With local school districts’ first day of class just weeks away, administrators and public education experts are anxiously awaiting state and federal guidance on protocols to curtail the spread of COVID-19 and its variants. Those protocols could range from physical distancing, to wearing masks, to mandating the choice of regular testing or a vaccine.
In a July 29 memo to district superintendents, principals and non-public school leaders, New York State Commissioner of Education Betty Rosa gave updates on what could be expected in the coming weeks for students.
“The urgency and frustration you are feeling as September approaches is palpable and is shared by the department,” Rosa said. “The overall goal for the 2021-2022 school year is to maximize in-person teaching and learning, be responsive to student needs, and keep students and staff healthy and safe. Be assured the department is engaged in continuing efforts to help develop and secure guidance to advance that goal.”
Keeping students and staff healthy will take a few safety precautions, some designated by Gov. Andrew Cuomo, according to Rosa. Though it would be best for such decisions to be made as soon as possible, the timeline for local districts to receive more clarity and inform their faculty, staff and students is unclear.
“While the nature and extent of COVID-19 and its variants are still dynamic, it is essential that schools receive whatever guidance the governor and the [Department of Health] intend to offer about the 2021-2022 school year as soon as possible to provide time for you to take necessary measures to safely welcome students in September,” Rosa said. “Therefore, the best the department can offer to schools when it comes to health-related preparations for September is that CDC guidelines should be the basis of preparing for the 2021-2022 school year until further information is issued by the governor or DOH.”
A new @CDCMMWR suggests vaccinated staff @PHLschools had 95% fewer #COVID19 infections compared to unvaccinated staff. This finding shows the importance of COVID-19 vaccination for school staff during the 2021–22 school year. More: https://t.co/hEaQoB11wb. pic.twitter.com/Om49wYUfI9
— CDC (@CDCgov) July 23, 2021
The most updated guidance from the Centers for Disease Control and American Academy of Pediatrics, along with encouragement from the White House, recommends all individuals older than 2 years old wear face masks indoors. Also strongly recommended is the vaccination of eligible populations.
Though Rosa said the authorization of remote instruction depends on DOH measures, her department’s position is that so long as allowed by officials, students should be in the classroom.
But in case of a declared public health emergency, schools must be able to provide remote instruction, Rosa said. Her department will not require schools to operate either way but said districts may work with students and families to offer remote options if it’s in the best educational interest.
Rosa also gave recommendations for statewide guidance to “consider the complexity of operating school environments” and use local discretion when possible. Wearing masks, physical distancing and coordinating with local health departments are all on the table.
Feelings of eager anticipation are shared by experts outside state government. Deputy Executive Director and General Counsel for the New York State School Boards Association Jay Worona is keeping his eye out for a guidance document from the DOH and led by Cuomo’s education staff.
“We were told that was coming out ‘soon,’” Worona said.
And as the start of the school year draws closer, education officials are inching towards answering the legality of one question in particular: mandating the option of either vaccines or frequent testing.
“There is a viewpoint in our case law that would suggest that we have to have the authorization specifically set forth in the law,” Worona said about public schools making a COVID shot mandatory for employees. “There isn’t any such specific authorization.”
“Many legal folks would say to you, well, therefore schools can’t impose mandatory vaccinations on their school employees,” Worona said. “They would need to have the state of New York either authorize them to make that decision, or which would be more likely than not, there would be a determination by the state [indicating] this is how all schools will operate.”
At a press conference last Wednesday, Cuomo hinted at “more aggressive action” from school districts facing rising rates of infection.
75.5% of adult New Yorkers have received at least one vaccine dose and 68.7% have completed their vaccine series (Per CDC).
-29,127 doses were administered over past 24 hours
-22,324,811 doses administered to date pic.twitter.com/eJwqRBE4eS
— Andrew Cuomo (@NYGovCuomo) August 2, 2021
“Trepidation and politics that stops aggressive action feeds the virus,” Cuomo said. “I understand the politics. But I also understand if we don’t take the right actions, schools can become super spreaders in September.”
But for enforcing the choice of a vaccine or regular testing, Worona acknowledged another school of thought.
“This vaccine right now has not gotten final approval,” Worona said. “People will say it’s against their civil liberties to require them to be vaccinated when the vaccine in question doesn’t have full FDA approval.”
“If you look at previous case law interpreting questions that have come before our commissioner or our courts, it’s pretty much said that districts only have the authority to do that which is specifically demarcated in the law,” Worona said, though he pointed out this situation has never been litigated.
“You will find no provision that gives districts the express authority to do this. There are those who will say in the absence of express authority, there is no authority.”