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CASE NO.: 50-2020-CA-010111-XXXX-MB

et al.,




THIS CAUSE came before the Court on Plaintiffs’, Manuel Levine, Evan Caruso1, Carol

DeLong, Sandra Ellen, Annette Levine, Steven Silberberg, Daniel Hepworth, and Greg Launel,

Emergency Amended Motion for Temporary Injunctive Relief (D.E. #7) filed on September 20,

2020, pursuant to Florida Rule of Civil Procedure 1.610. The Defendant, The School District of

Palm Beach County (the “School District”) filed its Response on September 22, 2020. An

evidentiary hearing was held on September 23, 2020. Having carefully considered Plaintiffs’

Motion, the School District’s Response, the evidence and testimony presented during the

hearing, and the applicable law, and being otherwise fully advised in the premises, the Court

finds as follows:

1 Plaintiff Evan
Caruso was voluntarily dismissed from this case at the beginning of the hearing
on September 23, 2020.

Due to the pandemic caused by the spread of COVID-19, many functions of government,

including public education, have been significantly impacted and disrupted. As a result, public

schools in Palm Beach County ended the 2019-2020 school year and began the 2020-20201

school year on an entirely remote learning basis. On July 6, 2020, the Florida Commissioner of

Education issued Emergency Order 2020-EO-06 requiring state school districts to develop plans

to reopen schools for on-site learning five days a week.

At the time the Emergency Order issued, Palm Beach, Broward and Miami-Dade

Counties, where the pandemic has been most prominent, were still under Phase 1 of the

Governor’s Recovery Plan. Accordingly, the School District developed a school reopening plan

that maintained remote learning, exclusively, while the County remained in Phase 1 status. That

plan also called for re-opening of schools upon the County’s entry into Phase 2 of the Governor’s

Recovery Plan, giving parents the option to either send their children to the schools or continue

remote learning. See 2020-21 Florida’s Optional Innovative Reopening Plan, School District of

Palm Beach County at 11, http://www.fldoe.org/core/fileparse.php/19861/urlt/PalmBeach-

ReopenPlan.pdf. Palm Beach County moved to Phase 2 status of the Governor’s Reopening Plan

on September 7, 2020, thereby triggering the reopening of the School District’s schools on

September 21, 2020.

The School District instructed that employees who were not granted a remote work

exemption must be present in person at their schools as of September 21, 2020. (Complaint, ¶

2). Each Plaintiff challenges this directive based on their respective individual circumstances as

outlined below:

 Greg Launel teaches at Jupiter Middle School. He alleges that due to an

underlying heart condition, he has a higher risk of fatality if he contracts the

COVID-19 virus.

 Carol DeLong is an employee of the School District who alleges that she was

rated “category 2,” indicating a high risk for contracting and dying from COVID-


 Sandra Ellen is a teacher employed by the School District who alleges that her

husband has a high risk of contracting and dying from COVID-19. She alleges

that she was denied exemption from in-person teaching because she did not timely

file her application due to a delay in obtaining a physician’s note regarding her

husband’s high-risk status.

 Manuel Levine teaches at J.C. Mitchell Elementary School in Boca Raton. He

claims that due to his age and health conditions he believed that he would be

allowed to teach remotely but is instead required to report to school.

 Annette Levine, apparently a School District employee, claims that due to her

age, she is at a high risk of contracting and dying from COVID-19.

 Steven Silverberg is an employee who is 68 years old and works at Glades Central

High School. He alleges that the School District stated that employees over age

65 would be exempt from in-person attendance, but he claims that his application

for exemption was denied. He alleges that he is not in good health and that his

school presents a higher risk of exposure to COVID-19.

 Daniel Hepworth is married to a teacher who works at Barton Elementary School

in Lake Worth. He alleges that his wife was classified as “category 2” but was

denied an exemption to teach remotely.

(Complaint, ¶¶ 7-14, D.E. #2.)

