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The Return to School Amidst the Delta Variant

Texas Prepares Schools for In-Person Classes Amid Delta Variant Surge

The Delta variant sweeping across the country is presenting new challenges for Texas public school systems preparing for the return of in-person instruction.  Both the CDC and the American Academy of Pediatrics (AAP) have updated their guidance based on recent data regarding the highly transmissible Delta variant. As schools open, Texas public school administrators will be grappling with confusing and conflicting guidance issued by the CDC, AAP, and the Texas Education Agency (TEA).  While Texas Governor Greg Abbott encourages citizens to wear face masks and to get vaccinated, his most recent Executive Order, GA-38, strictly prohibits governmental entities, including school districts, from mandating face coverings. Texas school administrators providing in-person learning will need to be prepared for COVID cases on their campuses when unvaccinated and unmasked individuals return to campus.  It will be important for school administrators to stay abreast of guidance issued by their local public health authorities, the CDC, TEA, and AAP, so they may provide the most accurate and timely information to their school communities.  

What are the CDC, AAP, and TEA recommending for this upcoming school year?

Starting with the positive, the CDC, AAP, and TEA all acknowledge what school officials and parents have been saying for more than a year:  students benefit from in-person learning and the on-campus environment supports the social and emotional development of children.  However, the differences in guidance issued by these entities are related to face mask recommendations; in the case of the TEA, the differences lie in face mask requirements.  

The CDC has wavered in its mask guidance which has caused confusion and even anger.  Between April 3, 2020 and May 13, 2021, the CDC recommended the use of face coverings for all individuals (except for those with conditions that prevented the use of face masks). During the Spring of 2021, several Governors began removing mask mandates, including Governor Abbott who removed the State’s mask mandate on March 2, 2021. On May 14, 2021, the CDC revised its mask guidance providing that fully vaccinated individuals could forgo masks.  Since some states had already removed mask mandates, many people, vaccinated or not, began returning to their pre-pandemic lives, traveling, going to parties, restaurants, and bars without masks. The CDC’s May 14th guidance did little to change the behavior of Texans, they had already been freed from mask requirements, vaccinated or not. The CDC’s May 14th guidance was largely viewed as a way to encourage more people to get vaccinated.  The message was get vaccinated and you can leave your mask at home.  Unfortunately, it didn’t work and vaccination rates across the country continued to wane.  

On July 9th, the CDC updated its school guidance recommending masks be worn indoors by all individuals (ages 2 and up) who are not fully vaccinated.  On July 27th, the CDC updated its general guidance recommending that fully vaccinated individuals wear masks indoors in public if in an area of substantial or high transmission. The CDC says you live in an area with substantial or high transmission if your county has 50 or more new cases per 100,000 people over the past week or your county has an 8% positivity rate or higher.  

In a nutshell, the CDC’s current masking guidelines recommend all individuals wear a mask indoors in public places in communities with substantial or high transmission of the virus.  Presumably, the vaccinated may forego masks if they are in communities with low or moderate virus transmission. The AAP takes a simple no-nonsense approach. Its updated COVID-19 school guidance advocates universal masking for all persons ages 2 and up, vaccinated or not, and regardless of community transmission.  

Both the CDC and AAP recommend implementing coordinated strategies that include social distancing, COVID testing for students and staff, ensuring school buildings are well ventilated, encouraging frequent hand washing, and using enhanced disinfection and sanitizing practices.  Additionally, both entities recommend eligible individuals get vaccinated against COVID-19 however, the AAP goes a step further with its guidance stating schools should consider requiring students and staff to get vaccinated.  

Although TEA’s most recent guidance recommends school districts follow CDC guidelines, Texas public school districts may not require a student, employee, or visitor to wear a face mask. TEA’s brief guidance, less than 300 words in total, reiterates a district’s obligation to report COVID-19 positive cases to the local public health authority and the Texas Department of State Health Services but fails to address quarantine protocols.  Thus, at least for now, school districts should work with their local public health authorities to draft quarantine policies consistent with CDC recommendations.  

While there is data suggesting young children may not transmit the virus as readily as adults and some children may experience only mild illness, school districts should be prepared to deal with student and personnel absences.  Whether the illness is mild or severe, campus personnel must be prepared to address employee and parent concerns about maintaining the safety of in-person learning if an outbreak occurs.

Whether the surge of new cases and the Delta variant will impact Texas’ prohibition against mask mandates is uncertain.  School officials should, however, expect to see positive cases on their campuses when unmasked and unvaccinated students and school personnel return to campus.  Once a positive case has been found, school administers will need to address the same questions and concerns they faced last year: (1) whether the school or the health authority will notify “close contacts”; (2) which individuals should quarantine; (3) how long must an individual quarantine; and (4) what documentation if any, must a COVID-19 positive individual present before returning to campus.  

CDC’s current recommendations for quarantine after an exposure are based on vaccination status and whether the person is symptomatic.  TEA’s June 5th guidance while silent on quarantine protocols, recommends school officials review CDC protocols and recommends school officials consult with their local public health authority and their legal counsel when implementing its guidance.   

School administrators will face many of the same issues they faced last year.  Teachers, principals, custodians, bus drivers, and district administrators will be expected to keep students safe.  School superintendents will have the added responsibility of ensuring the safety of district personnel.  Schools may recommend and encourage the use of face masks but may not require students and personnel to wear them.  Schools may recommend and encourage eligible persons to get vaccinated but may not require them to do so.  Stay tuned.  The guidance and public health orders are subject to change. 

This is an image of Lisa Paul.
Lisa Paul, Associate Attorney; JCA