district school board has approved a comprehensive staff development plan that supports fidelity of implementation of instructional materials. programs, including verification that training was provided; that the materials are being implemented as designed; and, beginning July 1, 2021, for core reading materials and reading intervention materials used in kindergarten through grade 5, that the materials mect the requirements of s, 1001.215(8). Such instructional materials, as evaluated and identified pursuant to s. 1001,215(4), may be purchased by the school district with funds under this section without undergoing the adoption procedures under s. 1006,40(4)(b). The certification must identify any material that received an objection pursuant to s. 1006.28 for the school year and the specific objections thereto, each material that was removed or discontinued as a result of an objection, and the grade level and course for which 2 removed or discontinued material was used, as applicable, This subsection does not preclude school districts from purchasing or using other materials to supplement reading instruction and provide additional skills practice, 21. While “Library Media Center” is not defined in HLB. 1467 or elsewhere in the Florida Statutes, the proposed Training Rule defines “Library Media Center” to mean “any collection of books, ebooks, periodicals, and videos maintained and accessible to students on the site of aschool, including classrooms.” (Emphasis added] Rule 6A-7.0715(2¢), Fla. Admin, Code, 22, Not only does the proposed Training Rule’s definition of “library media center” specifically mention “classrooms” on its face, butt also, by its terms, reaches materials maintained in administrative offices* and that parents contribute to their children’s classrooms, as applied. 5 These may include guidance or nurses? offices, for instance. 1023, By adopting such an expansive definition of “library media center” to include neatly every collection of books and other materials in schools and applying that definition to a training requirement for people selecting materials, the breadth of the proposed Training Rule effectively prohibits teachers from choosing books for their own classrooms, and even parents from donating books or otherwise contributing media to their local schools, unless those individuals have completed a state-designed training. Clearly that was not the intent of the legislature in passing LB. 1467. In fact, the “House of Representatives Staff Final Bill Analysis” (“Staff Bill Analysis”) never touched on that subject for any consideration. A copy of the Staff Bill Analysis is attached hereto as Exhibit 4. 24, The proposed Training Rule also inctudes definitions for the terms “core courses,” “department,” “instructional materials,” “librarians,” “library media center,” “media specialist,” “state academic standards,” and “superintendent.” Rule 6A-7.0715(2), Fla, Admin, Code. “Instructional materials,” “librarians,” “media specialist,” “stato academic standards,” and “superintendent” are defined by reference to other sections of the Florida Statutes. See 6A~ 7.0715(@2\(¢)-@), (-(h), Fla. Admin, Code. The definition for “core courses” references a statutory section but also expands beyond that section. Compare 6A-7.0715(2\(), Fla, Admin, Code with Section 1003.01(14), Florida Statutes. The definitions for “Department” and “Library Media Center” do not refer to statutory sections. Rule 6A-7.0715(2)(b), (e), Fla. Admin, Code. 25, As rulemaking authority for the proposed Training Rule, the FLDOE cites Section 1001.02(1), (2)(n), and 1006.28(2)(d), Florida Statutes. 26. Sections 1001.02(1) and (2)(n), Florida Statutes, state as follows: (1) The State Board of Education is the chief implementing and coordinating body of public education in Florida except for the State University System, and it shall focus on high-level poliey decisions. thas authority to adopt rues pursuant fo ss, 120.536(1) and 120.54 uwto implement the provisions of law conferring duties upon it for the improvement of the state system of Early Learning-20 public education except for the State University System. Except as otherwise provided herein, it may, as it finds appropriate, delegate its general powers to the Commissioner of Education or the directors of the divisions of the department. vee (2) The State Board of Education has the following duties; (2) To adopt cohesive rules pursuant to ss. 120.536(1) and 120.54, within statutory authority. [Emphasis added] 27. Section 1001.02, Florida Statutes, describes the general powers of the Board and was not revised by H.B. 1467. It does not include a specific authorization for the FLDOE to define otherwise undefined statutory terms. In fact, Section 1001,02(2)(n), Florida Statutes, explicitly cabins the power of the FLDOE to adopt cohesive rules by stating that those rules must be “within statutory authority.” (Emphasis added), Section 1001,02(2\(n), Florida Statutes. 28... Section 1006.28(2)(4), Florida Statutes, revised as part of H.B. 1467 and also cited by the FLDOE, imposes a myriad of responsibilities on school districts and only references the FLDOE when authoriring the agency to prescribe a format for alist of materials, which the Training Rule clearly did not do. See supra] 6, 29. Section 1006.29(6), Florida Statutes, states: (6) The department shall develop an ontine training program for school librarians, media specialists, and other personnel involved in the selection and maintenance of library media and collections or ‘materials maintained on a reading list. This training must assist reviewers in complying with the requirements of s, 1006.31(2). The department shall make this training available no later than January 1, 2023. No later than July 1, 2023, and annually thereafter, each superintendent must certify to the department that all school 12librarians and media specialists employed by the district have completed the online training program. This subsection, as one of the laws the proposed ‘Training Rule cites as a “law implemented” (but not “rulemaking authority,”) authorizes the FLDOE to develop an online training program for school personnel involved in selecting and maintaining school libraries or reading lists. 30, Upon information and belief, during the comment period, members of the public submitted nearly 40 unique comments opposing the reference to “classrooms” in the Training Rule's definition of Library Media Center. 31. Commenters opposing the Training Rule noted the onerous and unnecessary responsibilities that the Training Rule would impose on certified educators. Those new duties include requiring certified educators to assume the responsibility of reviewing materials in classroom libraries. Classroom libraries—which focus on reading levels and cater to the specific students in a class—serve a different purpose than schoo! libraries—which are designed to serve the broader school community across reading levels and interests, These collections are maintained separately and are typically stocked through donations as well as teachers’ own books, As many as fificen opposing commenters who work as teachers and library media specialists also stated that the additional burdens associated with the Training Rule would likely dissuade teachers from keeping classroom libraties, thereby potentially decreasing students’ access to books on a variety of topics.” § Petitioners’ counsel submitted a public records request pursuant to a Chapter 119, Florida Statutes on February 7, 2023, secking all comments submitted by the publie related to the ‘Training Rule as proposed. That request remains pending. 7 See, e.g., Fla. Dep’t of Educ., Comment from Julia Gaskins on Proposed Training Rule 6A- 7.0715 (on file with Petitioners’ Counsel) (noting that the rules requirements “not only putf] a burden on the media specialists in schools,” but also “tak[e] away the teacher’s ability to tailor their classtoom materials to suit the needs of their students”); Fla, Dep’t of Edue., Comment 1332, At the January 18 hearing, Board members discussed the Board’s role in implementing Florida law. 1/18/23 Board of Education Meeting Part 1, The Florida Channel, https://thefloridachannel, org/videos/1-18-23-board-of-education-meeting-part-I/, 2:59:30, ‘Therein, the Commissioner of Education specifically commented and conceded that the Board cannot change the language of a statute. 1d. at 3:02:43. 33. The Board then voted to adopt the proposed Training Rule without any revisions. Dep't. of Educ,, Rule 6A-7.0715, ID 26800535, hitps:/hvww.firules.org/gateway/notice_Files.asp?1D~26800535 (“Training Rule”) 34. The final Training Rule is neatly identical to the Training Rule proposed on November 1, 2022. Compare Dep't. of Educ., Rule 64-7.0715, ID 26800535 with Dep't. of Educ., Notice of Proposed Rule 6A-7.0715, Vol. 48/248, ID 26644365, Dec. 23, 2022 (containing substantively identical regulatory language); see also Dep't, of Edve., Notice of Change/Withdrawal, Rule 6A- 7.0175, Vol. 48/252, ID 26665511, Dee. 30, 2022 (noting that the training materials incorporated by reference had been revised but failing to provide specific information on the revisions made). from John Boyd on Proposed Training Rule 6A-7.0715 (on file with Petitioners” Counsel) (highlighting that the Rule would lead to “teachers [] feel[ing] compelled to remove [existing classroom library] books to comply with this rule”); Fla. Dep't of Educ., Comment from Michelle Jarrett on Proposed Training Rule 6A-7.0715 (on file with Petitioners" Counsel) (‘Books for self selected reading are very different than books used in the curriculum"); Fla, Dep't of Educ., Comment from Lou Cleveland on Proposed Training Rule 6A-7.0715 (on file with Petitioners’ Counsel) (“Having the media specialist [] approve [] books [bought with personal funds and parent donations) would be a year long process as collections increase and teachers move from school to school and grade to grade.”); Fla. Dep’t of Educ., Comment from Tene Richman on Proposed Training Rule 6A~7.0715 (on file with Petitioners’ Counsel) (“The ‘proposed training overreaches and overstates the application of the Parental Rights in Education Act, which does *not* apply to ibraries.”); Fla, Dep’t of Edue., Comment of Karen Babor on Proposed ‘Training Rule 6A~7.0715 (on file with Petitioners’ Counsel) (“While I understand the why of this rule, what I don’t think the DOE . . . understand{s] is the financial impact of this rule. . .. We are already in a teacher shortage, . .. All this rule wall do will [be to] eliminate classroom libraries. So instead of working on encouraging our students to read, we will literally be taking books out of their hands.”). 435. A copy of the Training Rule as adopted is attached hereto as Exhibit 5. Elementary Schoo! Rule 36. On August 12, 2022, the FLDOE notified the public that it was in the process of developing a rule to “describe the process and format for school district elementary schools to post” lists of materials required by H.B. 1467. Dep't. of Educ., Notice of Development of Rulemaking, Rule 6A-7.0713, Vol. 48/157, ID 26171684, Aug. 12, 2022, hitps://www flrules.org/gateway/notice Files.asp?ID=26171684. The notice cites Section 1006.28(2)(4)3., Florida Statutes, the provision of H.B.1467 that authorizes the FLDOE to prescribe the “searchable format” for lists, as rulemaking authority for the forthcoming rule. A copy of the Notice of Development of Rulemaking is attached hereto as Exhibit 6. 37. The agency published the proposed rule on September 26, 2022 (ihe “proposed Elementary ‘School Rule”), opened a public comment period to run through October 17, 2022, and scheduled hearing for October 19, 2022, Dep't. of Edue., Notice of Proposed Rule, 6A-7.0713, Vol. 48/187, TD 26331540, Sopt. 26, 2022, hitps://www. flrules.org/gateway/notice Files.asp21D=26331540; Notice: 26331540, Fla. + Admin, + Code «= & ~— Fila, «= Admin Reg, hutps:/Awww.finules.org/Gateway/View_notice,asp?id=26331540. A copy of the proposed rule is attached hereto as Exhibit 7. 38. The proposed Elementary School Rule implements the H.B. 1467 requirement, codified in Section 1006.28(2)(d)3., Florida Statutes, that the FLDOE prescribe the “searchable format” that elementary schools must use when posting lists of materials maintained in the library media center of included on certain reading lists. Rule 6A-7.0713(3), Fla, Admin, Code, Although the Rule claims to implement the entirety of Section 1006.28(2), Florida Statutes, describing the duties of District School Boards, only subsection 1006.28(2)(d), Florida Statutes, relates to the content of 15the proposed Elementary School Rule, and only subsection 1006.28(2)()3., Florida Statutes, ‘authorizes the FLDOE to take any specific action. 39. Section 1006.28(2), Florida Statutes, states in relevant part: (2) DISTRICT SCHOOL BOARD.