Plaintiffs assert that the School District’s requirement that personnel return to in-person

presence at the facilities to which they are assigned violates the Florida Constitution. First, they

claim that the School District’s conduct violates article XI, section 1(a), which provides that

“[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality

system of free public schools that allows students to obtain a high quality education.”

(Complaint, ¶ 35.) Second, they assert that the School District’s conduct violates due process as

guaranteed by article I, section 9. (Complaint, ¶ 44.) Based on the foregoing, Plaintiffs seek the

entry of a temporary injunction that:

a) Maintains the “status quo” by permitting the Plaintiffs and all teachers in Palm Beach

County to continue teaching remotely;

b) Enjoins Defendant from requiring Plaintiffs and others who are employed by the School

District to return to brick and mortar schools (Complaint, ¶ 54);

c) Enjoins the District from requiring Plaintiffs and others from returning to schools until

health officials declare that it is safe to do so;

d) Requires Defendant to design and implement policies and procedures to ensure that

schools are safe and the guidelines of the CDC and other health care professionals are

met prior to requiring Plaintiffs and others to return to the schools; and

e) Prohibits the reopening of schools until each school has adequate protective equipment

and supplies and can implement physical distancing requirements.

(Complaint, Prayer for Relief.)

Plaintiffs filed their complaint on September 18, 2020 and moved for an ex parte

“emergency” temporary restraining order. (Motion for Temporary Emergency Injunctive Relief,

D.E. #3.) The Court denied that motion and ordered Plaintiffs to effect service of the motion on

the School District and set the motion for hearing. (Order, Sept. 18, 2020, D.E. # 3.)


Temporary Injunction Standard

To obtain a temporary injunction, the movant must establish (1) a substantial likelihood

of success on the merits, (2) a lack of an adequate remedy at law, (3) the likelihood of irreparable

harm absent the entry of an injunction, and (4) that injunctive relief will serve the public interest.

Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258 (Fla. 2017). “The movant must

prove each element with competent, substantial evidence.” State, Dep’t of Health v. Bayfront

HMA Med. Ctr., LLC, 236 So. 3d 466, 472 (Fla. 1st DCA 2018). If the movant fails to prove one

of the requirements, the motion for injunction must be denied. Id.

A temporary injunction is an extraordinary remedy that “should be granted sparingly and

only after the moving party has alleged and proved facts entitling it to relief.” Hiles v. Auto

Bahn Fed’n, Inc., 498 So. 2d 997, 998 (Fla. 4th DCA 1986). See also Bautista REO U.S., LLC v.

ARR Inves., Inc., 229 So. 3d 362, 365 (Fla. 4th DCA 2017); Gooding v. Gooding, 602 So. 2d

615, 616 (Fla. 4th DCA 1992); Tri-Plaza Corp. v. Field, 382 So. 2d 330, 331 (Fla. 4th DCA

1980). “[R]elief should be awarded only in clear cases, reasonably free from doubt, and when

necessary to prevent great and irreparable injury. . . .” Sackett v. City of Coral Gables, 246 So.

2d 162, 164 (Fla. 3d DCA 1971) (emphasis added).

Substantial Likelihood of Success on the Merits

Plaintiffs challenge the School District’s decision to mandate teachers provide in-person

instruction on two constitutional grounds. The Court finds that Plaintiffs do not have a

substantial likelihood of success on the merits as to either ground.2

Violation of Right to “Safe and Secure” System of Free Public Schools (Art. IX, § 1(a),

Fla. Const.)

Article IX, section 1(a) of the Florida Constitution states:

The education of children is a fundamental value of the people of the State of

Florida. It is, therefore, a paramount duty of the state to make adequate provision
for the education of all children residing within its borders. Adequate provision
shall be made by law for a uniform, efficient, safe, secure, and high quality system
of free public schools that allows students to obtain a high quality education and
for the establishment, maintenance, and operation of institutions of higher
learning and other public education programs that the needs of the people may

(emphasis added). Plaintiffs challenge the portion of this provision mandating that public

schools be “safe.” In essence, Plaintiffs claim that the School District’s requirement that its

personnel now be present in person and on-site at their assigned facilities is not “safe” within the

meaning of article IX, section 1(a).

