Updated at 6:42 p.m., July 28, 2020 with a statement from Texas Education Commissioner Mike Morath.
The Texas Education Agency is changing course with its guidance on public schools closed by local health orders, stating that those campuses will no longer receive full state funding for remote-only learning through the duration of those orders.
Texas Education Commissioner Mike Morath told superintendents about the change during a conference call Tuesday afternoon.
On July 15, TEA officials stated that the state would fund school districts if local health officials ordered their campuses shuttered because of COVID-19 concerns, as long as virtual instruction was offered. Current guidance, unaffected by Tuesday’s decision, is that all schools are afforded a four-week period to offer virtual-only instruction, with another optional four-week period.
Health authorities in other urban areas, such as El Paso, Laredo and Austin, had previously issued orders prohibiting in-person classes as they try to stop the spread of the new coronavirus. And health officials in Dallas County, prompted by the TEA’s initial funding decision, did the same, pushing back in-person classes until at least Sept. 8.
Tarrant County officials later followed suit, issuing a similar order that delays on-campus lessons for most students until Sept. 28.
The rationale for the TEA’s switch is based on a guidance letter issued by Texas Attorney General Ken Paxton earlier Tuesday. It says public health authorities delaying in-person classes can’t do so indiscriminately to prevent COVID-19 outbreaks they fear will happen at a future date.
“As a state agency, we will follow the Attorney General’s guidance,” Morath said in a statement.
While health authorities can make that call when responding to immediate outbreaks and quarantine needs, they can’t issue blanket orders keeping schools closed simply as a preventative measure, Paxton wrote.
“The 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,” he concludes.
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Paxton’s letter notes that nothing in existing orders from the governor related to COVID-19 would prohibit any school from opening.
“Indeed, the opposite is true,” Paxton wrote. “Religious services, such as those provided by religious private schools, and local government operations, such as public schools, are permitted to open and are excluded from any capacity restrictions.”
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He added that schools are required to follow guidance from the Texas Education Agency in order to open properly.
Paxton issued the letter in response to a request from guidance by Stephenville Mayor Doug Svien. The letter comes less than 10 days after similarly aimed guidance to private religious schools, saying that they “need not comply” with county health orders because such schools were an extension of churches, which were protected from closure under Gov. Greg Abbott’s executive orders.
“He’s doing the same thing he did last time, with respect to the format of this,” said Todd Webster, an education lobbyist with Austin-based HillCo Partners, the former mayor of Kyle and the former acting Texas education commissioner in 2012.
The communication to private religious schools, much like the one issued Tuesday, isn’t a binding opinion from Paxton’s office, Webster said. Instead, it essentially offers a possible legal argument to school districts if they desire to challenge a local or county health order.
Pushing back
Some parents and private schools have pushed back at the orders. On Monday, dozens of families protested outside of Tarrant County’s administration building while County Judge Glen Whitely met with parents to discuss their concerns.
Some parents from private schools indicated that their campus leaders weren’t able to give input on the order delaying in-person classes.
Language on the TEA’s website, in a Q&A about attendance and enrollment, pointed to Paxton’s letter as the reason why schools would not be funded for “solely remote instruction” for the time period of the order.
“The guidance letter further provides that health authority orders may not conflict with executive orders of the governor and must apply control measures required by statute,” the website read. “Consequently, a blanket order closing schools does not constitute a legally issued closure order for purposes of funding solely remote instruction as described in this document.”
As previously laid out by the TEA, districts would have the option to begin with virtual classes for four weeks, with an additional four-week period if approved by that school’s board of trustees. But in those extra four weeks, according to the TEA, “at least some on campus instruction must be provided each day during the extended transition period.”
The TEA “will also continue to adjust its waivers as the situation warrants,” Morath said in a statement. “Protecting the health of students, teachers, and staff remains our first priority.”
Dallas ISD Superintendent Michael Hinojosa, who took part in the call, said he didn’t know if he agreed with Morath’s assessment, given that Paxton’s letter wasn’t binding. DISD wouldn’t be impacted as much as other districts, he said, because of last week’s decision to move its first day of school back to Sept. 8.
“For other schools who didn’t do that, their clock starts immediately while still under the county’s orders,” he said.
Dallas County Judge Clay Jenkins said Paxton’s reasoning — that county health officials must have “at least a reasonable belief that infection exists on property before quarantining or imposing control measures on the property” — doesn’t hold up under the current conditions.
“That doesn’t make any sense,” Jenkins said. “We’ve got rampant spread in our community; we announced 15 deaths today. To say that a health order can only be made after an outbreak in that particular school, that does nothing to get confidence up for parents, and I think it’s wrong.”
Pressure to reopen
Superintendents across the state are frustrated and even more confused on what their next moves should be, said Kevin Brown, executive director of the Texas Association of School Administrators.
Districts have spent months planning for back-to-school openings in various scenarios. But now some may feel pressure to reopen on their original start dates — some of which were as early as next week — in order to receive their full state funding, Brown said.
“Now that leaves schools in a very tenuous place because it’s confusing for parents and teachers and school district leaders,” said Brown, adding that uncertainty could lead to a lawsuit.
If a school district wants to defy a county health authority’s order, the district may use Paxton’s letter as ammunition to do so. But then if a district does follow the order but doesn’t receive full state funding as a result of extending online learning, that district could then take its case to court, Brown said.
“Schools have been working tirelessly throughout the summer to get schools opened as safe as they can,” Brown said. “But the rules of the game keep changing from day to day and week to week. It’s exhausting.”
The Texas State Teachers Association issued a news release not long after Paxton’s guidance was released, stating that districts should follow local health authorities on closures, not the attorney general.
“Gov. Greg Abbott so far has yielded to the expert advice of health authorities charged with protecting lives and public safety,” said TSTA president Ovidia Molina. “Now, Paxton is sending a conflicting message to our school districts, students, parents and employees. This raises more questions about reopening schools safely instead of providing real guidance from state leaders.”
For private schools, Paxton’s letter could offer relief for those that are ready to open sooner than what health orders indicated. Because they are are smaller, the schools are able to pivot quickly to respond to needs, said Laura Colangelo, executive director of the Texas Private Schools Association.
”They can adjust with very strict health and safety standards,” she said. “I know of one school that has spent over $100,000 on electrostatic cleaners and plastic dividers, and they have cut enrollment in half. They are ready to serve the families who want their children back in school.”
Whether many public and nonsecular schools will alter their schedules based on Paxton’s guidance and the TEA change remains to be seen.
Eagle Mountain-Saginaw ISD — a 20,000-student district in northwest Tarrant County — announced Tuesday afternoon its plans to reopen its schools for in-person learning on Aug. 20, based on Paxton’s guidance letter.
EMS ISD is returning to its original plan to offer both in-person & remote learning options for students. Please visit our Reconnect 2020 website at https://t.co/uTcAyW9JCj to review the return to school plan & continue to follow our website & district social media for updates. pic.twitter.com/zF3whLd7Yw
— EMS ISD (@EMSISD) July 28, 2020
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