—The district school board hhas the constitutional duty and responsibility to select and provide adequate instructional materials forall students in accordance with the requirements of this part. The district school board also has the following specific duties and responsibilities: @ School library media services; establishment and ‘maintenance.—Establish and maintain a program of school library media services for all public schools in the district, including school library media centers, or school library media centers open to the public, and, in addition such traveling or circulating libraries as may bbe needed for the proper operation of the district school system, Beginning January 1, 2023, school librarians, media specialists, and other personnel involved in the selection of school district library ‘materials must complete the training program developed pursuant to 8. 1006.29(6) before reviewing and selecting age-appropriate materials and library resources. Upon written request, a school district shall provide access to any material or book specified in the request that is maintained in a district school system library and is available for review. vee 3, Hach elementary school must publish on its website, in a searchable format prescribed by the department, a list of all materials maintained in the school library media center or required as part ofa school or grade-level reading list. 40. Beyond fulfilling the format mandate, the proposed Elementary School Rule defines “Library media center” to mean “any collection of books, ebooks, periodicals, and videos maintained and accessible on the site of an elementary school including classrooms.” Rule 6A- 167.0713(2)(c), Fla, Admin. Code. “{Llibrary media center” was not defined in H.B, 1467 or elsewhere in the Florida Statutes, In addition, the Staff Bill Analysis did not reference nor contemplate an expansive definition of “library media center,” as articulated in this-rule, 41, Practically speaking, that definition, combined with the obligations in Section 1006.28(2)(4)3., Florida Statutes, means schools must catalog and post on-their website the contents of any collection of two or more books or other materials that are accessible to students anywhere in an elementary school building, in addition to material in school libraries. ‘The proposed Elementary School Rule explicitly mentions classrooms but also reaches materials ‘maintained in administrative offices and books and media that parents contribute to school classrooms. This creates an onerous task for the schools and one that was not a specific requirement in the enabling statutes. 42. The proposed Elementary School Rule also establishes definitions for the terms “elementary school,” “clementary school grade level,” “school or grade-level reading list,” and “school district.” Rule 6A-7.0713(2), Fla. Admin. Code. Other than “schoo! district,”* terms including “library media center” are likewise not defined in H.B, 1467 or elsewhere in the Florida Statutes. 43. As rulemaking authority for the Elementary School Rule, the FLDOE cites Sections 1001.02(1), (2)(n), and 1006.28(2)(d)3., Florida Statutes. Section 1001.02, Florida Statutes describes the general powers of the Board and neither of the cited subsections of that provision specifically authorizes the FLDOE to define otherwise undofined statutory terms. See supra if] 26- 27, Likewise, Section 1006.28(2)(d)3., Florida Statutes, adopted as part of H.B, 1467, requires the FLDOE to prescribe the “searchable format” for elementary schools’ lists of library and reading ® The definition of “school district” in the Rule references three statutory sections and one constitutional provision. 7list materials, but it does not authorize FLDOE to define statutory terms. The Rule does not cite any other authority to define terms or any statutory basis for the definitions it purports to adopt. 44, Upon information and belief, during the public comment period, members of the public submitted nearly 100 unique comments, of which approximately two-thirds specifically opposed including classroom libraries in H.B. 1467’s requirement to post a catalog of materials. 45. In opposing the proposed Elementary Schoo! Rule, commenters argued that the Rule would impose additional burdens on teachers and library media spevialists; the potential impact of closing classroom libraries and preventing book donations; the differences between schoo! libraties and classroom libraries; processes that already exist for parents to obtain information about the contents of classroom libraries; Florida’s ongoing teacher shortage; the state’s high levels of illiteracy; and the fact that many elementary schools did not have dedicated library staff or dedicated school websites. At least 56 commenters specifically noted that the proposed definition expanded H.B. 1467 beyond the statutory requirements.” In addition, multiple educators who commented suggested they would be forced to either close their classroom libraries or would consider leaving teaching altogether if the FLDOE adopted the Elementary School Rule. 46, At the hearing on October 19, 2022, parents, teachers, libraries, and other school staff, and ‘educator- and parent-support organizations opposed the proposed Elementary School Rule. Their ® Petitioners” counsel submitted a public records request pursuant to Chapter 119, Florida Statutes,.on January 9, 2023, seeking all. comments submitted by the public related to the Elementary School Rule as proposed, In response to an invoice from FLDOE, Petitioners” counsel sent payment in mid-February. FLDOE cashed Petitioners’ counsel’s check on February 28, 2023, yet that request remains pending. 1 See, e.g., Fla. Dep't of Educ., Comment from Kimberly DeFusco, on Proposed ‘Training Rule 6A-7.0713 (on file with Petitioners’ Counsel) (noting that the rule “expands the scope of the bill” and that if the statute intended to reach classroom libraries “it would have specifically stated ‘that” because the Rule “effectively changes the definition of a school library”); Fla. Dep't of Educ., Comment from Catlin Cibula, on Proposed Training Rule 6A-7.0713 (on file with ners” Counsel) (“Florida statute does not specifically state classroom libraries in the 18statements echoed objections in the written comments and often cited the substantial burden on teachers, library media specialists, and students that would result from the FLDOE unilaterally extending H.B. 1467 to encompass the majority of book collections in an elementary school. Many objected that classroom libraries and other non-curricular collections of books, magazines, and other material are beyond the scope of H.B. 1467 and thus beyond the statute’s legislative intent. Others pointed out that the proposed Elementary School Rule failed to include an assessment of fiscal costs. See 10/19/22 State Board of Education Meeting, The Florida Channel, (3:11:00 - 3:47:30), https:/thefloridachannel.org/videos/10-19-22-state-board-of-education-meeting/, 47, Following the conclusion of the public comment period, Board Chair Tom Grady asked then-FLDOE Senior Chancellor Jacob Oliva to address the inclusion of classroom libraries in the Elementary School Rule’s definition of library media center. /d. at 3:41:50. Mr. Oliva acknowledged the burden the Elementary School Rule would impose and noted that it would take time for classroom teachers to cross-cortelate book data between classroom and library collections. Id. 48. ‘The Board did not address comments or otherwise solicit advice from the FLDOE personnel on whether it had the legal authority to adopt the Rule as proposed. 49. At the conclusion of Mr. Oliva’s remarks, the Board voted to adopt the proposed Elementary School Rule without any revisions, Dep’t, of Educ., Rule 6A-7.0713, ID 26516810 (‘Elementary School Rule”). 50. The final Elementary Schoo! Rule is nearly identical to the Elementary School Rule proposed on September 26, 2022, Compare Dep't. of Educ., Rule 6A-7.0713, ID 26516810 with Dep't. of Educ., Notice of Proposed Rule, 64-7.0713, Vol. 48/187, ID 26331540, Sept. 26, 2022 (containing substantively identical regulatory languago other than one small revision not relevant 19to the outcome of this matter); see also Dep't. of Educ., Notice of Change/Withdrawal, Rule 6A- 7.0173, Vol. 48/199, ID 26406424, Oct. 12, 2022 (changing “it must be” to “or” in 6A- 7.07132)(@)). 51. A copy of the Elementary School Rule as adopted is attached hereto as Exhibit 8. Petitioners are Substantially Affected 52. “Any person substantially affected by a rule , .. may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.” Section 120.56(1)(a), Florida Statutes, To establish standing, a party must show “1) that the rule or policy will result in real or immediate injury in fact; and 2) that the alleged interest is within the zone of interest to be protected or regulated.” Jacoby v. Fla. Bd. of Med., 917 So. 24 358, 360 (Fla, Ist DCA 2005). 53. The “substantially affected” requirement is satisfied” for parties that “work{] in the area that is regulated,” and are affected by rules that concem licensing or other cmployment qualifications. Jacoby, 917 So. 2d at 360. See also Pro. Firefighters of Fla., Inc. v. Dep't of Health & Rehab, Servs., 396 So.2d 1194, 1196 (Fla, 1st DCA 1981) (finding standing where a rule change affected licensing and certification requirements that had a “direct effect” on the ability of members of the petitioner organization “to continue to eam their livelihood”), Where a rule has the effect of regulating an industry, representatives of that industry have standing to challenge the proposed rule, Televisual Comme’ns,, Inc. v. Dep't of Labor & Emp. Sec., 667 So. 2d 372, 374 la. Ist DCA 1995). ‘54. Generally, the fact that an organization’s members are regulated by a rule “is alone sufficient to establish that their substantial interests will be affected and there is no need for further 20factual elaboration.” Coal. of Mental Health Pros. v. Dep't of Pro, Regul, 546 So, 24 27, 28 (Fla, Ist DCA 1989), 55, A professional association qualifies as a “substantially affected person” with standing to challenge rules on behalf of its members. See, e.g., Fla, Home Builders Ass'n v, Dep't of Labor & Emp. Sec., 412 So, 2351 (Fla, 1982). To establish standing, an association must demonstrate that a substantial number ofits members are substantially affected by the rule, the subject matter of the rule is within the association's general scope of interest and activity, and the relief sought is, appropriate for an association to receive on behalf of its members. Id.; see also NAACP, Inc., v. Fla, Bd. of Regents, 863 So. 2d 294, 300 (Fla, 2003) (finding standing for an organization where the petitioner demonstrated a “substantial effect of the rule change on a substantial number of the association's members.”). Organizations proceeding on behalf of theit members is particularly appropriate where “the cost for individuals to [bring a] challenge . . . may be prohibitive.” Rosenzweig v. Dep't of Transp., 979 So. 2d 1050, 1054 (Fla, 1st DCA 2008). 56. FEA is the state's largest professional association for educators and education support employees, with more than 140,000 members and more than 100 local affiliates. More than 70 percent of FEA’s members are kindergarten through twelfth grade instructional personnel as defined by Section 1012.01, Florida Statutes. FEA state and local staff and officers all work on ‘behalf of the members to provide services and benefits. 57. FEA is committed to advocating for a free, quality, public education for all students through membership advocacy and representation, FEA. and its affiliates represent both school library media specialists and classroom teachers. The Training Rule and Elementary School Rule both have a substantial impact on FEA itself, as well as FEA’s members, who are each affected by the FLDOE’s unlawful mandates. As such, FEA is a substantially affected “person” within the aLmeaning of Section 120.56(1)(a), Florida Statutes, and therefore has standing to challenge the Rules. 58. FEA, in supporting its members-classroom teachers and library media specialists—works to ensure that FEA members have manageable workloads and are able to access resources necessary to provide a rich learning environment for students in classrooms, As a result of the Rules, FEA has expended additional resources, including increased staff and local leaders’ time, to address the unauthorized obligations thet the Rules place on FEA members. FEA has experienced an influx of inquiries and complaints from FEA members relating to the Rules, requiring the organization to divert substantial staff time away from other tasks; Among other topics, FEA members seek guidance on the impact of the Training Rule on their ability to sclect books and other media; language in the FLDOE’s training materials, incorporated by reference into the Training Rule, that suggests FEA members may face criminal penalties for simply doing their jobs;"" whether they should self-censor to comply with the Rules; and, the impact of both Rules on how and whether they can maintain classroom libraries. 