Attorney General Ken Paxton issued an opinion today regarding the legality of local public health orders that delay the start of in-person schooling, such as those entered in Dallas, Harris, Travis, and presumably Tarrant Counties. The Attorney General opined that “nothing in the law gives health authorities the power to indiscriminately close schools—public or private—as these local orders claim to do.” Specifically, the AG claims that the county orders impose a quarantine on property (the school buildings), which is not authorized under the Texas Health and Safety Code without evidence that the property is contaminated or that individuals within the building are actually infected with a communicable disease. The AG’s opinion does not address the authority of local health authorities to implement restrictions on individuals within the county.
The AG further opines that because conditions related to the COVID-19 pandemic are present throughout the affected counties, not just the schools, the local public health authorities cannot impose restrictions that only affect schools. The AG also claims that Governor Abbott’s Executive Order GA-28 allows schools to operate subject only to TEA’s guidelines, and that GA-28 supersedes any conflicting local order.
Interestingly, while the opinion declares that local health authorities cannot issue blanket orders closing schools in their jurisdiction on a prophylactic basis, it also notes that “[t]he decision to close schools on such a preventative basis—whether public or private—remains with school system leaders who should consult with relevant public health authorities, including the Department and local health authorities.”
What does this mean for school districts? Nothing for the moment. The Attorney General’s opinion is not a binding document. It does not overturn the county orders currently in place, so districts subject to those orders still need to comply with them as long as they remain in effect. Practically speaking, the AG’s opinion may prompt local health authorities to rescind their orders if they believe the AG is correct or could lead to the filing of lawsuits against local health agencies to overturn the orders. It could also prompt Governor Abbott to issue an executive order superseding those county orders. For now, school districts should operate in compliance with their local county orders, but be prepared to pivot as needed if the orders get overturned or rescinded. This, we know, is an exercise districts have been engaged in for many months, as orders and guidance from the state are issued, changed, and changed again. We wish we had the ability to stop the cycle and give you certainty. Unfortunately, all the AG’s opinion did today was put more uncertainty on the plates of school districts, which will remain until a court weighs in on the debate.
**Update: According to the Fort Worth Star Telegram, Tarrant County is abandoning its order requiring schools to remain closed until September 28th in light of the Attorney General’s opinion issued today. As of the time of this writing, we have not been able to locate an official statement or other confirmation from Tarrant County regarding this decision and the status of its order. If this report is accurate, then school districts in Tarrant County should follow TEA’s guidance regarding the timeline for reopening schools.