Atty Gen. Ken Paxton
Texas Attorney General Ken Paxton. Credit: Bonnie Arbittier / San Antonio Report

Texas local health authorities have the power to issue orders that control communicable diseases, but they don’t have the power to “indiscriminately close schools – public or private,” Attorney General Ken Paxton wrote Tuesday in new guidance.

Paxton’s guidance challenges orders already issued, including one by the San Antonio Metropolitan Health District that prohibits any in-person class from taking place until at least after Labor Day. Because of Metro Health’s order, most of San Antonio’s private and public school systems have already told families their students would not return to campus until after Sept. 7.

On its own, Paxton’s guidance is not legally binding. However, the Texas Education Agency added teeth to the attorney general’s argument hours after it was issued, updating its own guidance and informing districts they would not be funded if they keep campuses closed under a local health authority’s blanket orders.

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Paxton’s order and new TEA guidance contradicts school closure orders by Metro Health and similar health department orders in counties around the state, particularly populous ones where coronavirus cases have been rising over the past two months.

Current TEA guidance allows districts to delay in-person instruction for the first eight weeks of the school year. After that time, districts essentially will have to allow in-person instruction if they are to receive state funding.

“We still have the flexibility, I believe, at the beginning of the school year to start remote, but that’s part of our flexibility that has been granted by TEA, not really driven by the health departments’ orders in terms of getting the funding,” said Pedro Martinez, superintendent of San Antonio Independent School District. “So our plan is still unchanged.”

Martinez said his district will still start the year with three weeks of remote instruction and then bring smaller groups of vulnerable students onto campus after Labor Day.

“What I heard today is after our flexibility period ends, which is the first eight weeks, then we are right back to where we were before,” Martinez said, referring to a return to in-person instruction. “… If [districts] don’t have the ability to do that or don’t want to comply with that, then you risk your funding.”

In his guidance, Paxton stated that Gov. Greg Abbott’s order allowing schools to operate supersedes any local health order. The attorney general wrote that although a local health authority can quarantine a school, the authority can only do it under “limited circumstances.”

“Critically, local health authorities may not issue blanket orders closing all schools in their jurisdiction on a purely prophylactic basis,” 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.”

Paxton’s guidance and the TEA’s updated funding rules introduced even more confusion into the fraught issue of how to reopen schools as classes are set to resume in just weeks. Changing state guidelines and local interventions have left school districts, educators, and parents uncertain about what form instruction will take.

Trying to stay on top of the state guidance can be “maddening,” Northside ISD Superintendent Brian Woods said, describing Paxton’s guidance as another example of contradictory information.

Before the TEA issued its guidance but after Paxton issued his, Woods doubted the attorney general’s guidance would directly impact plans already in place. He called Paxton’s guidance “a set of legal arguments, not a formal opinion.”

However, Woods noted a change after the TEA updated its funding rules.

“I still don’t think [Paxton’s] opinion is legally enforceable but it doesn’t matter what I think,” Woods said. “It matters what the agency thinks and they think it is enforceable, so they’ve completely changed their guidance on virtual learning when you’re closed by a local health authority to essentially render that null and void.

“… The biggest issue is you’ve gone back to where we were, which is that local authorities – to include public health authors, actual doctors, epidemiologists – don’t have any say over how many students ought to be in a building. And that just seems to ignore the larger reality that we find ourselves in.”

City Attorney Andy Segovia said the City Attorney’s Office would review the new guidance and explore what legal avenues the City could take.

“Attorney General Paxton has brought nothing of value to our state’s response to a global pandemic, only confusion, contradiction, and chaos,” said Mayor Ron Nirenberg in response to Paxton’s action Monday.

Boerne ISD used Paxton’s guidance as backing to announce its two campuses in Bexar County will reopen for in-person instruction in August despite Metro Health’s order, which remained in place as of Tuesday night. The majority of Boerne ISD’s campuses are located in Kendall County.

Asked about Boerne’s decision, Bexar County Judge Nelson Wolff said the schools should still comply with the local health order and not open campuses until after Labor Day.

Emily Donaldson

Emily Donaldson

Emily Donaldson reports on education for the San Antonio Report.