59. Similarly, FEA has spent considerable time and resources analyzing the Rules, developing training and guidance, and facilitating communication initiatives, sharing news coverage, and media campaigns, in an effort to assist FEA’s members in their efforts to comply with the vague, confusing, and unauthorized requirements as articulated in the Training Rule and the Elementary School Rule. 60. FEA members are subject to the regulations of the Training Rule and Elementary School Rule, The ‘Training Rule regulates FEA members-including classroom teachers and library media The training states that educators are subject to criminal penalties for violations of Section 847.012, Florida Statutes. The Training Rule also encourages those selecting library and instructional material for use in their classrooms and libraries to “[e}er on the side of caution,” 2specialists—in all kindergarten through twelfth grade public schools. The Elementary School Rule rogulates FEA members-including classroom teachers and library media spevialists-working in elementary schools. Within the state’s nearly 4,000 public schools, 1,892 of which aro elementary schools, a-substantial portion of classroom teachers who comprise FEA’s membership ‘maintain classroom libraries as a crucial component of their classrooms, in order to ensure success for their students and to provide opportunities for independent and individualized learning. Because most Florida school districts do not fund these classroom libraries, most FEA classroom teacher ‘members are forced to fund and establish classroom libraries with their own resourees, rely on donations, or forgo them entirely, FEA also represents certified library modia specialists who work in public schools who, under the Rules, face additional obligations-——————— ——— ~~ —— 61. As aresult of the Training Rule and Elementary School Rule, school districts across the state have instructed FEA members to shutter their classroom libraries. FEA's President estimates that public-school teachers in a thitd of the counties spanning Florida have been instructed to box up of restrict access to their classroom libraties as a result of the Rules."? Those who are able-to maintain some semblance of a classroom library face additional and substantial burdens. For example, FLDOE’s promulgation and implementation of the Training Rule resulted in school officials in Manatee, Duval, and Broward Counties directing teachers to remove or cover up their classroom libraries." According to 2 Duval County spokesperson, the County’s action came as : ? Charles Bethea, Why Some Florida Schools Are Removing Books From Thetr Libraries, The ‘New Yorker (Feb. 7, 2023), https://www.newyorker.com/news/letter-from-the-south’why-some- florida-schools-are-removing-books-ftom-theis-ibrari ' Hannah Nalanson, Hide your books 10 avoid felony charges, Fla, schools tell teachers, ‘Washington Post (lan. 31, 2023), itps://www.washingtonpost, com/education/2023/01/3 1/florida-hide-books-stop-woke-ranateo-. ‘county-duval-county-desantis/ (Manatee and Duval Counties); Kate Payne, Censorship fears deepen as Broward teacher told to ‘cover and close all classroom libraries,’ WLRN (Feb. 6, 2023) hitps://www.wlm,org/educatiow/2023-02-06/censorship-feats-leepen-as-broward-teacher- told-to-cover-and-close-all-classroom-libraries (Broward County). 23part.of-the “steps required to comply -with, Florida laws.” For library media staff, instead of. spending their time helping students discover books and other media in centralized school library media centers, they are instead regularly tasked with inventorying and vetting large quentities of books from classroom libraries, a process that may take years."* Thus, the Rules have resulted in heavy burdens on FEA members, including teachers and library media staff, and has further caused confusion, frustration, and negetive impacts to teachers’ and library media staff's ability to ensure students’ suecess and reading comprehension. ‘ 62, Florida Froedom to Read Project’s thousands of members ure-vomprised-of parems-and———2 = educators from across Florida who advocate for every.student’s right to access information and ideas at school. As such, FFTRP is a substantially affected “person” within the meaning of Section 120.56(1)(a), Florida Statutes, end therefore has standing to challenge the Rules. 63. .» Since FLDOE promulgated the Training Rule and Blementary School Rule, FETRP has: expended time and financial resources submitting public records requests to both thé FLDOE and all 67 counties in the state of Florida in an.effortto track and document the impact of the FLDOE's ‘unlawful mandates on a district-by-district basis. In addition, as a result of the classroom library closures resulting from the Rules, FFERP has had to divert resources from other prioritiesiin order to provide books to students whose classroom libraries closed, while simultaneously securing space to collect and store books removed from classrooms that were subject to destruction. "4 See Natanson, supra note 13. 4 18 Richard Hall, A librarian’s frontline view of Florida's ‘vetting’ process for school books, and the titles being banned, Independent (Feb. 13, 2023), ‘tps://www.independent.co.uk/news/world/americas/florida-book-ban-desantis-schools- '2281345,html see also Brittany. Misencik, Book purge begins in Escambia classrooms as some titles are pulled from shelves for review, Pensacola News Journal (Feb. 22, 2023), hitps://www .pnj.com/story/news/local/education/2023/02/22/escambia-schools-pulling-books- from-classrooms-lo-review-after-florida-law-requires-approval/69928665007/ 24+64, FFTRP’s members have also been substantially. affected by the Rules. FFTRP’s parent - members have been forced to expend personal funds to, purchase or otherwise secure books that ‘were historically available in classroom libraries but have been removed. Others have expressed that their children are upset by the reduction or inaccessibility of classroom libraries, And still others have stocks of books that they wish to donate to schools but are prevented from doing so by the new Rules. FFTRP parent members have been instrycted not to allow their children to bring books to school as a result of the Rules, And FFTRP’s members who are teachers and media specialists have been directly impacted by this change. 65... Families for Strong Public Schools works collaboratively with parents, teachers, families, and within government, to create educational: spaces that promote FSPS’s primary goal of supporting and educating Florida’s children. The Training Rule and the Elementary School Rule harm FSPS’s mission and substantially affect FSPS’s more than 1,000 members. As.such, FSPS: is a substantially affected “person” within the meaning of Section 120.56(1)(@), Florida Statutes, and therefore has standing to challenge the Rules. +66... FSPS"s members have been deeply impacted by. the FLDOE’s unlawfully promulgated miles. Some have moved or considered moving their children out of the public school system as a result of the FLDOE’s actions and the far-reaching consequences that could result from the Rules, such as limiting students’ access to a.rich learning environment, One member of FSPS made the difficult decision to move out-of-state in the middle of the school year as a result ofthe Rules and other restrictions on classroom libraries, books and media in the schools, and the burdensome requirements and responsibilities on teachers and library media staff.67. them by the legislature. Agency action constitutes an “invalid exercise of delegated legislative authority” if an agency “goes beyond the powers, functions, and duties delegated by the Argument ‘The Florida APA mandates that agencies may exercise only the authority that is granted to Legislature.” Section 120,52(8), Florida Statutes. 68. Section 120,52(8), Florida Statutes, states: (8) “Invalid exercise of delegated legislative authority” means action that goes beyond the powers, fictions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if'any one of the following applies: (@) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter; (©) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.; (©) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120,54@)a)1.3 (@®_ The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled diseretion in the agency; (©) The rule is arbitrary or capricious. A rule is arbitrary if itis not supported by logic or the necessary facts; a rule is capricious if itis adopted without thought or reason-or is irrational; or (f) The rule imposes regulatory costs on the regulated person, county, or city whict could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives. ‘A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt arule; a specific law to be implemented is also required, An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute, No agency shall have authority to adopt a rule only because itis reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an_ageney have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority 26or generally describing the powers and functions of an agency shall bbe construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute. [Emphasis added). 69. The Training Rule and the Elementary Schoo! Rule both violate these provisions, In adopting the Rules, the FLDOE effectively enlarged, modified, and contravened the statute; exceeded its grant of ruler king authority; failed to comply with the requirements of the rulemaking process; and acted arbitrarily and capriciously. I. The Rules Exceed the Grant of Rulemaking Authority" 70. Defining terms in a rule that were not previously defined in a statute requires a specific grant of delegated legislative authority. 71, Pursuant to H.B. 1467, the legislature authorized the FLDOE to prescribe a “searchable format” for certain lists and to develop a specific training. See, e.g., Section 1006.28(2)(4)3., Florida Statutes (authorizing the FLDOF. to “prescribe” the “searchable format” for lists posted on school websites); Section 1006.28(2)(e), Florida Statutes (same and authorizing the FLDOE to “publish and regularly update” lists of certain materials that have been “removed or discontinued”); Section 1006.29(6), Florida Statutes (authorizing FLDOE to “develop an online training program for school librarians, media specialists, and other personnel involved in the selection and maintenance of library media and collections or materials maintained on a reading list”). © The Training Rule and Elementary School Rule are invalid exercises of delegated legislative authority under both Section 120.52(8\(b), Florida Statutes (exceeds the agency's authority) and Section 120.52(8)(c), Florida Statutes (modifies, enlarges, or contravenes the statute). “Although [the claims are] interrelated, two different issues are involved.” State, Bd. of Trustees v. Day Cruise Ass'n, Inc., 794 So. 2d 696, 701 (Fla. ist DCA 2001). 2772. When adopting the Training Rule and the Elementary School Rule, the FLDOE exceeded the authority it was delegated and instead defined terms and imposed restrictions and requirements where the legislature declined to do so, Because the FLDOE exceeded the legislature's grant of rulemaking authority when adopting the ‘Training Rule and the Elementary School Rule, both Rules are invalid under Section 120.52(8)(b), Florida Statutes, 73, The APA mandates that “agencies have rulemaking authority only where the Legislature has enacted a specific statute, and authorized the agency to implement it, and then only if the ... rule implements or interprets specific powers or duties, as opposed to improvising in an area that can be said to fall only generally within some class of powers or duties the Legislature has conferred on the agency.” State Bd, of Trs. of the Internal Improvement Tr. Fund v. Day Cruise Ass'n, Inc., 794 So. 24 696, 700 (Fla, Ist DCA 2001).'” Rulemaking authority is “statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of the term ‘rule.”” Section 120.52(17), Florida Statutes. 74. To that end, “{algency rulemaking must be based on a specific grant of authority delegated by the Legislature.” MB Doral, LLC v. Dep't of Bus. & Pro. Regul., Div. of Alcoholic Beverages & Tobacco, 295 So. 3d 850, 854 (Fla. Ist DCA 2020) (citing State Bd. of Trs., 794 So, 2d at 700); see also Jacaranda at Cent, Park Master Ass'n, Inc. v. S, Fla, Water Mgmt, Dist, No. 22- 000849RX, 2022 WL 4117700 (Fla. DOAH July 18, 2022), at *13 (finding that a rule that purported to regulate public safety exceeded the agency’s authority because none of the cited authority authorizing the rule or the statutes to be implemented contained the term “publie safety”); '’ The APA also requires that rules “reference . . . the grant of rulemaking authority pursuant to which the rule is adopted” and “reference . .. the section or subsection of the Florida Statutes or the Laws of Florida being implemented ot interpreted.” Section 120.54(3)(a)(1), Florida Statutes. 