The question is not lightly posed and nor should it be lightly disregarded. In these

unprecedented times, the School District has asked its employees to continue their vital work

educating the County’s children in circumstances which could, for some, result in serious health

consequences. Plaintiffs have presented compelling arguments underscoring the dangers

associated with COVID-19 and the corresponding necessity to ensure protective protocols and

procedures. However, the Court is bound to find that Plaintiffs do not have a likelihood of

2 Because the Plaintiffs cannot not establish a substantial likelihood of success, the Court will not
address the remaining elements necessary for the issuance of a temporary injunction.
success on the merits in their action for injunctive relief based on several aspects of controlling


First, article IX, section 1(a) does not establish a private cause of action in favor of

individuals against the School District. See Sch. Bd. of Miami-Dade Cnty. v. King, 940 So. 2d

593, 603 (Fla. 1st DCA 2006); Simon v. Celebration Co., 883 So. 2d 826, 831 (Fla. 5th DCA

2004). In fact, the existence of a private cause of action for alleged violation of article IX,

section 1(a) was denied as to the Palm Beach County School Board by then Circuit Judge

Jonathan Gerber in Order Granting Plaintiff’s Motion for Final Order of Dismissal and

Dismissing With Prejudice, Schroeder v. Palm Beach County School Board, No. 50-2008-CA-

007579 (Fla. 15th Cir. Ct. July 28, 2008). Judge Gerber’s order was subsequently affirmed by

the Fourth District Court of Appeal in Schroeder v. Palm Beach County School Board, 10 So. 3d

1134 (Fla. 4th DCA 2009). Schroeder is directly on point, and Plaintiffs have presented no

argument to distinguish it here.

Second, the Florida Supreme Court has clearly prohibited the judiciary from using broad

allegations of violation of article IX, section 1(a) as a pretext to litigate the adequacy of the

public school system. See Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680

So. 2d 400, 408 (Fla. 1996) (upholding dismissal of a blanket challenge to the “adequacy” of the

entire K-12 system); Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 142

(Fla. 2019) (rejecting use of article IX, section 1 challenges as basis for courts to inject

themselves into education policy making and oversight and affirming Coalition’s rationale under

the current Florida Constitution). The Court simply cannot, and should not, determine the

wisdom of public policy. See Burnett v. Greene, 122 So. 570, 576 (Fla. 1929) (the court’s

“purpose and sole function is to administer exact justice, as nearly as may be, to all parties before

it, not to determine the wisdom of a public measure designed to promote the ‘public health,

convenience or welfare’”); see also Lowe v. Broward Cnty., 766 So. 2d 1199, 1206 (Fla. 4th

DCA 2000) (“The Act is a political decision by an elected body. Its wisdom is more properly

addressed at the ballot box and not by a court as a matter of constitutional principle.”).

Plaintiffs rely heavily on an order from the Circuit Court for the Second Judicial Circuit

enjoining the State from enforcing a portion of the Commissioner of Education’s Emergency

Order 2020-EO-06. Order Granting Motion for Temporary Injunction, Fla. Educ. Ass’n v.

DeSantis, Nos. 2020-CA-001450 and 2020-CA0001467 (Fla. 2d Cir. Ct Aug. 24, 2020) (“the

Leon County Order”). The Leon County Order is both instructive and distinguishable.

In the Leon County case, the plaintiffs challenged the Emergency Order because it did

not allow individual school districts to formulate and tailor their own plans to their own

particular circumstances and needs, and it also conditioned State funding upon each school

district’s compliance with the Emergency Order. Id. at 3. The court determined that because the

Emergency Order did not permit the school districts to take into account the circumstances

associated with the pandemic that might affect the best means of providing education, the

Emergency Order was prone to an ultimate determination that it was arbitrary and capricious. Id.

at 7–12.

