Who has the power to reopen, close schools in Pierce County — and will they use it?
As frustrated families await word on when their kids can go back to school in person, a fundamental question has arisen in Pierce County: Who has the authority to make that call?
Generally, health and school officials agree that school districts can decide what they want to do — whether that’s continuing remote learning or starting in-person classes.
But health officials play a huge role in what they decide.
At the end of the day, state guidelines put the power in the hands of county health directors like Tacoma-Pierce County Health director Dr. Anthony Chen to prevent schools from returning for in-person learning if that could be deemed a threat to public health.
According to state law, a local health jurisdiction has authority to set guidelines or requirements relating to public health that schools and districts must follow when their school facilities reopen. School administrators are obligated to cooperate with investigations, directives and orders of the local health officer.
“If a local health officer determines that the opening of a school or the continuation of in-person learning poses an imminent public health threat to the community, they have the legal power and duty to direct or order an interruption of in-person learning,” states the Department of Health’s “Decision Tree for Provision of In Person Learning among K-12 Students at Public and Private Schools during the COVID-19 Pandemic.
Chen took a tougher stance on remote learning in July by “requiring,” not just “recommending,” that schools start the school year with remote learning but stopped short of using his authority for an official public health order.
Most recently, though, Chen said school districts would make the final call about when kids could return to the classroom, drawing from the state’s Decision Tree, which also states: “school administrators are ultimately responsible to establish appropriate education services.”
It’s led to some confusion.
Karen Sande, whose granddaughters attend Purdy Elementary in the Peninsula School District, summed it up when she posted on the Key Peninsula Facebook page Oct. 28.
“There is a time when all parents and families need to have a voice and ask the School Board, who is making the decisions?” she wrote.
Months of back and forth
It’s not always easy for school leaders and parents to tell who’s in charge.
A recent example occurred in the Peninsula School District when Superintendent Art Jarvis announced earlier this month that kindergarten and first graders, who had been learning in person since the end of September, would be returning to remote learning as COVID-19 cases rose across the state.
Jarvis has been arguing for months that the Gig Harbor and Key Peninsulas, which have had relatively low COVID-19 rates, should be considered separately from the rest of the county, but said he had not been able to persuade Chen.
“TPCHD has local control over the county as a whole and will not make exceptions for specific areas within the county,” Jarvis told families in a Oct. 23 email.
The Peninsula School Board had some strong words for Chen.
“It’s my opinion that he just doesn’t care,” Peninsula school board member David Olson said at a board meeting on Oct. 22. “It’s his way or the highway.”
Families who wanted school to reopen wrote letters to the health department, asking it to make an exception for Peninsula, prompting a response from Chen.
“We explicitly communicated to Superintendent Jarvis, the Peninsula School District, and all school districts and private schools in Pierce County that the school district or private school will make the final decision,” the health department said in a statement on Oct. 26.
It added, “They do not need a waiver, variance or written permission.”
Peninsula has expressed interest in working with the health department in a new COVID-19 testing pilot program for rural school districts, announced on Oct. 29. The pilot will help districts decide whether to hold in-person classes by testing school populations to identify cases of COVID-19 and prevent outbreaks, according to health officials.
Recent dueling announcements from Peninsula and the health department over the status of the pilot program is one example of months of back and forth between school districts and the department.
On July 23, Chen penned a letter to Pierce County school district leaders, saying he “does not feel it is safe” to reopen for in-person learning in the fall. While Pierce County public schools said they would follow the health department’s recommendations, some private schools continued moving forward with their reopening plans.
On Aug. 11, Chen sent a note to schools stating he was “not simply recommending” but requiring schools to begin the fall with distance learning.
Private schools did an about-face.
“This is a disappointment following Governor Inslee’s press conference where he stated that there would not be a state mandate ordering remote instruction, but a recommendation based on the levels of community transmission,” said Charles Wright Academy head of school Susan Rice said in a letter to families on Aug. 11.
Chen’s letter even led to a lawsuit from one Charles Wright family, who argued that TPCHD and Chen “violated the required administrative procedures for a proper health directive” and “ignored the current and pre-eminent scientific and medical information regarding the health of school-aged children in the face of the novel coronavirus.”
Darrell Cochran, lawyer and father of the family issuing the lawsuit, asked a judge to determine that Chen’s requirement “is not legally enforceable,” he said in an Aug. 25 article.
For Chen, a legal order is a last resort.