28¢f, Section 120.54(3)(a)(1), Florida Statutes (requiring that rules “reference . . . the grant of rulemaking authority pursuant to which the rule is adopted”). 75, Pursuant to Section 120,52(8), Florida Statutes, agencies do not “have the authority to implement statutory provisions setting forth general legislative intent or policy,” nor may they adopt “a rule merely because” it is “within the agency's class of powers and duties.” Sw. Fla, Water Mgmt, Dist. v. Save the Manatee Club, Inc., 773 So. 24 594, 598-99 (Fla. Ist DCA 2000) (internal citations omitted); see also MB Doral, 295 So. 3d at 854 (statutory scction authorizing the agency to adopt rules to implement the “Beverage Law” was “insufficient by itself to provide authority for” a rule that imposed geographic restrictions on off-site liquor storage, and “[nJowhere in the [statute] did the Legislature authorize the Division to” specifically impose such restrictions). 76. . ‘The APA also prohibits agencies from “adopt{ing] a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious [or is within the agency’s class of powers and duties].” Section 120.52(8), Florida Statutes. 77. Bvaluating whether a rule exceeds agency authority requires “a close examination of the statutes cited by the agency as authority for the rule at issue to determine whether those statutes, explicitly grant the agency authority to adopt the rule.” MB Doral, LLC, 295 So. 34 af 854, If an agency adopts a rule where “[n]o provision listed as being implemented . .. purports to authorize much less specifically [] direci{s}” it to do so, the ageney exceeds its rulemaking authority and the tule constitutes an invalid exercise of delegated legislative authority. State Bd. of Trs., 794 So, 2d at 703-04. 78. Defining terms is precisely the type of power that requires a specific grant of delegated authority, Where an authorizing statute “does not set forth a definition” but a rule “oreated a dofinition,” the rule is “an invalid exercise of delegated legislative authority.” St Petersburg 29Kennel Club v. Dep't. of Bus. and Pro. Regul, Div: of Pari-Mutuel Wagering, 719 So. 24 1210, 1211 (Fla, 2d DCA 1998) (striking down a.rule defining “poker” where the statutory rejgime referred to, without defining, the word and did not “provide the specific rule-making authority” such as mandating that the agency “shall have the authority to make mules which set forth the definition of poker”). 79, . For the reasons below, both the Training Rule and the Elementary School Rule violate these established principles, Training Rule 80, The Training Rule cites for its rulemaking authority Sections 1001.02(1), (2)(a), and 1006.28, Florida Statutes, These subsections do not authorize the FLDOE to define any terms, including “library media center.” 81. Section 1001.02, Florida Stanutes, outlines the powers of the Board and docs not constitute the requisite grant of rulemaking authority that is sufficient under Section 120,52(8), Florida Statutes, to justify specific regulatory actions. The statute is largely indistinguishable from the general grant of rulemaking authority that was insufficient to justify imposing additional restrictions and defining terms in MB Doral, 295 So. 3d at 854. 82. More specifically, Section 1001.02(1), Florida Statutes, provides that the Board “shall focus on high-level policy decisions” and “has the authority to adopt rules . . . to implement the provisions of law conferring duties upon it for the improvement of the state system of Karly Learning.” Subsection 2(n) provides that the Board may “adopt cohesive rules . . . within statutory authority.” The section as a whole, and the subsections in particular, describe certain duties of the FLDOE and are general grants of rulemaking authority that do not provide the type of specific authorization required by Section 120.52(8), Florida Statutes. 3083. The legislature did not specifically authorize the FLDOE to define terms articulated in Section 1006.28, Florida Statutes, or even touch on the FLDOE’s authority at all. 84... Section 1006.28, Florida Statutes, describes the duties of district schoot boatds, superintendents, and principles rogarding instructional materials, ‘That section includes three~ specific authorizations * for the FLDOE - to determine the format for and publish certain lists: ‘®. “Each elementary school must publish on its website, in a searchable format prescribed by the [FLDOE], a list ofall materials maintained in the school library media center or required as part of a school or grade-level reading list.” Section 1006.28(2)(d)3., Florida Statutes; © “Public participation. Publish on [the District school board’s] website, in a searchable format prescribed by the (FLDOE], a list of all instructional materials, including those used to provide instruction required by s. 1003.42.” Section 1006.28(2)(e), Florida Statutes; and © “The [FLDOE] shall publish and regularly update a list of materials that were removed! or discontinued as a result of an objection and disseminate the list to school districts for consideration in their selection procedures.” Section 1006.28(2), Florida Statutes. 85. Those provisions vest the FLDOE with specific authority to determine a “searchable: format” for certain lists and to “publish and regularly update” a list of certain materials. They do. lot, however, empower the FLDOE to define terms, as it purports to do in Rule 6A+7.0715(2), Fla: Admin. Code, Moreover, they do not authorize the FLDOE to further restrict who-can select ‘materials that are available for students, as the agency aims to do by combining the definitions "8m addition to the three provisions that authorize FLDOE action, the FLDOE is only mentioned one other time in Section 1006.28, Florida Statutes, in subsection (3)(b), which requires school: district superintendents “to notify the department [of education] by April 1 ofteach year the stato- adopted instructional materials that will be requisitioned for use in his or her school district.” 31with the requirements set forth in Rule 6A-7.0175(6)(A), Fla, Admin. Code. The legislature chose to authorize the FLDOE to fulfill certain specific functions and could easily have provided the agency with other specific powers if it.chose to do so. The legislature's decision not to provide those other specific powers must be respected. See e.g., S. Marion Real Estate Holdings v. Dep't of Bus..and Pro, Regul, Div. of Pari-mutuel Wagering, No. 22-000968RX, 2022 WL 2111212, at 39, *6 (Fla. DOAH Apr. 29, 2022) (noting that “t]he existence of [certain] provisions indicates that the Legislature knows how to accomplish [imposing] restrictfions]. The Legislature could have easily [imposed other] restrictfions] . .. or explicitly given the [agency] the authority to do so had the Legislature so intended.”). 86, The Training Rule is thus an invalid exercise of delegated legislative authority under Section 120.52(8)(b), Florida Statutes, since the FLDOE execeded its authority when it defined terms without the requisite specific authorization required by Section 120.52(8), Florida Statutes. Elementary School Rule 87. ‘The FLDOE violated the same principles as above in purporting to define “library media, center” for purposes of the Elementary School Rule. As statutory authority for its action, the Elementary School Rule cites sections 1001.02(1), (2)(a), and 1006.28(2)(4)3., Florida Statutes. None of those provisions, however, authorizes the agency to define any terms, including “brary sedis center” : 88, Section 1001.02, Florida Statutes, is no more adequate of a justification for the Elementary School Rule than for the Training Rule. As a general grant of rulemaking authority that describes the role of an arm of the FLDOE ~ the State Board of Education, it does not detail “specific powers and duties” the agency is charged with implementing, 3289. By contrast, subsection 1006.28(2)(d)3., Florida Statutes does provide a specific authorization, but that authorization is narrow and does not empower the FLDOE to define terms, ‘Subsection 1006.28(2)(4)3., Florida Statutes tasks the FLDOE with the specific authority to determine the criteria of a data collection format: “Each elementary school must publish on its website, in @ searchable format prescribed by the depariment, a list of all materials maintained in the school library, media center or required as part of a school or grade-level reading [Emphasis added). That specific authorization does not include defining “library media center” or any other terms. The legistature’s decision to provide the FLDOE with authorization to perform specific functions shows that it knew how to do so and could have authorized the agency to perform other specific duties, including defining “library media conter,” if it chose. S. Marion Real Estate Holdings, 2022 WL 2111212, at 439. 90, Because the FLDOE exceeded its authority when drafting the Elementary School Rule by defining terms without any authorization, much less the specific authorization required by Section 120,52(), Florida Statutes, the Elementary School Rule constitutes an invalid exercise of delegated legislative authority. IL. The Rules Enlarge, Modify, and Contravene the Statute 91. The Training Rule and the Elementary Schoo! Rule both define “library media center” to include nearly all collections of books and other media located anywhere on a school premises. See Rule 6A-7.0715(2)(), Fla. Admin. Code (“any collection of books, ebooks, periodicals, and videos maintained and accessible to students on the site of a school, including classrooms.”); Rule 6A-7.0713(2)(d), Fla, Admin, Code (“any collection of books, ebooks, periodicals, and videos ‘maintained and accessible on the site of an elementary school including classrooms”). In doing so, the FLDOE effectively designates the entire school as a library media center, These definitions 3not only defy common sense and contravene plain meaning, but also stretch H.B. 1467’s reach ‘beyond what the legislature intended. Because the Rules “enlargef), modifly], [and] contravene[] the specific provisions of law” they purport to implement, they constitute an invalid exercise of delegated legislative authority under Section 120.52(8)(c), Florida Statutes. 92. ‘The power to interpret the meaning and reach of a statute rests with the legislature, unless otherwise specifically articulated in the statute, rather than the agency, and rules are valid only if they are substantively consistent with legislative intent.” See, e.g., S. Baptist Hosp. of Fla. v. Ageney for Health Care Admin., 270 So. 3d 488, 502 (Fla. Ist DCA 2019). Whether a rule is consistent with legislative intent can be determined by a “plain reading” of “clear and unambiguous” statutory language. 1d.; Smith v. Fla. Dep't of Corr., 920 So. 2d 638, 641-42 (Fla. Ist DCA 2005) (finding that where a statute authorized an agency “to collect monetary assessments” but did not “in any way authorize [it] make monetary assessments,” a rule allowing the agency to make such assessments was inconsistent with legislative intent, and that “such a policy decision should be made by the Legislature rather than the executive branch”). 93. To be valid, rules must “givef] effect to a ‘specific law to be implemented,’ and... . implement{] or interpret{] ‘specific powers and duties.”” State, Bd. of Trs., 794 So. 2d at 704 (Fla. Ist DCA 2001) (citing Section 120.52(8), Florida Statutes). The APA requires that rules are “based. on an explicit power or duty identified in the enabling statute.” Sw. Fla, Water Mgmt, Dist. . Save the Manatee Club, Inc., 773 So. 24 at 599 (citing Section 120.52(8\(c), Florida Statutes) (finding '? The 2018 amendment to the Florida Constitution reiterates that the legislative intent, rather than the agency's interpretation, governs, Art. V, § 21, Fla, Const. (“In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of sich statule or rule, and must instead interpret such statute or rule de nova.”) Moreover, an agency's interpretation of a statute never ‘warrants deference where, as here, “itis contrary to the statute's plain meaning.” S. Baptist Hosp. of Fla., 270 So. 34 at 502 (internal citations omitted). 34an invalid exercise of delegated authority where a rule exempted certain types of land development permits from environmental requirements because the statute limited the circumstances where the agency could grant exemptions); of: Section 120.54(3)(a)(1), Florida Statutes (requiring that rules “reference [] the section ot subsection of the Florida Statutes or the Laws of Florida being implemented or interpreted”). A rule is invalid where “[nJone of the cited constitutional ot statutory provisions make reference to, much less gives specific instructions on the treatment of” a topic the rule attempts to implement. State Bd. of Trs., 794 So. 2d at 703. 