Significantly, in the Leon County Order, the court recognized that local school boards

and authorities are best equipped to, and indeed are charged with, making decisions based upon

their unique local conditions and needs. As stated by Judge Dodson, “[a]n injunction in this case

will allow local school boards to make safety determinations for the reopening of schools

without financial penalty. This is what the local school boards were elected to do. Every

witness testified that any decision to reopen schools should be based on local conditions.” Id. at

13(emphasis added). This is precisely what has occurred here.

Consistent with Judge Dodson’s order, the School District, through its board, made its

own decisions and determinations on how best to reopen its schools and provide education,

including the option of remote learning. Simply put, the Court cannot, and should not, substitute

its judgment for that of the duly elected School District and its board. See State Road Dep’t v.

Newhall Drainage Dist., 54 So. 2d 48, 50 (Fla. 1951) (“a court of equity will not ordinarily

substitute its judgment for that of an administrative board when acting within the scope of its

authority as defined by law”).

The DeSantis case is also instructive because it demonstrates why the Plaintiffs’ reliance

on article IX, section 1(a) is misplaced. The First District Court of Appeal recently reversed

Judge Dodson’s order vacating a stay of the temporary injunction. In so doing, the District Court

found that the State had a a substantial likelihood of success on the merits of its appeal because,

inter alia, injunctive relief based on article IX, section 1(a) was not available.

Specifically, the First District Court of Appeal stated:

First, the State argues that the circuit court erred when it concluded that the
Emergency Order violated the State’s duty to provide “safe” and “secure” schools
under article IX of the Florida Constitution. The State is likely to prevail on this
argument. The terms “safe” and “secure” as used in article IX, section 1(a), and
construed in the context of a public health emergency appear, to “lack judicially
discoverable or manageable standards that would allow for meaningful judicial
interpretation.” See Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 232
So. 3d 1163, 1168 (Fla. 1st DCA 2017), aff’d, 262 So. 3d 127 (Fla. 2017). In a
similar context—an executive order addressing the COVID-19 pandemic—the
United States Supreme Court held that policy choices for the “safety and health of
the people” are principally entrusted “to the politically accountable officials of the
States ‘to guard and protect’” and should not “be subject to second-guessing” by
the courts. See S. Bay United Pentecostal Church v. Newsome, 140 S. Ct. 1613,
1613–14 (2020) (Roberts, C.J., concurring) (quoting Jacobson v. Massachusetts,
197 U.S. 11, 38 (1905)).

Order on Emergency Motion to Reinstate Automatic Stay at 9, Ron DeSantis v. Fla. Educ. Ass’n,

No. 1D20-2470 (1st DCA Aug. 31, 2020). Plaintiffs rely here on the very same language in

article IX, section 1(a) to support their claim for injunctive relief – i.e. safe and secure schools.

As the First District makes clear, injunctive relief is inappropriate because the terms

“safe” and “secure” are not subject to “meaningful judicial interpretation.” The task of

determining what is an appropriate level of safety to permit a return to in-person learning is

vested with the School District through its elected board. Policy choices for safety and health

should not be second-guessed by the courts.

Third, even if the Court were permitted by law to find that the School Board’s

requirement that teachers conduct in-person learning violated article IX, section 1(a), Plaintiffs’

requested relief is overbroad. An injunction “may be no broader than necessary to restrain the

unlawful conduct” and should “constitute the least intrusive remedy that will be effective.”

Operation Rescue v. Women’s Health Center, Inc., 626 So. 2d 664, 670 (Fla. 1993)(quotations

omitted). In other words, an injunction “must be narrowly tailored to meet the issue in

controversy.” Pediatric Pavilion v. Agency for Health Care Admin., 883 So. 2d 927, 931 (Fla.

5th DCA 2004). See also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091 (Fla. 3d

DCA 2014) (“An injunction should never be broader than is necessary to secure to the injured

party relief warranted by the circumstances involved in the particular case.”); Angelino v. Santa

Barbara Enters., LLC, 2 So. 3d 1100, 1104 (Fla. 3d DCA 2009) (“Injunctions must be

specifically tailored to each case and they must not infringe upon conduct that does not produce

the harm sought to be avoided.”). Injunctions that are overbroad in application are erroneous and

may not be enforceable to the extent of their overbreadth. Goodell v. Goodell, 421 So. 2d 736

(Fla. 4th DCA 1982).

