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Texas Private Schools Association

The school situation remains a big ol’ mess

You can blame Greg Abbott for all this confusion.

After weeks of confusion and conflicting signals, Texas has settled into policies that effectively compel schools to reopen their classrooms this fall no later than eight weeks after the academic year begins, whether they want to or not.

Teachers, parents, school administrators and public health officials have been seeking clarity for weeks on how the state will approach reopening schools safely as coronavirus infections and deaths rise across Texas.

Gov. Greg Abbott has not responded directly to questions from reporters about who has the authority to order schools closed in areas hard-hit by the virus, and the Texas Education Agency has sent mixed messages on reopening guidelines.

But despite the lack of any formal announcement from the governor, the die was cast in in a rapid two-step process Tuesday. First, Texas Attorney General Ken Paxton released nonbinding legal guidance saying local public health officials do not have the power to preemptively require all schools in their jurisdictions to remain closed, even as COVID-19 cases continue to climb in many Texas hotspots.

Then, state education officials reversed an earlier decision by announcing they will not fund school districts that keep classrooms closed for longer than the state allows even if ordered to do so by a local health mandate. Taken together, the actions put school districts in the position of reopening classrooms on the state’s timetable or losing funds and risking potential litigation.

Educators and families must now once again rethink their back-to-school plans this fall. The education agency has given school districts up to eight weeks to limit the number of students permitted on their campuses, after which they must open classrooms to all students who want to attend.

That ninth week is looming large for superintendents who are not sure what the public health landscape will look like at that point. Now, they can’t depend on their local health officials to give them more time, without losing money.

“Starting in the ninth week of our respective school years, regardless of the status of the virus in our communities, as the guidance is written today, we would be faced with two options,” said Northside Superintendent Brian Woods in an interview with the San Antonio Express News editorial board Wednesday. “One would be to ignore a local health order, and in doing so likely put our students and staff and families at risk, or lose funding, which is essential to teaching and serving our families.”

At a school board meeting Tuesday night, Woods indicated he and other superintendents would consider filing a lawsuit seeking to keep their classrooms closed longer if necessary. Paxton’s decision to step into the fray weeks before the school year begins has prompted more questions than answers, including whether a deluge of lawsuits is expected to hit Texas courts demanding health mandates be revoked or enforced.

Emphasis mine, and see here for the background. The Chron’s Jacob Carpenter tries to make sense of this hash.

What is the impact of Paxton’s letter?

Paxton’s letter is not legally binding. The only way the local health authority orders can be negated is through an executive order issued by the governor or a judge’s ruling in a lawsuit.

As of now, Abbott has not issued an executive order declaring that local health authorities cannot mandate school closures, and nobody has filed a lawsuit challenging the local closure orders.

As a result, at this time the school closure mandates issued by local health authorities are legally valid and enforceable.

What did Morath do Tuesday?

Hours after Paxton published his letter, Morath issued new guidance saying public school districts risk losing state funding if they keep campuses shuttered solely as a result of a local health authority closure order.

Districts still can require students with at-home technology access to remain in online-only classes for up to the first eight weeks of the school year. School boards also can push back their school start dates.

If local school closure orders are legally valid, why did Morath say districts risk losing state funding if they follow closure orders?

Morath cited Paxton’s letter in issuing the new guidance on school funding.

“As a state agency, we will follow the Attorney General’s guidance,” Morath said in a statement. “Consequently, a blanket order closing schools does not constitute a legally issued closure order for purposes of funding solely remote instruction for an indefinite period of time.

However, another section of TEA guidance says the agency will continue to provide funding to districts that are forced to close campuses by an entity “authorized to issue such an order under state law” — and as of now, local health authorities have issued legal orders.

Essentially, the TEA has provided two potentially conflicting pieces of guidance.

Who can clear up this conflict?

The simplest answer: Abbott.

At any time, Abbott could issue an executive order that negates all local health orders, or he could announce he will allow the orders to stand.

Abbott has made no move in either direction.

Asked multiple times by the Houston Chronicle earlier this month whether he planned to allow local health officials to order school closures, the governor’s office never directly answered the question. Abbott’s staff also did not respond to a request for comment Tuesday following the release of Paxton’s letter.

Yes, our Governor continues to be basically useless. At this point, the best advice seems to be just wait and see what happens. Maybe Abbott revises his executive order. Maybe all the school districts and county health authorities cave. Maybe someone (or multiple someones) files a lawsuit – unfortunately, one of those someones is gonna be Jared Woodfill, so prepare yourself for the stupid – and a judge makes a ruling that forces the issue one way or another. It’s still the case that schools don’t have to open till September 8, which is what HISD is doing, and the first six weeks after that can be online-only. It’s after that it gets dicey. So sit tight and wait to see how it gets sorted out.