“I prefer not to order people, because most people see it as punitive, and schools are great partners of us, whether it’s during COVID or not during COVID,” Chen said in an interview with The News Tribune on Thursday.
What Chen has to say
Chen said he doesn’t feel the need to force his hand to get people to follow COVID-19 safety protocols.
“I don’t tell them how to run their schools and how to educate their kids,” Chen said Thursday. “I think what we do is we try to work collaboratively with the schools.”
Chen used tuberculosis as an example. He said that in the worst-case scenario, the health department has arrangements where if someone refuses to take TB medication and spreads infection to the community, he could write a health order, have that person arrested and placed into jail.
“I’ve never had to do that, and I’ve been here 12 years,” Chen said.
He wants the same to be said of COVID-19.
Chen said he is going to make decisions based on what is best for public health.
“There have been situations where families have told me, ‘Yeah, we thought about suing you, but we decided not to,’” Chen said. “It’s like, ‘OK, thank you for sharing that. It’s not going to affect how I take care of you.’ And as your public health official in Pierce County, I’m gonna do the best I can to take care of the health of Pierce County. And not only to protect the health but to improve the health and I’m going to do that regardless.”
Chen said he expects the same of school leaders.
“No one is in education because they don’t care about kids,” he said. “Everyone in education is committed to kids just like my staff. … Educators and administrators are leaders, and they will make the right decision ... I have full trust in them that they’re making the right decision. That’s why you’ve heard us say to the schools you know the final decision is yours.”
Superintendents want to follow health experts
Despite Chen’s contention that school leaders have the final say, larger school districts in Pierce County say that, whether by recommendation or order, they’ll follow the health department’s lead.
“We’re education experts, not health experts,” Tacoma Public Schools Superintendent Carla Santorno said in a statement to The News Tribune on Thursday. “From the beginning of this pandemic we have stated that we will rely on the guidance, recommendations and orders of the health authorities to ensure the safety of our staff and students.
“We will continue to do so. If Dr. Chen tells us the COVID-19 cases remain at levels too high to safely bring students into schools, whether that comes as a recommendation or an order, for now we plan to follow it.”
Puyallup School District, like many others, isn’t inclined to go against guidance from health officials.
“We understand the health department provides guidance and that we have local control to make final decisions,” spokesperson Sarah Gillispie told The News Tribune on Thursday. “It would be negligent, however, for us to make decisions that go against health expert recommendations. We are committed to opening in-person instruction as soon as possible. Community health and guidance provided by the TPCHD will impact our decision to move from phase to phase. We are not health experts and will continue to rely on our local health department to guide us in our decision making.”
Bethel Superintendent Tom Seigel said in a phone call Thursday his district also would follow recommendations from local health officials, even if it’s not a legal order.
“They have expertise we do not have,” he said.
Seigel added that Chen does have the ability to put out a medical order if “things get really bad” — for example, 400 or 500 of cases per 100,000 people, rather than the 132 for Pierce County as of Nov. 2 — but said he understands if Chen might not want to.
“It’s kind of like the nuclear option — you don’t want to use it if you have other options available,” Seigel said.
“I have a great degree of empathy for him in his current position, and respect for the action he’s taken,” Siegel added. “He’s in a difficult position.”
When asked if having a legal order from the health department to remain in remote learning would reduce a district’s liability, Seigel said it doesn’t really matter — districts still have painted-on targets.
“We have liability if we hold school, if we don’t hold school,” he said.
The best they can do is follow the health experts, Seigel said.
“What we’re doing is a reasonable course of action based on facts,” he said.
What the state has to say
The Office of the Superintendent of Public Instruction is leaving it up to local districts partnering with health departments on when students return to school.
“Local school districts and health jurisdictions are encouraged to work closely to determine when, and to what level, schools should reopen during the COVID-19 pandemic; and this has been happening across the state,” communications director Katy Payne said in an email.
The Governor’s Office referenced the Decision Tree guidance in saying schools need to collaborate with local health departments on opening and closing.
Mike Faulk is deputy communications director for Inslee.
Faulk said the Decision Tree was intended to be flexible to allow schools in the outer region of a county to be considered differently than those in more concentrated areas.
“High risk is high risk,” he said on Friday. “Beyond that, however, I don’t think it’s our place to speculate on whether specific local decision-making in this instance is ‘good’ or not.”
Peninsula Gateway editor Kerry Webster contributed to this report.
This story was originally published November 5, 2020 at 5:05 AM.