Here, while each Plaintiff pleads his or her own specific situation, collectively they leap

to the conclusion that all employees of the School District also are similarly situated, and thus

the appropriate relief should be a District-wide halt to all on-site, in-person instruction. In the

face of Plaintiffs’ individualized complaints, the overbreadth of such a remedy is self-evident.3

The Plaintiffs in this action have articulated uniquely personal circumstances for desiring to

perform their work remotely instead of in-person, on-site. However, those personal

circumstances cannot be converted or extended to the point of rendering the entire school system

as a whole unconstitutionally “unsafe” for all, particularly where the Supreme Court has made

clear that article IX, section 1 does not support such system-wide challenges. See Citizens for

Strong Sch., Inc., 262 So. 3d at 142.

Further, the sheer scope of Plaintiffs’ requested relief asks this Court to take on the role

of a “super-Board,” overruling and negating one of the most significant, county-wide decisions

the School District has likely ever made. Such a request runs contrary to controlling case law

based on both the separation of powers and the nature of the temporary injunction—an

extraordinary remedy that must be narrowly tailored.

Accordingly, the Court finds that Plaintiffs do not have a substantial likelihood of success

on the merits as to their claim that the School District violated article IX, section 1(a) of the

Florida Constitution by directing schools to resume in-person instruction, or by requiring their

employees to participate in that effort.

Violation of Right to Due Process (Art. I, § 9, Fla. Const.)

Article I, section 9 of the Florida Constitution provides that “[n]o person shall be

deprived of life, liberty or property without due process of law . . . .” The Court finds that

3 Granting the relief requested would compel 55,000 students to leave the classroom and resume
remote learning.
Plaintiffs also have not demonstrated a substantial likelihood of prevailing on the merits of their

due process claim. As the Court interprets this claim, Plaintiffs assert that the School District’s

return to learn plan, and particularly the requirements for employee presence in person and on

site at their assigned facilities, is “arbitrary and capricious” and, therefore, fails the rational basis

test applicable to substantive due process claims. Also, some of the Plaintiffs’ claims further

suggest that the School District has denied them procedural due process in its handling of their

requests for exemptions from the in-person, on-site requirements.

Where a government action is challenged as violating substantive due process and no

fundamental right is at stake, the inquiry is whether the action serves a legitimate governmental

purpose and bears a rational relationship to the governmental objectives. E.g., Mebreno and Fla.

Ass’n of Vendors, Inc. v. City of Hialeah, 188 So. 3d 13, 19 (Fla. 3d DCA 2016) (citing Belk-

James, Inc. v. Nuzum, 358 So. 2d 174, 175 (Fla. 1978), and McKnight v. State, 769 So. 2d 1039,

1039 n. 1 (Fla. 2000)). It is a heavy burden—if there is any reasonable relationship between the

act and a valid governmental objective, it withstands scrutiny. Haire v. Fla. Dep’t of Ag. and

Consumer Servs., 870 So. 2d 774, 782 (Fla. 2004). That the effect of the governmental action is

“fairly debatable” will not suffice to overturn the action: “The fact that there may be differing

views as to the reasonableness of the [governmental body’s] action is simply not sufficient to

void the [action].” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1096 (Fla. 2005).

“Courts will not be concerned with whether the particular legislation in question is the most

prudent choice, or is a perfect panacea, to cure the ill or achieve the interest intended. If there is a

legitimate state interest that the legislation aims to effect, and if the legislation is a reasonably

related means to achieve the intended end, it will be upheld.” Jackson v. State, 191 So. 3d 423,

428 (Fla. 2016).

Here, Plaintiffs have not demonstrated that they can meet this high burden.

Unquestionably, Plaintiffs strongly disagree with the School District’s return to learn plan and

the requirement of staff to be on-site, in-person. Such disagreement, however, simply is not

enough to enjoin its implementation. The School District has a clearly valid governmental

objective in providing instruction to students in the most effective manner possible under these

circumstances, and its decision to re-open brick and mortar schools is rationally related to this

objective. Given the heavy burden they face under rational basis analysis, Plaintiffs have not

demonstrated a likelihood of prevailing on a substantive due process claim.