94, Moreover, a rule modifies or enlarges a statute in a fashion that violates Section 120.52(8)(0), Florida Statutes, if the “effect of the Board’s rule is... adding an additional requirement ... [or] restriction not included by the Legislature.” Ortiz v. Dep't of Health, Bd. of ‘Med., 882 So, 2d 402, 407 (Fla. 4th DCA 2004) (invalidating a rule that effectively restricted the practice of non-physician medical staff where the statute only authorized the Board to establish “standards of practice” for physicians, and citing a case that struck down a role imposing a licensing requirement on physicians that the Legislature had not approved) (citing Fla. Dep't of Health & Rehab. Srvs. v, McTigue, 387 So. 2d 454 (Fla. Ist DCA 1980)); see also Moreland ex rel. Moreland v. Agency for Persons with Disabilities, 19 So. 3d 1009, 1012 (Fla. 1st DCA 2009) (striking down regulatory provisions that imposed an age restriction on Medicaid waivers where tho statute suggested no such restriction and that mandated a particular categorization not called for by statute). 95. Both the Training Rule and the Elementary Rule violate these principles. 35Training Rule 96. The Training Rule is an invalid exercise of delegated legislative authority because it imposes restrictions on educators and parents that go beyond the “specific powers and duties” delegated to the FLDOE and that are not included in the statute. 97... The breadth of the Training Rule’s requirement that books available through a library media center must be selected by school staff with educational media specialist certification,” combined with the unprecedented definition of “library media center” that incorporates nearly every book in a school building, effectively prevents classroom teachers from choosing books for their own classrooms and parents from donating books or otherwise contributing media to their children’s schools. Rule 6A-7.0715(6)(a), 2)(@), Fla. Admin, Code. Because the Training Rule has the effect of impermissibly enlarging, modifying, or contravening the legislative intent that is discernible from a plain reading of the statute, it is invalid under Section 120.52(8\(c), Florida Statutes. 98. ‘The plain language of the statute is clear and unambiguous that those involved in selecting ‘materials for the school library or reading lists must be certified. Teachers, administrators, other staff, and even parents involved in choosing books for classrooms or materials for other school purposes are not subject to the statutory certification requirement. Yet the Training Rule, allegedly promulgated pursuant to the statute, secks to eliminate that distinction and forbid uncertified staff from selecting any material at all for a school. This contravenes a plain reading of the statutory section and imposes a requirement that operates as a restriction that is contrary to the legislative intent, 2 The Training Rule’s requirement that materials be selected by certified educational media specialists echoes Section 1006.28(2)(d)I., Florida Statutes, which is not among the laws implemented by the Training Rule. See supra 4 17 and note 4. 36ion if it so-desires, The statute 99. The legislature showed that it knows how to require certific itself clarifies that certification is required for the two separate functions. within schools of solecting library material and developing the contents of a reading list. Section 1006.28(2)(d)L., Florida Statutes. The legislature could have required that all educators be certified education media specialists or restrict book selection outside of the library to those with the relevant certification, It did not do so. The FLDOE cannot, by rule, now impose those requirements or restrictions in its place. 100, Similarly, the Training Rule is invalid because it enlarges, modifies,-and contravenes the statute by defining “library media center” where the legislature failed to do so (despite including definitions language in Section 1006.28, Florida Statutes), and by providing-s-definition inconsistent with a plain reading and with other uses of the term in Florida Taw. The élear and unambiguous meaning of “library media center” in Sections 1006.28(3), 1006,283(1}, (4), 1006.29(6), and 101 1.67(2), Florida Statutes, is consistent with how the phrase is used throughout’ : Florida law and other rules: It refers to a collection of beoks and other media contained:in the centralized location of a school library. Beyond IB. 1467, the phrase “library media center” is used three times in the Florida statutes, each time in a fashion that refers to centralized libraries in schools thiat are available across classes and grade levels.”! School districts throughout the state highlighttheir “library media centers on their websites with photos and descriptions Of centralized |» 2! See generally Sections 1011.71(2)G) and 1013.62(4)(i), Florida Statutes (describing : permissible uses of capital outlay); Section 257.02(1), Florida Statutes (defining, as part of the chapter on Public Libraries and State Archives, the membership of the State Libraty Council to. include representatives ftom public libraries, postsecondary libraries, a library professional: association, a “multitype library cooperative,” and a “school library media center”) ‘ 37~ library spaces available to all students'and not accessible-only within 2 classroom. See infra 104, 101.. By including a restriction that the legislature did not intend, the Training Rule enlarges, modifies,'and contravenes Section 1006.28, Florida Statutes. < Blementary School Rule 102: The Elementary School Rule modifies, enlarges;*and contravenes Section. 1006.28(2), Florida Statutes, by going beyond the “specific powers and duties” that the statute delegates to the FLDOE and by defining “library media center” in a way that imposes requirements that go beyond the “specific powers and duties” delegated to the FLDOE and that are not included in or consistent with-the statute. A plain reading of the statute demonstrates that the only role the legislature ® See, e.g, Lake Forest Elementary School, Library Media Center, hnttps://www sbac.edu/site/Default.aspx?PagelD=15631 (listing hours of the library media center that are distinct from schoo! houts) (last visited Mar, 9, 2023); Polk County Publie Schools, Library Media Center, hitps://polkschoolsfl.com/librarymediacenter/ (discussing resources available through the central schoo! library) (last visited Mar. 9, 2023); St. Johns County School, Library Media Center, https:/iwww stjohns.k12.41.us/media/libraries/ (using the term “library ‘media center” to refer to the central location in schools where particular staff are assigned) (Iast visited.Mar. 9, 2023); Crawford Mosley High School, 2022-2023 Student Handbook, https://mhsfins.com/content/UserFiles/DefaultUser/images/StudentHandbook2022-2023.pdf (noting that the “Marvin McCain Technology Center is the media center/library for” the school and providing information about hours and processes for accessing the site); Bennett C. Russell Elementary School, Library Media Center, https:/fore.santarosaschools.orgien-US/library-media- center-5b22962f (using the term “library media center” and the word “library” interchangeably whon listing two staff members assigned to the central school library media center) (last visited Mar. 9, 2023); West Florida High School, School Library, hiips:iAvihs-cosd- {Lschoolloop.com/school_libary (“Libraries became Media Centers, and now; Media Centers are becoming Innovation Centers.”) (last visited Mar. 9, 2023); Mila Elementary School, Access to Resource and Services in the School Library Media Program, ‘tips://10220143 1. schoolwires.ne/Domain/8134 (offering that “Your school has a wonderful roora..... That room is the library media conter” and-showing a photograph of a space marked ‘media center”); Storm Grove Middle School, Welcome fo SGMS Media Center, hitps://sgms.indianriverschools.org/students,femilies/inedia_center (referring to the Storm- Grove Middle School Library Media Center as a “facility,” explaining that students may be “sent . in from class” or “come in during their lunch”) (lasted visited Mar. 15, 2023). 38intended for FLDOE to play in implementing the statute is for the agency to prescribe a searchable format for lists of materials. Section 1006.28(2)(d)3., Florida Statutes. 103. - Like the Training Rule, the Elementary School Rule’s definition of “library media center” is inconsistent with how the phrase is otherwise used in Florida law. 104. The statute cited in the Elementary School Rule as the law implemented, Section 1006.28(2), Florida Statutes, distinguishes between libraries and classrooms. It notes that school boards are responsible for “instructional materials and any other materials used in a classroom, ‘made available in a school library, or included on a reaifing list.” Section 1006.28(2)(a), Florida Statutes. This statutory distinction shows that the legislature understood the two locations as separate and distinct. By not specifically extending the cataloging requirement to “other materials used in a classroom,” as it did in Section 1006.28(2)(a), Florida Statutes, the legislature demonstrated its intent to limit the requirement to those materials contained in a centralized library media center or on specific reading lists. See also supra 4 38. 105. Moreover, the same statute cited in the Elementary School Rule, specifically Section 1006.28(1), Florida Statutes, includes language specifying the meaning of four terms. The fact that the legislature defined certain terms in the very statutory section that the Elementary School Rule implements, but declined to define “library media center,” demonstrates that the legislature knew how to specify a particular meaning but chose not to do so for “library media center” or any of the other four terms defined in the Elementary School Rule. Had the legislature intended a more expansive meaning similar to the one promulgated by the FLDOE in the Elementary School Rule, it could have used any other ‘phraseology ‘and made specific reference to, for example, “any collection” of materials at a school, or omitted the key limiting modifier “library,” or referenced 39“classrooms.” Instead, by defining those terms in a way that enlarges, modifies, and contravenes lative anthority. the statutory text, the FLDOE engaged in an invalid exercise of delegated I IL. The Agency Failed to Comply with the Requisite Rulemaking Procedures when Adopting the Rules 106. ‘The FLDOE failed to comply with the procedural requirements of the Florida Administrative Procedure Act when adopting the ‘Training Rule and Elementary School Rule in at least two respects. 107. Section 120.541, Florida Statutes, states in relevant part: 120.541 Statement of estimated regulatory costs — (1(@) Within 21 days after publication of the notice required under s. 120,54(3)(a), a substantially affected person may submit to an agency a good faith written proposal for a lower cost regulatory alternative to a proposed rule which substantially accomplishes the objectives of the law being implemented, The proposal may include the alternative of not adopting any rule if the proposal explains how the lower costs and objectives of the law will be achieved by not adopting any rule, If such a proposal is submitted, the 90-day period for filing the rule is extended 21 days. Upon the submission of the lower cost regulatory alternative, the agency shall prepare a statement of estimated regulatory costs as provided in subsection (2), or shall revise its prior statement of estimated regulatory costs, and either adopt the alternative or provide a statement of the reasons for rejecting the alternative in favor of the proposed rule. (®) If a proposed rule will have an adverse impact on small business or if the proposed rule is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate within 1 year after the implementation of the rule, the agency shall prepare a statement of estimated regulatory costs as required by s. 120.54(3)(b). (2) A statement of estimated regulatory costs shall include: (©) A good faith estimate of the number of individuals and entities likely to be required to comply with the rule, together with a general 40Gescription of the types of individuals likely to be affected by the rule. (©) Agood faith estimate of the cost to the agency, and to any other state and local government entities, of implementing and enforcing the proposed rule, and any anticipated effect on state or local reventues, @ A good faith estimate of the transactional costs likely to be incurred by individuals and entities, including local government entities, required to comply with the requirements of the rule, As used in this section, “transactional costs” are direct costs that are readily ascertainable based upon standard business practices, and include filing fees, the cost of obtaining @ license, the cost of equipment required to be installed or used or procedures required to be employed in complying with the rule, additional operating costs incurred, the cost of monitoring and reporting, and any other costs necessary to comply with the rule. 108, First, Section 120.541, Florida Statutes, requires that “if the proposed rule is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate within | year after the implementation of the rule, the agency shall prepare a statement of estimated regulatory costs as required by s. 120.54(3)(b).” Section 120.541(1\(b), Florida Statutes; Section 120.54(3)(b)1.b., Florida Statutes. 