Local Health Authorities Can't Issue ‘Sweeping Orders Closing Schools': Texas AG Paxton

Paxton's guidance puts the decision on when to start school back in the hands of the local school districts

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In newly issued guidance Tuesday, Texas Attorney General Ken Paxton says local health authorities may not issue ‘sweeping orders closing schools’ for the sole purpose of preventing future COVID-19 infections.

The guidance comes as a response to a request from Stephenville Mayor Doug Svien, according to Paxton's office.

“While playing an important role 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,” according to a news release from Attorney General Paxton’s office. “Rather, their 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.”

In the letter, Paxton noted several local health authorities have issued orders purporting to delay in-person instruction at public and private schools for the upcoming school year. Such orders have been issued in Dallas and Tarrant counties, for example.

Last Tuesday, Tarrant County health officials announced a joint order signed by local health authorities from Tarrant County, the city of Arlington and the city of Burleson. The order stated public schools and non-religious private schools in the county must conduct online-only classes until at least Sept. 28. On July 16, Dallas County Health and Human Services issued an order requiring all Dallas County schools to delay in-person education and extracurricular activities until after Sept. 7, due to the surge in COVID-19 cases and hospitalizations.

Tarrant County Judge Glen Whitley said the guidance issued by Paxton on Tuesday meant decisions on reopening schools now rest with local school leaders.

"If there was an outbreak, in a particular school, then the public health authority would have that authority to go in and close that particular school down," Whitley said. "But to have a blanket order that did that without an event occurring within a school was what the AG said was beyond their authority."

Vinny Taneja, director of Tarrant County Public Health, said he was "disappointed" the guidance invalidated the joint order. During his briefing before county commissioners Tuesday, Taneja noted the most recent data shows indicators used to track COVID-19 progress such as hospitalizations are declining.

The biggest factor in that decline is the heavier use of masks, Taneja said. However, he expressed concern in the ability to maintain social distancing in a school setting. Online learning is the safest option and presents the lowest risk right now, Taneja said.

"After that, it is not a 'no risk' strategy. Risk is there when you open schools, whether they’re religious schools, private schools, public schools. It doesn’t matter," he said. "If you open schools and put a lot of kids together, there’s going to be risk of spread. Are there ways to reduce that and mitigate that? Of course, there are ways to try to open them safely but it’s going to continue to have disruptions because there’s going to be cases among kids. Cases among teachers."

On July 17, in a letter to religious private schools, Paxton said the local public health orders filed in Dallas County attempting to restrict religious private schools from reopening with in-person instruction were unconstitutional Friday.

“These orders generally rely on state law allowing a health authority to control communicable diseases,” Paxton wrote Tuesday. “But nothing in the law gives health authorities the power to indiscriminately close schools—public or private—as these local orders claim to do. Although the plain language of the law provides some authority to local health authorities to quarantine property in certain instances, that authority is limited. It does not allow health authorities to issue blanket quarantine orders that are inconsistent with the law.”

Paxton went on to say this week that although a local health authority may possess "some authority in limited circumstances to close schools, this authority is cabined by laws governing the application of control measures to property and the governor’s executive orders."

"We recognize, of course, that these unprecedented circumstances are difficult times for many Texans and may require difficult decisions from our state and local leaders," Paxton wrote. "But, as the Texas Supreme Court has recognized, “[t]he Constitution is not suspended when the government declares a state of disaster.” Government action, no matter how urgent or expedient it is believed to be, may not exceed the constitutional limitations that have been placed upon it by the people. We encourage local and school system officials to work together to make the best decision, within their authority under the law, to protect the health and safety of the residents of their jurisdictions."

This is a developing story. Check back for updates.

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