Who is in charge here? That is the question. The power struggle between Governor Abbott, Texas Attorney General Ken Paxton, and local officials continue, this time over school closures.
Tuesday Texas Attorney General Ken Paxton released a letter offering his opinion on local authorities issuing orders for schools to remain closed when the new school year begins. Paxton points to the fact that it is the responsibility of local school districts to decide about school openings and making allowances for students to assure their safety in class. It is not the job of public health officials to make that decision.
In his letter, Paxton said local health authorities cannot preemptively order campus closures for the purposes of preventing COVID-19 outbreaks. Paxton said it’s up to school officials to decide whether, when and how to open schools — not local health authorities whose roles are “limited by statute to addressing specific, actual outbreaks of disease.”
“Education of our children is an essential Texas value and there is no current statewide order prohibiting any school from opening,” Paxton said in a statement. “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.”
Paxton’s letter isn’t legally binding. He is just delivering his opinion. What he seems to be expressing is concern over a one-size-fits-all approach to re-opening schools in the midst of the coronavirus outbreak. What it does, though, is to further muddy the waters. Most schools have put forward plans to either hold online learning opportunities for students and/or a plan to keep students safe in class using the suggestions of medical experts on mitigating the virus – face masks, hand-washing, social distancing. Earlier this month, Paxton issued guidance to private religious schools – local public health orders attempting to restrict their reopenings are unconstitutional and unlawful.
In addition to violating the U.S. and Texas constitutions and the Texas Religious Freedom Restoration Act, Paxton writes that Gov. Greg Abbott’s executive orders bar local governments from closing religious institutions or “dictating mitigation strategies to those institutions.”
The legally nonbinding letter essentially gives religious schools the green light to disobey local public health orders that would stop them from reopening.
“In accordance with the protections granted by the First Amendment and Texas law, this guidance allows religious private schools to determine for themselves when to reopen free from any government mandate or interference,” Paxton said in a statement Friday.
The Texas Education Agency (TEA) also weighed in on Tuesday, adding more confusion. The TEA announced that state school funding may be withheld from Texas public school districts if schools are closed solely due to concerns over the spread of the coronavirus. So, public school districts that rely on state funding are left powerless. For instance, schools in Houston were issued an order by Harris County Judge Lina Hidalgo to remain closed through Labor Day, with the possibility that she may extend school closures even longer after that date.
For now, the state guidance does not significantly impact districts that have pushed their start date until after Labor Day or those beginning their year with online-only classes, an option available under TEA rules for the first eight weeks of school. Nearly all Houston-area districts are employing those options.
“Virtually all of the public health authority orders covered a time period that was also covered by the start-of-school transition period,” TEA Commissioner Mike Morath told Texas superintendents on a conference call Tuesday.
However, the guidance could have a longer-term impact if state officials require districts to provide in-person classes to families that want them after the first eight weeks of school. When Harris County Judge Lina Hidalgo on Friday issued a school closure order lasting through Labor Day, she warned that she likely would extend the mandate amid a regionwide COVID-19 outbreak.
“Our actions to save lives from this crisis should be guided by public health, science and compassion for the health and safety of our residents — not politics,” Hidalgo said in a statement Tuesday. “That is why we’ve consulted with superintendents from across the region to put forth a school plan that protects the health and safety of our community given the severity of this threat right now.”
Local officials in other large Texas counties have also issued orders to keep schools closed. Rest assured, the politics in these decisions are strong. Hidalgo is quick to release her inner authoritarian and seems intent on keeping Harris County – the state’s largest county – closed. I’m sure after November 3 everything will be fine.
TEA officials say that school districts will receive funding for online classes if they are forced to close under an order legally issued by a local health authority, which is why the latest guidance from Paxton and TEA is confusing. While the legality of local orders remains in question, the school reopenings remain left hanging in the balance. Earlier this month, TEA said public school districts had to offer full weekly in-person classes, made available to all families who wanted it. Then, a week later the agency officials clarified its position saying school districts would receive funding if the districts were legally ordered to close campuses by local health authorities. And, there is guidance that allows districts to limit in-person classes for up to eight weeks into the new school year.
So, that is where Texas is on school reopenings this fall. It’s clear as mud, right? Governor Abbott is going to have to stop sitting on the fence and weigh in on this subject. When asked about it, Abbott usually says it is up to local officials to use their authority on school reopenings but doesn’t specify if it is city officials or public health officials. Naturally, state education officials (unions) want to listen to anyone except the Republican governor and attorney general. Their statement, ironically, slams Paxton’s “ideological agenda”.
“The Texas State Teachers Association has more confidence in the professionalism of local health officials and their determination to act in the best interests of all Texans, including our children,” President Ovidia Molina said in a statement.
“We have less confidence in Ken Paxton, whose primary goal as attorney general has been to advance an ideological agenda. Now, he is promoting President Trump’s election-year demands that school campuses reopen prematurely, regardless of the price that educators, students and their families may pay.”
Meanwhile, school children suffer without normal routines like going to school. Local health orders mandating the closure of schools remain legally binding for now. The time lost outside classroom instruction and the effects on kids may never be recovered.