109. Florida law imposes several considerations that the FLDOE was obligated to take into account in a statement of estimated regulatory costs (“SERC”), including a good faith estimation of the number of individuals or entities required to comply with the proposed rule, estimated costs to state and local government entities to implement and enforce the proposed rule and any anticipated effects on their revenue, as well as transactional costs (including such considerations ‘as “the cost of equipment required to be installed or used or procedures required to be employed in complying with the rule, additional operating costs incurred, the cost of monitoring and reporting, and any other costs necessary to comply with the rule.”). Id, Sections 120.541 (2)(b)-(d), Florida Statutes. An agency's failure to conduct a SERC constitutes “a material failure to follow 41the applicable rulemaking procedures or requirements set forth in this chapter.” Jd. Section 120.541(1X), Florida Statutes," 110. ‘The FLDOE ignored these obligations and concedes that it failed to conduct any regulatory cost analysis with regard to cither the Training Rule or the Elementary School Rule. 111. This omission is made even more sigaificant in light of the fact that the Staff Bill Analysis states, “The bill has an indeterminate fiscal impact to the DOE for development of a training program for library media reviewers .. .. District school boards may incur costs ...” It is thus clear that the legislature anticipated there to be regulatory costs associated with the bill and its implementation in agency rules, Training Rule 112. Without analysis, FLDOE made the conclusory determination that the Training Rule would not increase regulatory costs to an amount that would trigger the obligation to conduct a SERC. Notice of Proposed Rule, 6A-7.0715, 113. ‘The FLDOE incorrectly and arbitrarily concluded that by virtue of the nature of the ‘Training Rule, a SERC was not necessary. To the contrary, the costs of implementing the Training, Rule are quite high because it reaches beyond materials in a school library to cover nearly all collections of books and other media material on a school’s premises. This necessarily imposes comptiance obligations on teachers and other school staff, in the form of labor, equipment, material costs, and training. According 1o the FLDOE’s most recently published data, there are a:total of 2 In addition, Florida law requires that an agency consider a rule’s impact on small counties, and when practicable, an “agency shall tier its rules to reduce disproportionate impacts on small businesses, small counties, or small cities to avoid regulating small businesses, small counties, or small cities that do not contribute significantly to the problem the rule is designed to address.” Section 120,54(3)(b)(2)(a), Florida Statutes. FLDOE did not consider the impact to small counties, and their small and often under-resourced school distriets, at all, despite the Rules? application to all school districts within the state 23,697 kindergarten through twelve public schools in Florida as of 2021, every one of which is affected by the Training Rule, FLDOE, Number of Public Elementary, Middle, High and » Combination Schools (K-12 General Education) by District, hitps://www fldoe.org/core!fileparse:php/7588/url/K12GeneralEd2122.xlsx. And there are more than 175,000 teachers now affected by the Rule. See FLDOE, Staff in Florida’s Public Schools Full-Time Instructional Staff Summary 2022-23, hitps://www.fldoc.org/corelfileparse php/7584/uri/ARInstructionalDistStaff2223.xIsx; Because the high number of affected entities and public employees, the FLDOE was obligated to conduct a SERC for the Training Rule, 114, Regardless of whether the FLDOE considered the Training Rule's fiscal impact from a per- school or per-educator perspective, the expected cost far exceeds the $200,000 threshold necessary to conduct a SERC: the FLDOE would be required to conduct a SERC if cach public schoo! spends $55 or each teacher spends more than $1.15 to comply with the Rule. 115. The FLDOE language summarily disavowing its obligation to conduct a SERC for the ‘Training Rule demonstrates that it made no effort to determine the costs associated with the Rule, despite several public commenters raising this concern. Notice of Proposed Rule, 6A-7.0715 (“The Agency has determined that this will not have an adverse impact on small business or likely increase directly o indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.”). The FLDOE’s failure to conduct a SERC is a material violation of rulemaking procedural requirements, in violation of Seotion 120.52(8)(a), Florida Statutes (a rules is an invalid exercise of legislative authority when the “agency has materially failed to follow ‘the applicable rulemaking procedures ‘or requirements set forth in this chapter.”), 43116,- It is also unclear the nature of the data and analysis, if any, or the methodology utilized by the FLDOE to reach the conclusion that a SERC was not necessary. 117, Other FLDOE actions further demonstrate that the agency failed to comply with the requirements of the rulemaking process when adopting the Training Rule. For instance, Section 120.54(@3)(@), Florida Statutes, requires the agency to provide adequate notice of a change to a proposed rule, and FLDOE failed to do so here. The Notice of Change to the Training Rule published on December 30, 2022, merely stated that: “In response to public comment the library media training incorporated by refetence is amended for clarification and better alignment with the law.” Notice of Change, 6A-7.0715 (ID 26665511), The Notice did not contain any information (on what those amendments to the training were. The public had no understanding of, or opportunity to meaningfully comment on, those amendments before the FLDOE voted to adopt the Training Rule, This failure to provide adequate notice constitutes a material failure to adhere to procedural requirements, and therefore, the Training Rule is an invalid exercise of legislative authority in violation of Section 120,52(8)(2), Florida Statutes. See Section 120.54(1)(h), Florida Statutes, Elementary School Rule 118. Like the Training Rule, the FLDOE failed to adequately account for the costs and impacts of the Blementary School Rule, coming to the same unfounded conclusion that the Rule did not trigger an obligation to conduct a SERC. Notice of Proposed Rule, 6A-7.0713 (“The Agency has determined that this will not have an adverse impact on small business or likely increase dieetly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency”). 44119. The Elementary School Rule stands to impact thousands of public schools and tens of thousands of public employees, imposing compliance obligations on teachers and other school staff, in the form of labor, equipment; material costs, and training. See supra fj 112-16. 120, Thete are 1,892 public elementary schools in Florida as of 2021, every one of which is affected by the Elementary School Rule, FLDOE, Number of Public Elementary, Middle, High ‘amd Combination Schools (K-12 General Education) by District. And there are over 70,000 elementary school teachers now affected by the Rule, See FLDOE, Staff in Florida’s Public Schools Full-Time Instructional Staff Summary 2022-23. 121. _ In order to reach the $200,000 threshold to trigger a SERC, each elementary school would need to expend only $106 and each teach only $2.83 in resources to implement or comply with the Elementary School Rule. The FLDOE’s decision to conclude-without analysis-that a SERC was not required was unreasonable. 122. Both the Training Rule and the Elementary School Rule constitute invalid exercises of delegated legislative authority because the FLDOE failed to comply with its statutory obligation in the rulemaking process. IV. . The Rules are Arbitrary and Capricious 123. Both the Training Rule and the Elementary School Rule are arbitrary and capricious in violation of the APA because they (1) conflict with the widespread understanding and interpietation in Florida of the phrase “library media center,” (2) are not supported by logic or necessaty facts, and (3) are adopted without thought or reason by failing to logically connect with the enabling statutes. 45124. Agency rules are arbitrary if they are “not supported by logic or the necessary facts” and capricious if they are “adopted without thought or reason” or if they are “irrational.” Section 120.52(8)(¢), Florida Statutes. 125. Ifa rule’s terms are inconsistent with their meaning in the real world, the rule must fall as itis “not supported by the necessary facts and does not operate according to reason.” Fla. Dep tof Bus. & Pro. Regul., Div. of Alcoholic Beverages & Tobacco v. Target Corp., 321 So. 3d 320 (Fla, 1st DCA 2021) (striking down a rule because its allegedly exclusive list of items customarily sold {in restaurants Was contrary to the evidence, which showed that other items, which were omitted from the list, were also typically sold in restaurants). Training Rule 126, Defining “library media center” in the Training Rule to reach beyond the location of a school district’s centralized collection is illogical in light of how the phrase is routinely, and traditionally, understood. Every other time “library media center” is referred to in the Florida statutes, it either explicitly or implicitly references a central location accessible to all students~that is a schoo! library-rather than all collections of books located virtually anywhere on the premises ofa school, as the FLDOE seeks 0 define the term here. See supra § 100, 127, Further, throughout the rulemaking process, the FLDOE did not provide any basis’or reasoned explanation for changing the understood meaning of the defined term. The FLDOE pointed fo no facts or offered any analysis that supports reading “library media center” to reach classrooms or other parts of the school. To the contrary, the FLDOE acted unilaterally to define the phrase “library media center” in an illogical, unsupported way as a pretext for exercising legislative authority over policy issues. 46128. ‘The FLDOE engaged in an invalid exercise of delegated legislative authority by adopting the Training Rule because it is contrary to fact, logic, and reason, and thus is arbitrary and capricious. Elementary School Rule 129. For the same reasons, FLDOE acted arbitrarily and capriciously in violation of Section 120.52(8)(6), Florida Statutes, when defining “Library Media Center” in the Elementaty School Rule to reach beyond the scope of the centralized library system and to include all collections of books on an elementary school’s premises, See supra 4 126-28, The definition provided in the Rule defies logic and common sense and does not comport with how “library media center” is used in other provisions of Florida law or how the term is naturally understood. 130. By defining terms in an illogical manner, divorced from the enabling statutes, FLDOE acted arbitrarily and capriciously in violation of the APA when promulgating the Training Rule and Elementary School Rule. Requests for Relief Petitioners respectfully request that the Division of Administrative Hearings determine that the Training Rule, 6A-7.0715, and the Elementary School Rule, Rule 6A-7.0713, constitute invalid exercises of delegated legislative authority and be set aside. Petitioners further request the Division of Administrative Hearings direct the FLDOE to discontinue enforcement of and reliance on the Rules and notify Florida public schools of the Division’s instruction. Petitioners also.ask that the Division award attorneys’ fees and casts to Petitioners’ counsel pursuant to séction 120.595(3) of the Florida Statutes. Finally, Petitioners ask that the Division order any other relief as may be deemed appropriate. 