Texas AG Ken Paxton: Only school officials can decide to keep schools closed, not health authorities


AUSTIN (KXAN) — Texas Attorney General Ken Paxton says that local health authorities can make some rules as schools reopen, but that they don’t have the power to keep schools closed.

In a statement on Tuesday, Paxton issued guidance for the 2020-21 school year, which has led districts statewide with many decisions about when and how to open during the ongoing COVID-19 pandemic.

Paxton’s office states that health authorities can address specifics about outbreak of diseases, but that doesn’t include, in his opinion, closing schools for the sole purpose of preventing future infections.

That decision, Paxton says, lies with school officials only.

“Education of our children is an essential Texas value and there is no current statewide order prohibiting any school from opening,” Paxton said. “While local health authorities may possess some authority to close schools in limited circumstances, they may not issue blanket orders closing all schools on a purely preventative basis. That decision rightfully remains with school system leaders.”

The Texas Education Agency issued guidance for school reopening on July 17, which included a four-week virtual learning transition period with the option of an additional four weeks if approved by the district’s school board.

On Tuesday, the TEA updated its 2020-21 Attendance and Enrollment FAQ to reflect Paxton’s guidance, saying that local educational agencies that are closed by blanket orders from local health authorities will not have their solely remote instruction funded as long as the order stands.

The TEA says:

“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. 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. However, another valid funding exception may apply, such as a start-of-year transition period as described further below, that would be available to the LEA if it did not offer on-campus instruction.”

Local responses

The City of Austin:

“The Health Authority’s school closure order was a control measure issued in coordination with Travis County Superintendents. The purpose of the order is to protect the health of the public. The City of Austin will continue to work closely with school officials and leaders to ensure the health and well-being of our children, faculty, and staff.”

Austin ISD:

“Austin ISD has worked closely with Austin Public Health and with the guidance of state and local officials to create plans to safely welcome our students back to school next month. As we continue to frequently receive updated guidance, our leadership will review and update plans that best fit our community’s needs.”

Round Rock ISD:

“In Round Rock ISD we appreciate the flexibility granted by the Attorney General, however we do believe relying on the expertise of local health authorities is critically important as we make decisions that could affect the health and wellbeing of our 51,000 students, 7,000 staff members and their families. As educators, we believe the best place for our students to learn is on campus, in our classrooms, and that the academic, social and emotional benefits of being with their peers and participating in all public schools have to offer is incalculable. But we must weigh that with the risk that now exists and we will do everything we can to prioritize the safety of our community. To do that, we must rely on the guidance of health experts to navigate these unprecedented conditions.” 

Paxton’s previous weigh-in on school re-openings

Earlier this month, Paxton issued an open letter to religious private schools, saying that local health orders that try to restrict their re-openings violate U.S. and Texas constitutions and the Texas Religious Freedom Restoration Act.

Paxton said:

“In accordance with the protections granted by the First Amendment and Texas law, this guidance allows religious private schools to determine for themselves when to reopen free from any government mandate or interference.”

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