Coronavirus and School Closures: What Are the Legal, Logistical Issues?

Dr. Robert Redfield, Director of the U.S. Centers for Disease Control and Prevention, testifies at a House Foreign Affairs Committee hearing on the status of the U.S. and international response to the global Coronavirus outbreak on Feb. 27, 2020, in Washington, D.C.
Dr. Robert Redfield, Director of the U.S. Centers for Disease Control and Prevention, testifies at a House Foreign Affairs Committee hearing on the status of the U.S. and international response to the global Coronavirus outbreak on Feb. 27, 2020, in Washington, D.C.
—Graeme Sloan/Education Week
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With President Donald Trump and top officials of the U.S. Centers for Disease Control and Prevention putting schools on alert that they should be taking steps to prepare for the coronavirus, educators and public health authorities have plenty to think about.

In particular, the prospect of closing schools to help block the spread of the deadly virus raises numerous legal and practical issues. Who has the authority to close schools? What should the geographic contours of any closures be, and for how long? And how will schools continue to educate students if they are forced to close?

Educators likely have begun to contemplate such questions given the serious threat of the pandemic, but some researchers and policy experts have studied these issues for years.

“I can’t emphasize enough that closing schools is not like turning a light switch on or off,” said James G. Hodge Jr., a professor of public health law and ethics at Arizona State University. “There are legal and logistical issues that are quite extensive.”


Special Collection: Coronavirus and Schools


In 2008, Hodge was a co-author of a research paper prepared for the CDC that examined the legal preparedness of states and local education and health authorities to respond to a pandemic flu or similar emergencies.

Among the conclusions at that time was that most states had multiple legal avenues for ordering the closure of schools, either through state or local education and public health authorities, and depending on whether a state of emergency had been declared.

“Our survey and characterization suggest that specific legal authority at the state level to close schools is ambiguous,” said the report. Hodge said in his interview with Education Week that the 2008 analysis largely holds up today.

The potential tensions over the issue was highlighted late in the week when a Seattle-area school district closed one of its high schools Thursday and Friday because a staff member had traveled overseas with a family member who became ill and was being tested for the coronavirus.

Administrators of the 22,000-student Northshore school district closed Bothell High School despite advice from local public health officials that the risk to students and staff members was low. The staff member’s relative was determined by late Friday to not be infected with the coronavirus and the high school was expected to reopen on March 2.

‘Non-Pharmaceutical Interventions’

School closures are one form of what public health officials call “non-pharmaceutical interventions” to a pandemic, which include quarantines, isolation, and prohibitions on large public gatherings.

The most prominent example of school closures came in response to the 1918-19 Spanish flu, which killed as many as 675,000 people in the United States and millions more around the world. Schools in dozens of U.S. cities were closed for as long as four months, a tactic that researchers have generally concluded was beneficial to stemming the spread of the disease.

Researchers have studied a more recent public health threat, the 2009 H1N1 (swine flu) virus, for lessons on school closures. Researchers at the University of Pittsburgh Graduate School of Public Health looked at that episode as the basis for analyzing state school-closure laws during a pandemic.

“The relatively mild transmissibility and severity of the 2009 H1N1 disease contrasts with the reasonable expectation that another, more virulent novel pandemic disease will occur in the future—one accompanied by surging demand for health-care services, lack of a vaccine, and high morbidity and mortality rates,” the 2012 study said with some degree of prescience.

The researchers used statistical modeling to attempt to answer questions about how soon schools should be closed if there was evidence of the pandemic, and for how long.

“Eight weeks was found to be the most optimal, from the disease transmission standpoint,” said Tina Batra Hershey, an assistant professor of health policy and management at Pitt and an adjunct professor at its law school. “If you close for too short a time and then reopen schools when there is a lot of risk of disease in the community, then you are putting students back at risk.”

Another co-author of the 2012 study, Bruce Y. Lee, wrote in Forbes this week that there were a number of considerations against closing schools in response to a pandemic such as the coronavirus, including the economic costs and the risk of simply moving students and others to other locations where they will mix.

“If a virus is already running around outside of schools, can closing schools in some way reduce the size or duration of an epidemic? Well, that depends on how long you close the schools,” Lee wrote, referring to the 2012 study and another he led for the U.S. Department of Health and Human Services.

School ‘Dismissals’

A number of public and private organizations have released practical guides for schools in recent weeks.

“It’s the perfect time for businesses, health-care systems, universities, and schools to look at their pandemic preparedness plans, dust them off, and make sure that they’re ready,” said Anne Schuchat, the principal deputy director of the CDC, at a Feb. 26 White House news conference about the coronavirus.

At the same news conference, Trump added, “Yeah, I think schools should be preparing and, you know, get ready just in case. The words are ‘just in case.’”

Most legal experts say the federal government—whether the president, the CDC, or some other agency—does not have the authority on its own to order school closures.

“From a federalism perspective, the feds could not tell the states they must shut down their schools,” said Hodge, the Arizona State professor. But he notes that the Trump administration “is proceeding in some different ways” in various areas involving expanded federal power.

“We can’t quite tell how this may go,” Hodge said.

The CDC issued interim guidance specifically for administrators of child-care and K-12 schools on Feb. 16. It urges those with identified “COVID-19” cases in their communities to consult with local health officials before deciding to close or “dismiss” facilities.

“Temporarily dismissing child-care programs and K-12 schools is a strategy to stop or slow the further spread of COVID-19 in communities,” the document says. “During school dismissals, child-care programs and schools may stay open for staff members (unless ill) while students stay home.”

On Friday, the U.S. Department of Education launched a coronavirus information page on its web site (www.ed.gov/coronavirus) for schools and school personnel, which includes links to CDC information and guidance on COVID-19.

The National School Boards Association on Friday published a legal guide for school districts regarding the coronavirus. The document will include lots of practical tips urging schools to meet with local health or state health authorities, develop plans for distance learning or even just assign homework in case schools were closed, as well as check their insurance policies, said Francisco M. Negrón Jr., the general counsel.

“These are going to be local decisions,” he said. “It makes sense for them to be local decisions.”

Negrón said that while much of the focus has been on students, school districts must also contemplate the potential impact of the pandemic and any closures on school employees, many of whom might be expected to continue working even if the schools were closed.

“Often a school district is the largest employer in an area, so they carry the weight of the community on their backs,” he said.

Ryan Tekac, the health commissioner of Mahoning County in eastern Ohio, said he has been in “constant contact” with the state health department since the coronavirus threat arose and is planning a meeting soon with school administrators from the dozens of districts in his county.

“The Ohio code gives us the authority to potentially close schools threatened in a pandemic,” he said. “But we are working with our school officials to make sure we have plans in place. We’re dissecting all the information.”

Vol. 39, Issue 25, Page 8

Published in Print: March 11, 2020, as Legal, Practical Issues in Coronavirus Shutdowns
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