47RESPECTFULLY SUBMITTED this 16th day of March 2023. ‘olin M. Roopnarine, FL Bar No. 0079626 GROSSMAN, FURLOW & BAYO, LLC 2022-2 Raymond Die! Road Tallahassee, FL 32308 Telephone: (850) 385-1314 Facsimile: (850) 385-4240 Email: c.roopnarine@gfblawfirm.com Counsel for Petitioners Florida Education Association, Florida Freedom to Read Project, and Families for Strong Public Schools Brooke Menschel JoAnn Kintz ‘DEMOCRACY FORWARD FOUNDATION P.O, Box 34553, ‘Washington, DC 20043 Direct Telephone: (202) 773-0918 Email: bmenschel@democracyforward.org Email: jkintz@democracyforward.org On Behalf of Petitioners Florida Education Association, Florida Freedom to Read Project, and Families for Strong Public Schools Kimberly C. Menchion FL Ber No. 0425613, General Counset FLORIDA EDUCATION ASSOCIATION 213 S. Adams Si Tallahassee, FL 32301-1720 Direct Telephone: (850) 201-3382 Email: kimberly. menchion@floridaea.org Counsel for Florida Education Association 48CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the Division of Administrative Hearings on this 16th day of March 2023. A courtesy copy has been electronically mailed to the following: Andrew King General Counsel Florida Department of Education 1544 Turlington Building Tallahassee, Florida 32399-0400 Email: Andrew. King@fldoe.org Colin M. Roopnarine,Exhibit 1FLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSHB 1467, Engrossed 2 2022 Legislature 2 An act relating to K-12 education; amending s. 3 1001.35, F.S.; establishing term limits for school 4 board members; amending s. 1006.28, F.S.; deleting a 5 requirement that district school boards maintain a 6 specified list on their websites; requiring certain 7 meetings relating to instructional materials to be 8 noticed and open to the public; providing requirements 9 for the membership of committees related to 19 instructional materials; requiring certain individuals a involved in selecting library materials to complete a 12 specified training by a certain date; requiring 13 certain materials to be selected by employees who meet M4 specified criteria; requiring district school boards 15 to adopt procedures for developing library media 16 center collections; providing requirements for such a7 procedures; requiring elementary schools, district 18 school boards, and the Department of Education to post 19 on their websites specified information relating to instructional materials and other materials in certain formats; providing district school board requirements; 22 providing that school principals are responsible for 23 overseeing compliance with specified procedures 24 relating to library media center materials; amending 25 8. 1006.29, F.S.7 requiring the department to develop Page 1 of 13 CODING: Words stvickan are deletions; words underlined are additions. hb1467-04-erFLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSHB 1487, Engrossed 2 2022 Legislature 26 a training program for the selection of materials used 27 in schools and library media centers by a certain | 28 date; amending s. 1006.40, F.S.; revising district 29 school board requirements for the selection and 30 adoption of certain materials; amending s. 1011.67, 31 F.S.; requiring that the certification by district 32 school superintendents to the Commissioner of 33 Education identifies instructional materials that are 34 the subject of an objection and provides specified 35 information related to the objection; providing an 36 effective date. 37 38| Be It Enacted by the Legislature of the State of Florida: 39 40 Section 1. Section 1001.35, Florida Statutes, is amended 41) to read: 42 1001.35 Term of office.—District school board members 43) shall be elected at the general election in November for terms 44] of 4 years except that a person may not appear on the ballot for 45| reelection to the office of school board menber if, by the end 46] of his or her current term of office, the person will have 47| served, or but for resignation would have served, in that office 48) for 12 consecutive years. Service of a term of office which 49) commenced before November 8, 2022, will not be counted toward 50] the limitation imposed by this section. Page 20f 13 CODING: Words stickan are deletions; words underlined are additions. hb 1467-04-erFLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSHB 1467, Engrossed 2 2022 Legislature 51 Section 2. Paragraphs (a) and (a) of subsection (2) and 52] subsection (4) of section 1006.28, Florida Statutes, are 53] amended, and paragraph (e) is added to subsection (2) of that 54] section, to read: 55 1006.28 Duties of district school board, district school 56] superintendent; and school principal regarding K-12 57| instructional materials.— 58 (2) DISTRICT SCHOOL BOARD. 59) the constitutional duty and responsibility to select and provide The district school board has 60] adequate instructional materials for all students in accordance 61] with the requirements of this part. The district school board 62] also has the following specific duties and responsibilities: 63 (a) Courses of study; adoption.~Adopt courses of study, 64] including instructional materials, for use in the schools of the 65] district. 66 1, Each district school board is responsible for the 67] content of all instructional materials and any other materials 68] used in a classroom, made available in a school library, or 69] included on a reading list, whether adopted and purchased from 70] the state-adopted instructional materials list, adopted and 71| purchased through a district instructional materials program 72| under s. 1006.283, or otherwise purchased or made available. 13 distri 14] eeeeent list ef ineteuetional materiale, by gradetevel, 15| purchased—py the-distriety Page 30f 13 CODING: Words sticken are deletions; words underlined are additions, hb1467-04-erFLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSHB 1467, Engrossed 2 16 2. Bach district school board must adopt a policy 77| regarding an objection by a parent or a resident of the county 78} to the use of a specific dneteuetional material, which clearly 79| describes a process to handle all objections and provides for 80] resolution. The process must provide the parent or resident the 81] opportunity to proffer evidence to the district school board 82] that: 83 a. An instructional material does not meet the criteria of 84] s. 1006.31(2) or s. 1006.40(3) (a) if it was selected for use in 85] a course or otherwise made available to students in the school 6| district but was not subject to the public notice, review, 87| comment, and hearing procedures under s. 1006.283(2) (b)8., 9., 88] and 11. 89 b. Any material used in a classroom, made available in a 90] school library, or included on a reading list contains content 91] that is pornographic or prohibited under s, 847.012, is not 92] suited to student needs and their ability to comprehend the 93] material presented, or is inappropriate for the grade level and 94] age group for which the material is used. 95) 96] If the district school board finds that an instructional 97| material does not meet the criteria under sub-subparagraph a. or 98] that any other material contains prohibited content under sub- 99} subparagraph b., the school district shall discontinue use of 100| the material for any grade level or age group for which such use Page 4 of 13 CODING: Words sicker are deletions; words underlined are additions, hb1467-04-¢rFLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSHB1467, Engrossed 2 2022 Legislature 101| is inappropriate or unsuitable. 102 3. Bach district school board must establish a process by 103) which the parent of a public school student or a resident of the 104] county may contest the district school board's adoption of a 105| specific instructional material. The parent or resident must 106] file a petition, on a form provided by the school board, within 107| 30 calendar days after the adoption of the instructional 108] material by the school board. The school board must make the 109] form available to the public and publish the form on the school 110] district's website. The form must be signed by the parent or 111] resident, include the required contact information, and state 112| the objection to the instructional material based on the 113] criterla of s. 1006.31(2) or s. 1006.40(3) (a). Within 30 days 114[ after the 30-day period has expired, the school board must, for 115] all petitions timely received, conduct at least one open public 116| hearing before an unbiased and qualified hearing officer. The 117] hearing officer may not be an employee or agent of the school 118] district. The hearing is not subject to the provisions of 119] chapter 120; however, the hearing must provide sufficient 120] procedural protections to allow each petitioner an adequate and 121| fair opportunity to be heard and present evidence to the hearing 122] officer. The school board's decision after convening a hearing 123} is final and not subject to further petition or review. 124 4. Meetings of committees convened for the purpose of 125| ranking, eliminating, or selecting instructional materials for Page 50f 13 CODING: Words eticken are deletions; words underlined are additons. hb1487-04-erFLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSHB 1467, Engrossed 2 2022 Legislature recommendation to the district school board must be noticed and gpen to the public in accordance with s. 286.011. Any committees convened for such purposes must include parents of district students. (a) School library media services; establishment and maintenance.-Establish and maintain a program of school library media services for all public schools in the district, including school library media centers, or school library media centers open to the public, and, in addition such traveling or circulating libraries as may be needed for the proper operation of the district school system. Beginning January 1, 2023, Baek sehool district chali_provide training te school librarians, and media specialists, and other personnel involved in the selection of school district library materials must complete the training program developed pursuant to s. 1006,29(6) before reviewing and selecting wegesding the peohibition-against-disteibuting-hermiu tte bese Bt Be and appl teas and beot_preczices for providing studente-aceess to age- appropriate materials and library resources. Upon written request, a school district shall provide access to any material or book specified in the request that is maintained in a district school system library and is available for review. 1. Each book made available to students through a school district library media center or included in a recommended or assigned school or grade-level reading list must be selected bi Page 60113 CODING: Words etickon are deletions; words underlined are additions. hb 1467-04-<0rFLORIDA HOUSE OF REPRESENTATIVES 1st 152 153 154 185 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 in 172 114 175 ENROLLED CSHB 1467, Engrossed 2 2022 Legislature a_school district employee who holds a valid educational media specialist certificate, regardiess of whether the book is purchased, donated, or otherwise made available to students. 2. Bach district school board shall adopt procedures for developing library media center collections and post the procedures on the website for each school within the district. The procedures must: a. Require that book selections meet the criteria in s. 1006.40 (3) (a). b. Require consultation of reputable, professionally. recognized reviewing periodicals and school community. stakeholders. g. Provide for library media center collections based on xeader interest, support of state academic standards and aligned curriculum, and the academic needs of students and facult d. Provide for the reqular removal or discontinuance of books based on, at a minimum, physical condition, rate of recent girculation, alignment to state academic standards and relevance: to curriculum, out-of-date content, and required removal pursuant to subparagraph (a) 2. 3. Each elementary school must publish on its website, in a_searchable format prescribed by the department, a list of all materials maintained in the school library media center or required as part of a school or grade-level reading list. e) Public participation.—Publish on website, in a Page 7 of 13 CODING: Words stricken are deletions; words underlined are additions. hb1467-04-erFLORIDA HOUSE OF REPRESENTATIVES 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 ENROLLED CSHB 1467, Engrossed 2 2022 Legislature searchable format prescribed by the department, a list of all in: uctional materials, including those used to provide instruction required by s. 1003.42. Each district school board must: 1. Provide access to all materials, excluding teacher editions, in accordance with s. 1006.283(2) (b)8.a. before the district school board takes any official action on such materials. This process must include reasonable safeguards against the unauthorized use, reproduction, and distribution of instructional materials considered for adoption. 2. Select, approve, adopt, or purchase all materials as a separate line item on the agenda and must provide a reasonable opportunity for public comment. The use of materials described in this paragraph may not be selected, approved, or adopted as part of a consent agenda. 3. Annually, beginning June 30, 2023, submit to the Commissioner of Education a report that identifies: a. Each material for which the school district received an objection pursuant to subparagraph (a)2. for the school year and the specific objections thereto. b. Each material that was removed or discontinued as a result of an objection. ¢. The grade level and course for which a removed or discontinued material was used, as applicable. Page 80f 13 CODING: Words sticken are delefons; words undertined are additions. hb1467-04-erFLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSMB1467, Engrossed 2 2022 Legislature 201| The department shall publish and reqularly update a list of 202| materials that were removed or discontinued as a result of an 203] objection and disseminate the list to school districts for 204) consideration in their selection procedures. 