Local Health Authorities “Limited by Statute”
By Will Johnson
EAST TEXAS – As the COVID-19 pandemic continues to wreak havoc across the state of Texas, school districts are being placed in a tug-of-war with local governmental entities as to who has the authority to close them down if an outbreak of the Coronavirus hits a campus.
In a non-binding letter released on Tuesday, July 28, Texas Attorney General Ken Paxton addressed this issue in response to a request for clarification on the matter from Stephenville Mayor Doug Svien.
In his nine page response, Paxton stated while local health authorities play an important part in protecting the health of school children and employees “… local health authorities may not issue sweeping orders closing schools for the sole purpose of preventing future COVID-19 infections.”
The AG’s letter further indicated a local health authority’s role “…is limited by statute to addressing specific, actual outbreaks of disease. School officials, both public and private, are the appropriate ones to decide whether, when, and how to open school.”
Paxton added, “Education of our children is an essential Texas value and there is no current statewide order prohibiting any school from opening. While local health authorities may possess some authority to close schools in limited circumstances, they may not issue blanket orders closing all schools on a purely preventative basis. That decision rightfully remains with school system leaders.”
On Wednesday, July 29, Texas Education Agency Commissioner Mike Morath expounded on this.
“Yesterday,” Morath stated, “the Texas Attorney General issued guidance that indicated that blanket school building closures ordered by local public health authorities for preventative purposes are not lawful. School systems planning on starting the year with 100 percent remote instruction will still be fully funded in accordance with TEA’s previously announced 8-week back to school transition funding waiver. Lawful building closure orders will continue to enable a school system to be funded when providing remote-only instruction. Also, it’s important to note that the school start date remains at the discretion of local school boards. TEA continues to monitor the public health situation very closely, working in collaboration with school systems, and remains prepared to adjustor adapt its waiver framework as necessary to ensure we keep students, teachers, and staff safe.”
The TEA Commissioner also addressed funding waivers in his statement indicating school districts would be fully compensated “… for remote instruction for the entire year for any family that requests remote instruction.”
He cautioned, however, to ensure a district receives funding for remote learners, it must provide in-person instruction for those students who desire an on-campus setting.
Morath listed several critical exceptions designed to maximize the health of students, teachers, and staff. These are:
- As part of an 8-week back to school transition period, school systems can offer a solely remote instructional setting, subject to some requirements;
- For up to 5 days if a school building is closed due to a confirmed COVID-19 case on campus, at any point during the school year, schools will be funded for providing remote-only instruction;
- Even beyond this 5-day exception, any day a school building is closed as part of a legally authorized closure order, schools will be funded for providing remote-only instruction;
- High schools can offer an alternating on-campus/remote instructional experience in order to reduce the number of students in campus buildings at one time.
Will Johnson may be contacted via e-mail at [email protected].