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The state asked an administrative judge to toss the challenge by six school boards. The court is slated to hear the case Thursday morning.
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The department's proposal and emergency rule both call for allowing parents to opt out their children from masking and children to attend school if they have been exposed to COVID but are asymptomatic.
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Attorneys for the Florida Department of Health said in a motion that Miami-Dade, Broward, Orange, Duval, Alachua and Leon counties do not have legal standing to challenge the rule.
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One superintendent asks the Board of Education to take his pay, too, but was refused. Others argued their strict mandates were needed to protect students.
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The noncompliant districts have 48 hours to change their policy or face financial penalties. Hillsborough, Sarasota and Indian River avoided punishment after recently changing their rules.
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As one of his first official acts, Dr. Joseph Ladapo signed off on a Department of Health rule change that effectively nullified mask mandate lawsuits filed by several school districts.
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The board will meet Oct. 7 and focus on the districts in Alachua, Brevard, Broward, Duval, Hillsborough, Indian River, Leon, Miami-Dade, Orange, Palm Beach and Sarasota counties.
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The Alachua County School District has received $148,000 from the Biden administration to make up for pay cuts.
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An administrative law judge dismissed the case, noting he did not have any “wiggle room” with the new rule giving parents "sole discretion" on mask-wearing.
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Parents can decide whether their children should quarantine if asymptomatic after COVID exposure to minimize time away from in-school learning. The change also tweaks the ban against mask mandates.