Paxton’s legal opinion on schools risks lives
The law should mean what it says. Rule §97.6(h) of the Texas Administrative Code says: “The health authority is empowered to close any public or private child-care facility, school or other place of public or private assembly when in his or her opinion such closing is necessary to protect the public health; and such school or other place of public or private assembly shall not reopen until permitted by the health authority who caused its closure.” This law was invoked by the Harris County Health Authority this month, directing that K-12 schools in the county start operations entirely online until at least Sept. 7.
On Tuesday, Texas Attorney General Ken Paxton wrote an opinion that effectively invalidated Harris County’s control order. The Texas Education Agency accepted the opinion, and said it will defund schools that follow the orders. On Friday, Gov. Greg Abbott added his backing.
While the attorney general’s opinions are non-binding, they are entitled to some respect. So too, though, is the plain language of the law. I believe Paxton has it wrong and that his opinion is likely to kill people.
As a policy matter, COVID-19 has left no perfect solution. While I agree that in-person schooling K-12 is important, the preconditions cited by its strongest advocates such as low community transmission rate and strong protection for teachers are regrettably absent in many parts of Texas.
The legal issue, however, is whether Texas law empowers local public health authorities to take those considerations into account to make closure decisions in their jurisdiction or whether, no matter how high the infection rate, it is central authorities like the governor who decide.
The law appears to be clear. The provision of the administrative code cited above gives the power to local health authorities. Despite this, Paxton concludes the law doesn’t mean what it says. He argues if read literally, the law would undercut limitations on the power of local health authorities he believes exist elsewhere in Texas law.
I wouldn’t give that argument a high grade. The “limitations” he cites would cripple local health authority’s power to effectively manage dangerous diseases that cannot survive on surfaces. More importantly, Paxton really can’t explain why Texas couldn’t give local health authorities, who have the authority to take steps such as quarantining an entire county, the (supposedly) limited powers that exist elsewhere and, just as the law says, the explicit power to close schools.
The factual assumptions underlying Paxton’s reading of Texas law are flawed. He writes before closing schools as a form of “area quarantine” (which isn’t the part of the statute the Harris County order relied on), the local health authority must demonstrate “reasonable cause to believe the school, or persons within the school, are actually contaminated by or infected with a communicable disease.”
That condition will exist the instant schools reopen. The active infection rate of confirmed places like Harris County is currently about one in 100, according to the Texas Department of Health and my own calculations. If it keeps growing as it has at 2 percent per day, it will be even greater when schools reopen. Even conceding that the infection rate is lower in school-age children, any school of 500 or more students is likely to have infections. Texas law doesn’t and shouldn’t require the local authority to wait for more funerals before taking action.
All of this creates a political and logistical mess. Students, teachers and parents are still confused about teaching modalities mere weeks before classes begin. Parents and teachers deserve the stability that comes with thoughtful local decisions uninfluenced by political coercion. If Paxton’s opinion, no matter how misguided, can’t be disregarded or overturned in the time before school opens, then those in Austin need to exercise their power grab responsibility. Until the infection rate retreats, schools in hot zones must be able to teach in ways that keep the prospect of future education alive.