205 (4) SCHOOL PRINCIPAL.—The school principal has the 206] following duties for the management and care of instevetienel 207| materials at the school: 208 (a) Proper use of instructional materials.—The principal 203| shall assure that instructional materials are used to provide 210 instruction to students enrolled at the grade level or levels 211] for which the materials are designed, pursuant to adopted 212| district school board rule. The school principal shall 213] communicate to parents the manner in which instructional 214] materials are used to implement the curricular objectives of the 215| school. 216 (b) Money collected for lost or damaged instructional 217| materials; enforcement .—The school principal shall collect from 218] each student or the student's parent the purchase price of any 219] instructional material the student has lost, destroyed, or 220] unnecessarily damaged and to report and transmit the money 221| collected to the district school superintendent. The failure to 222| collect such sum upon reasonable effort by the school principal 223| may result in the suspension of the student from participation 224) in extracurricular activities or satisfaction of the debt by the 225] student through community service activities at the school site Page 9 of 13, CODING: Words stricken are deletions; words underlined are additions, hb 1467-04-erFLORIDA HOUSE OF REPRESENTATIVES 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243| 244 245 246 247 248 249 250 ENROLLED CSHB 1467, Engrossed 2 2022 Legislature as determined by the school principal, pursuant to policies adopted by district school board rule. (c) Sale of instructional materials.—The school principal, upon request of the parent of a student in the school, shall sell to the parent any instructional materials used in the school. All such sales shall be made pursuant to rule adopted by the district school board, and the principal shall annually provide information to parents that they may purchase instructional materials and how to purchase the materials. (a) Disposition of funds.-All money collected from the sale, exchange, loss, or damage of instructional materials sha: be transmitted to the district school superintendent to be deposited in the district school board fund and added to the district appropriation for instructional materials. (e) Accounting for instructional materials.—2rincipals shall see that all instructional materials are fully and properly accounted for as prescribed by adopted rules of the district school board. (£) Selection of library media center materiais.~School principals are responsible for overseeing compliance with school district procedures for selecting school library media center materials at the school to which they are assigned. Section 3. Subsection (2) of section 1006.29, Florida Statutes, is amended, and subsection (6) is added to that section, to read: Page 10 of 13 CODING: Words stricken are deletions; words underlined are additions. nb 1467-04-erFLORIDA HOUSE OF REPRESENTATIVES 251 252 253 254 255 256 287 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272| 273 274 275 ENROLLED CSHB 1467, Engrossed 2 2022Legislature 1006.29 State instructional materials reviewers.— (2) For purposes of this part state-edepeten, the term “instructional materials" means items having intellectual content that by design serve as a major tool for assisting in the instruction of a subject or course. These items may be available in bound, unbound, kit, or package form and may consist of hardbacked or softbacked textbooks, electronic content, consumables, learning laboratories, manipulatives, electronic media, and computer courseware or software. A publisher or manufacturer providing instructional materials as a single bundle shall also make the instructional materials available as separate and unbundled items, each priced individually. A publisher may also offer sections of state- adopted instructional materials in digital or electronic versions at reduced rates to districts, schools, and teachers. 6) the department shall develop an online training program for school librarians, media specialists, and other personnel involved in the selection and maintenance of ibrar media and collections or materials maintained on a reading list. This training must assist reviewers in complying with the requirements of s, 1006.31(2). The department shall make this training available no later than January 1, 2023, No later than July 1, 2023, and annually thereafter, each superintendent must gertify to the department that all school librarians and media specialists omployed by the district have completed the online Page 11 of 3 CODING: Words stricken are deletions; words underlined are additions, nb 1467-04-0rFLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSHB 1467, Engrossed 2 2022 Legislature 276| training program. ! 277, Section 4. Paragraph (b) of subsection (4) of section 278] 1006.40, Florida Statutes, is amended to read: 279 1006.40 Use of instructional materials allocation; 280| instructional materials, librery books, and reference books; 281] xepair of books.— 282 (4) Each district school board is responsible for the 283| content of all materials used in a classroom or otherwise made students. Each district school board shall adopt 284| available t 285| rules, and each district school superintendent shall implement 286| procedures, that: 287 (b) Provide a process for public review of, public comment 288) on, and the adoption of instevetienal materials, including those 289| instructional materials used to provide instruction required by 290 1003.42 Heseh—sepesduenive health oman disease, ineinding 291] Ha¥/AIDS,—underco-1003-42(3}-and 1003-46, which satisfies the 292} requirements of s. 1006.283(2) (b)8., 9., and 11. 293 Section 5. Subsection (2) of section 1011.67, Florida 294] Statutes, is amended to read: 295 1011.67 Funds for instructional materials.— 296 (2) Annually by July 1 and before the release of 297) instructional materials funds, each district school 298] superintendent shall certify to the Commissioner of Education 299| that the district school board has approved a comprehensive 300] staff development plan that supports fidelity of implementation Page 12 of 3 CODING: Words stricken are deletions; words underlined are additions. hb 1467-04-07FLORIDA HOUSE OF REPRESENTATIVES ENROLLED CSHB 1467, Engrossed 2 2022 Legislature 301[ of instructional materials programs, including verification that 302| training was provided; that the materials are being implemented 303] as designed; and, beginning duly 1, 2021, for core reading 304] materials and reading intervention materials used in 305] kindergarten through grade 5, that the materials meet the 306] requirements of s. 1001.215(8). Such instructional materials, as 307| evaluated and identified pursuant to s. 1001.215(4), may be 308] purchased by the school district with. funds under this section 303] without undergoing the adoption procedures under s. 310] 1006.40(4) (b). The certification must identify any material that 311] received an objection pursuant to s. 1006.28 for the school year 312] and the specific objections thereto, each material that_was 313| removed or discontinued as a result of an objection, and the 314) grade level and course for which a removed or discont: 315] material was used, as applicable. This subsection does not 316| preciude school districts from purchasing or using other 317| materials to supplement reading instruction and provide 318] additional skills practice. 319 Section 6. This act shall take effect July 1, 2022. Page 13 of 3 CODING: Words stricken are deletions; words underlined are additions. hb 1467-04erExhibit 2Notice of Development of Rulemaking DEPARTMENT OF EDUCATION State Board of Education RULENO: RULE TITLE: 6A-7.0715 Certification for Instructional Materials and Library Media Training. PURPOSE AND EFFECT: To set forth the certifications that must be filed by school district superintendents with the Florida Department of Education relating to instructional and library materials, and incorporate the library media training required by s, 1006.29(6), FS. SUBJECT AREA TO BE ADDRESSED: Procedures relating to library media and instructional materials in district school. RULEMAKING AUTHORITY: 1001.02(1), (2)(a), 1006.28, 1006.34, FS. LAW IMPLEMENTED: 1006.28(3), (6), 1006.283(1), (4), 1006.29(6), 1006.34, 1011.67(2), F.S. ‘A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TIME: November 15,2022, 11:00am, — 12:00 Noon ET or upon conclusion of business, if earlier. PLACE: htipsiteams microsoft. com//mectup- Join/19%3amecting MDcON2QwYTYtY TkIMy00ZjdkLTI3ZTQOTUZZjA INJFhOTZI%AOihread v2/02%conte ‘YeTb0%22Tid%422%30%2263bf1 07b-cb6f-4173-8cl.o-1406DbS0b794%22%420%220i0%422%34%2295beS Idl-7863- 4226-Bacl-3¢5240721905%221674 Meeting ID: 263 818 355 872, Passcode: :BEmiQ ‘THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Amber Baumbach, Director of Library Media and Instructional Materials, Bureau of Standards and Instructional Support, Amber. Baumbach@ldoc.org. To comment ‘on this rule development, please go to https://web02.fldoe.orgtules or contact: Chris Emerson, Director, Office of Executive Management, Depertment of Education, email Christian Emerson@fldoe.org. ‘THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS NOT AVAILABLE.Exhibit 3Notice of Proposed Rule DEPARTMENT OF EDUCATION State Board of Education RULENO.: RULE TITLE: 6A-7.0715 Ceniffcations and Plans for Instructional Materials and Library Media PURPOSE AND EFFECT: To set forth the cottfcations and plans that must be filed by school distict superintendents with the Florida Depertment of Bducation relating to instructional anibrary materials. ‘SUMMARY: This new rule is designed, in part to implement House Bill 1467 regarding certification of taining of pprsons who solect library materials. [tis also designed to incorporate existing forms, certifications, and plans required for the release of the instructional materials allocation to schoo! districts. This rule clarifies that library ‘materials, inchuding classroom travis, must be approved and selected by a media specialist. SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined tha this will not have an adverse impact on small business or likely increase direotiy or indireoly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule, A SERC has not been prepared by the Agency. "The Agency has determined that the proposed rule is not expected to require legisletive ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed rule is not expected to have any adverse impact on economic growth or business competitiveness, or increase regulatory costs or any other factor sot forth ins, 120,541(2), F.S., and will not require legislative ratification. This s basod upon the nature of the proposed rule, which describes the instructional materials and brary media certifications and plans that must be Ged by school district superintendents with the Florida Department of Education, Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide proposal for a lower cost regulatory elterstive must do so in writing within 21 days ofthis notice, RULEMAKING AUTHORITY: 1091.02(1), 2){n), 1005:282)(¢), 1006.29(6), F.S. LAW IMPLEMENTED: 1006.28, 1006.28, 100629, 1011.67, FS, AHEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TIME: January 18, 2023, 9:00 am. PLACE: Nassau County Schoo! Board Office, 1201 Atlantic Avenue, Femandina Beach, FL 32034. ‘THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Amber Baumbach, Bureau of Standards and Instructional Support, Florida Department of Education; (850)245-9115 or Amber Baumbsch@Mdoe.org. ‘THE FULL TEXT OF THE PROPOSED RULE IS: {6A-7.0715 Certifications and Plans for Instructional Materials and Library Media, 1 The cof this rule isto set forth the certification school ct superintendents with the FI {2} Definitions, In. tis rule the following definitions apply: (2) “Core. courses” means core-curicula courses as defined in section (s) 1003,01(14), Florida Statues (F.$), and any course covering a subject azea for which instructional materials have been adopted by the Department; (b) “Department” means the Department of Education; c ” i ORS: " . i ‘who meet the definition set f ES (e} “Library Media Center” means any collestion of hooks, ebooks ed. and accessible to students on the ste ofa school, including l : (“Media specialist” means school district employee who meots the definition set forth in s, 1012.010), ES; “State academic standards” means the standards set forth in s. 1003.41, F.S., and Rule 6A-1,09401, F.A.C.