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Abbott, other top GOP state leaders say local health authorities can’t preemptively close schools

School boards have final authority to decide when, how schools should open, Abbott, Patrick say

AUSTIN, Texas – Gov. Greg Abbott and other top Texas Republicans sided with Attorney General Ken Paxton and the Texas Education Agency in a joint statement on Friday, saying local public health officials do not have the power to preemptively close school campuses amid the COVID-19 pandemic.

The statement, released by Gov. Greg Abbott, Lt. Gov. Dan Patrick, Texas House Speaker Dennis Bonnen, Senate Education Chairman Larry Taylor and House Education Chairman Dan Huberty, appears to cut the legs out from a local health directive that would keep Bexar County school campuses closed until after Labor Day, Sep. 7.

While local health authorities may close a campus in response to an outbreak, according to Friday’s statement, they “do not have the power to issue preemptive, blanket closures of schools weeks or months in advance of when a school may open its doors to students.”

“The authority to decide how schools will safely open this year, again, lies with local school boards. It can be with students in schools, it can be through remote learning, or a combination of the two. In making that decision, school boards have the ability to base their decisions on advice and recommendations by local public health authorities but are not bound by those recommendations,” the statement said.

TEA has given school districts up to eight weeks after the start of school for a “transition period” when it can conduct class through remote-learning only. After that, the district is supposed to allow students back on campus. The school board can close a campus for up to five days, though, if there’s a positive COVID-19 case at the school.

TEA’s latest guidance, dated July 28, also says waivers for additional closures not related to positive COVID-19 cases on campus would be considered on a case-by-case basis.

But the local public health officials’ ability to close schools down has been debated for the past two weeks, amid mixed messages from the TEA and legal opinions from Paxton.

On July 17, the Texas Tribune reported TEA had confirmed it “would continue to fund school districts that didn’t open classrooms due to a local health mandate, as long as they were remotely educating all students.”

That same day, San Antonio Metropolitan Health District Medical Director, Dr. Junda Woo, who is the public health authority for Bexar County, issued such a mandate. Her “health directive” forbid students from returning to Bexar County campuses until at least after Labor Day - effectively requiring remote learning until that date for any area schools in session.

Paxton has issued two opinions since then, undermining the power of Woo’s directive, and any like it. First, on July 17, he said religious schools were exempt from local orders that would close their campuses and then, on Tuesday, July 28, that local health authorities could not issue sweeping orders to close schools “on a purely prophylactic basis.”

TEA updated its guidance for schools on Tuesday to mirror Paxton’s latest opinion. Now, TEA says any school that only conducts remote-learning because of a “blanket order” to close schools would put its funding at risk.

Mayor Ron Nirenberg and Judge Nelson Wolff sent Abbott a letter on Wednesday asking him to weigh in on the issue.

“We saw the very confusing statements and additional contradictions made by the attorney general, and the TEA did a complete 180,” Nirenberg said during the nightly briefing on Wednesday. “The one person that can iron out this whole mess is the governor. So we have asked him to reinforce the message and the authority of our local public health authority or rescind the directive - one or the other.”

Abbott’s response wasn’t what Nirenberg had hoped for, though.

“We saw this pattern play out two months ago. Local leaders implement health based protocols, the AG threatens them, and the state capitulates. We know where that got us,” Nirenberg saidin a statement provided by a spokesman. “It is troubling that the state would allow the same mistake twice by not putting science and evidence-based protocols at the forefront in making crucial decisions on dealing with COVID-19.”

Speaking with KSAT via Zoom on Friday, Wolff said Abbott is the “final arbiter” on the issue, and to his understanding, districts would be able to decide when open their campuses for in-person instruction instead of abiding by Woo’s directive.

“The health director can still, you know, give them advice, is my understanding,” Wolff said. “So I think that they will pay some attention to what she has to say.”

Most public school districts in San Antonio have opted to begin the school year with remote learning until Sept. 7, per the directive, and spokespeople for both Northside ISD and San Antonio ISD said their district’s reopening plans remain unchanged.

North East ISD Superintendent, Dr. Sean Maika, said he was pleased with the statement from Abbott and the other Republicans.

“I am pleased they have decided to grant more flexibility to individual districts so that we can use our local context to make the best decisions for our students and staff, and that there is the potential to not lose funding,” he said.

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