On the question of procedural due process, Plaintiffs allege the School District has

arbitrarily and capriciously provided exemptions to in-person instruction among its teachers

without any consideration of the health of the teacher. (Motion for Temporary Emergency

Injunctive Relief, ¶ 6). This claim appears to implicate only three of the Plaintiffs – Ms. Ellen,

Mr. Silverberg and indirectly, Mr. Hepworth. Only one of the Plaintiffs, Mr. Silverberg, testified

at the hearing.

The Plaintiffs have failed to establish that the procedure utilized by the School District

violated procedural due process. To make remote teaching an option, the School District created

a classification system. Applicants were then assigned a “class” depending on their individual

circumstances. Once assigned a classification, individual schools had to determine availability

of remote positions based on the circumstances of the school. Such circumstances included the

number of students returning to the classrooms. While it is true that some schools simply could

not offer remote positions, this does not establish a violation of procedural due process.


The lynch pin of the Plaintiffs’ case is the proposition that teachers should be permitted

to work remotely and not in-person in light of safety concerns attendant to COVID-19.4 As a

matter of policy, the Plaintiffs’ position has merit. Placing high-risk individuals in a classroom

may not be good policy. However, courts do not intervene because a policy is alleged to be ill

conceived or poorly implemented.

The fact is that, in the employer/employee relationship between teachers and the School

District, there is no clear legal right to work remotely. The collective bargaining agreement

governing the relationship between classroom teachers and the School District does not provide a

right to teach remotely. Further, as previously discussed, there is no constitutional basis to

impose such a requirement. While the School District may offer remote teaching to certain

individuals, this does not create a legal right for all to teach remotely. 5 Without a clear legal

right, an injunction cannot issue.

The Court is not unsympathetic to the safety concerns demonstrated by the Plaintiffs.

Plaintiffs’ concerns are real, genuine and legitimate. Many teachers face the difficult choice of

refusing to comply with the directives of their employer, or risking exposure to COVID-19.

However, the issues raised in this case clearly demonstrate the difficult choices faced by policy-

makers locally, statewide and nationally in dealing with a national health crisis.

4 The Plaintiffs spent significant time questioning the impact of the School District’s hybrid plan
of both in-person and remote instruction on students. The quality of the educational instruction
is not an issue before the Court, nor could it be. The only issue in this case is whether the court
should enjoin the School District’s return to in-person learning because of the impact on teachers
who want to work remotely.
5 While not before the Court, it is possible that certain teachers would be entitled to a
“reasonable accommodation” under the ADA. However, the Court cannot speculate as to
whether remote teaching qualifies as a reasonable accommodation under the ADA.
Policy makers (elected officials) must determine how and when businesses and

government institutions will reopen and function in light of the health risks associated with

COVID-19. In this case, the School Board of Palm Beach County, in discharging its legal

authority and in compliance with the Commissioner of Education’s Emergency Order, developed

its plan for reopening schools for in-person instruction. This Court cannot second guess the plan

developed and implemented by the School Board.

Based on the foregoing, it is hereby

ORDERED and ADJUDGED that Plaintiffs’ Emergency Amended Motion for

Temporary Injunctive Relief is DENIED.

DONE and ORDERED in Chambers, at West Palm Beach, Palm Beach County,

Florida, this 29th day of September 2020.

See attached Counsel List

Copies To:

Name Address Email



CATHY L. PURVIS- lawyer@livelylaw.com,
LIVELY livelylawfirm@gmail.com,


PATRICIA MORALES BLVD. WEST PALM anna.morales@palmbeachschools.org

BEACH, FL 33406

3300 FOREST HILL sean.fahey@palmbeachschools.org,

BLVD. WEST PALM lesline.alexander@palmbeachschools.org,
BEACH, FL 33406 mary.quesada@palmbeachschools.org