Dear Governor DeSantis and Commissioner Corcoran — Safe Return to In-Person Instruction (August 13, 2021)

Summary

This is a letter dated August 13, 2021 on The Secretary of Education letterhead, ending with the name Miguel A. Cardona, Ed.D., addressed to Governor Ron DeSantis and Commissioner of Education Richard Corcoran of Florida. The letter states that the Department is deeply concerned about Florida's July 30 Executive Order prohibiting school districts from adopting universal masking policies consistent with CDC guidance. It states that the American Rescue Plan Act of 2021 provides more than $7 billion to support Florida's students and educators through ESSER, and that allowable uses include paying the full salaries of educators and school board members. It also says the Florida Department of Education has made none of the ARP ESSER funds available to school districts.

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                                              THE SECRETARY OF EDUCATION
                                                   WASHINGTON, DC 20202



                                                   August 13, 2021

The Honorable Ron DeSantis                                  The Honorable Richard Corcoran
Governor                                                    Commissioner of Education
The Capitol                                                 Florida Department of Education
400 S. Monroe Street                                        325 W. Gaines Street
Tallahassee, FL 32399                                       Tallahassee, FL 32399

Dear Governor DeSantis and Commissioner Corcoran:

         As the new school year begins in school districts across Florida, it is our shared priority
that students return to in-person instruction safely. The safe return to in-person instruction
requires that school districts be able to protect the health and safety of students and educators,
and that families have confidence that their schools are doing everything possible to keep
students healthy. Florida’s recent actions to block school districts from voluntarily adopting
science-based strategies for preventing the spread of COVID-19 that are aligned with the
guidance from the Centers for Disease Control and Prevention (CDC) puts students and staff at
risk. I am writing on behalf of the U.S. Department of Education (Department) to emphasize the
importance of allowing school district leaders to make decisions that ensure safety for their
students.

       In particular, I am deeply concerned about Florida’s July 30 Executive Order prohibiting
school districts from adopting universal masking policies consistent with CDC guidance. 1
Moreover, on August 9, the Governor’s spokesperson released a statement specifying that in
cases where school districts adopt masking policies consistent with CDC guidance, “the State
Board of Education could move to withhold the salary of the district superintendent or school
board members.” The Governor’s Office appeared to further clarify that penalties could take the
forms of fines on a school district.

       The Department recognizes that several school districts in your State have already moved
to adopt such policies in line with guidance from the CDC for the reopening and operation of
school facilities despite the State level prohibitions. The Department stands with these
dedicated educators who are working to safely reopen schools and maintain safe in-person
instruction.

        The American Rescue Plan Act of 2021 (ARP Act) provides more than $7 billion to
support Florida’s students and educators through the Elementary and Secondary School
Emergency Relief Fund (ESSER). The Department notes that allowable uses of ESSER funds
include “activities that are necessary to maintain the operation of and continuity of services in
local educational agencies and continuing to employ existing staff of the local educational
agency.” This includes paying the full salaries of educators (including superintendents) and
school board members, regardless of whether the State moves to withhold some of their salary as
Florida is threatening.


1
    See: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-175.pdf.
         Despite the requirement in the ARP Act that “[e]ach State shall make allocations… to
local educational agencies in an expedited and timely manner and, to the extent practicable, not
later than 60 days after the receipt of such funds”—that is, by May 24—the Florida Department
of Education (FL DOE) has made none of these funds available to Florida’s school districts for
their intended purpose. In fact, it appears that Florida has prioritized threatening to withhold
State funds from school districts that are working to reopen schools safely rather than protecting
students and educators and getting school districts the Federal pandemic recovery funds to which
they are entitled.

         Even if Florida does not fulfill its responsibility to make ARP ESSER funds available to
its school districts expeditiously, a school district may use ARP ESSER funds for pre-award
costs dating back to March 13, 2020. In addition, a school district may use ESSER funds under
the Coronavirus Aid, Relief, and Economic Security (CARES) Act or the Coronavirus Response
and Relief Supplemental Appropriations Act, 2021 (CRRSAA) for the same purposes. In other
words, any threat by Florida to withhold salaries from superintendents and school board
members who are working to protect students and educators (or to levy other financial penalties)
can be addressed using ESSER funds at the sole and complete discretion of Florida school
districts.

        In addition, Florida’s State level action against science-based strategies for preventing the
spread of COVID-19 appears to restrict the development of local health and safety policies and is
at odds with the school district planning process embodied in the Department’s interim final
requirements. As you know, the ARP Act requires each LEA that receives ARP ESSER funds to
adopt a plan for the safe return to in-person instruction and continuity of services. (See section
2001(i).) The Department’s interim final requirements clarify that such plan “must
describe…how [the LEA] will maintain the health and safety of students, educators, and other
staff and the extent to which it has adopted policies, and a description of any such policies, on
each of the following safety recommendations established by the CDC…” The safety
recommendations include “universal and correct wearing of masks.” The Department is
concerned that Florida’s action could limit each LEA’s ability under the ARP Act to adopt a plan
for the safe return to in-person instruction and continuity of services that the LEA determines
adequately protects students and educators by following CDC guidance.

        As mentioned in my call to Commissioner Corcoran on August 4, we are eager to partner
with FL DOE on any efforts to further our shared goals of protecting the health and safety of
students and educators. If FL DOE does not wish to pursue such an approach, the Department
will continue to work directly with the school districts and educators that serve Florida’s
students. In addition, the Department will continue to closely review and monitor whether
Florida is meeting all of its Federal fiscal requirements. It’s critical that we do everything in our
power to provide a safe environment for our students and staff to thrive.

                                              Sincerely,



                                              Miguel A. Cardona, Ed.D.


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