State education and higher-education authorities

Summary

The education authorities are appropriate governmental authorities in the plain sense of the Suspension Clause: a State board of education holds constitutional or statutory supervision and control over every public school in the State, a State education agency enforces its rules through recognition and funding, a public university's governing board is a State instrumentality with plenary power over its campuses, and each used that power in 2020 and 2021 to limit group meetings (the school day, the lecture hall, the athletic contest) and the commerce that depends on them. 2020 Q2. The Idaho State Board of Education, invoking Idaho Const. art. IX, s. 2 and Idaho Code s. 33-116, directed every district and charter school to implement a 'soft closure' of all classroom facilities from March 23, 2020 (Ex. 002), extended it on April 6, 2020 'to the end of each school districts and charter schools 2019-2020 academic school year or until such time as local and state social distancing orders have been lifted and re-entry criteria established by the Board have been met' (Ex. 003), and fixed the re-entry criteria on May 4, 2020, the first of which was that 'no statewide stay-home orders are in place' (Ex. 004). The Oklahoma State Board of Education closed every accredited public school on March 16, 2020 and on March 25, 2020 'unanimously approved an order that implements a Distance Learning Plan to complete the 2019-20 school year for Oklahoma students without reopening school buildings' (Ex. 038). The Illinois State Board of Education adopted the emergency rule 23 Ill. Adm. Code 5.10 (Ex. 030), under which 'the State Superintendent may declare a requirement to use Remote Learning Days... for the entire State' and 'during Remote Learning Days, schools must conduct instruction remotely'; the State Superintendent declared Remote Learning Days statewide from March 31, 2020 'until in-person instruction can resume' (Ex. 033) and issued the remote-learning recommendations that fixed the instructional thresholds (Ex. 012). The New Mexico Public Education Department's closure directive was the stated basis of the New Mexico Activities Association's cancellation of the 2020 spring sports season and State championships (Ex. 039). In higher education the State University System of Florida's Board of Governors directed on March 17, 2020 that 'remote instruction will continue through the end of the Spring semester at each state university and students who can return home should return home' (Ex. 027); the University of California's President reported the closure of the Office of the President and the transition of the system 'to working and studying remotely' under the Bay Area shelter-in-place orders (Ex. 051); the California Community Colleges Chancellor issued Executive Orders 2020-01, 2020-02 and 2020-07 suspending withdrawal, grading and work-experience regulations for the suspended terms (records 018-020); the Iowa Board of Regents received the institutional heads' April 30, 2020 report on revenue loss and increased expense (Ex. 065). 2020 Q3 and Q4. The reopening frameworks that governed the 2020-21 school year were issued by the education agencies, with force where the Governor's order incorporated them: the Illinois Part 3 Transition Joint Guidance of June 23, 2020 (Ex. 011), made mandatory by Executive Order 2020-47 (Ex. IL-020), required face coverings, prohibited more than fifty individuals in one space, required symptom screening and social distancing; the Texas Education Agency's SY 20-21 Public Health Planning Guidance (Ex. 010) required every school system to post a mitigation plan, to screen staff, to exclude symptomatic persons and to 'comply with the governor's executive order regarding the wearing of masks' (GA-29); the New York State Education Department's reopening guidance of July 16, 2020 (Ex. 016) fixed the mandatory elements of every reopening plan, including face coverings, distancing and daily engagement reporting, and required each district to attest to them by July 31, 2020; the Massachusetts Board of Elementary and Secondary Education adopted 603 CMR 27.08 (Exs. 007, 068), the emergency regulation under which the Commissioner issues binding health and safety requirements and every district must submit a plan with in-person, hybrid and remote models; the Idaho Back to School Framework (Exs. 005, 006) set the category-based expectations for reopening. The California Department of Public Health's Institutions of Higher Education guidance of August 7, 2020 (Ex. 009), issued under the Blueprint and Executive Order N-60-20, provided that 'for counties on the State County Data Monitoring List for three consecutive days, indoor lectures are prohibited' and that in-person activities with external groups 'are not allowed at this time.' Athletics were suspended by the associations under the State orders: the New Mexico Activities Association postponed every fall sport on October 12, 2020 'strictly based on the orders set forth by the Office of the Governor' (Ex. 040); the Michigan High School Athletic Association cancelled the 2019-20 winter and spring seasons and moved football to spring before reinstating it under the September 2020 executive orders (records 041, 042, 053, 054); the California Interscholastic Federation moved every sport to a two-season calendar and postponed Season 1 on December 1, 2020 under the Regional Stay at Home Order (records 023-025). The Utah Department of Health's public health order of November 8, 2020 required every public institution of higher education to test every student who lived on campus or attended one in-person class 'at least once every fourteen days' (Ex. 046). 2021 Q1 and Q2. The California Department of Public Health's Outdoor and Indoor Youth and Recreational Adult Sports guidance (Ex. 015) governed competition by county tier through June 15, 2021: 'any tournaments or events that involve more than two teams are not currently permitted in California'; 'teams must not participate in out-of-state tournaments.' Massachusetts 603 CMR 27.08, as amended February 23 and May 25, 2021 (Exs. 007, 068), fixed the hours of live instruction required of hybrid and remote models and the Commissioner's authority to determine when remote models 'shall not count toward meeting the minimum structured learning time requirement.' 2021 Q3. The 2021-22 masking and quarantine regime for schools was issued in significant part by these authorities: the Virginia State Health Commissioner's Order of Public Health Emergency Ten of August 12, 2021 (Ex. 029), 'requiring all individuals aged two and older to wear masks when indoors at public and private K-12 schools'; the Illinois State Superintendent's August 11, 2021 enforcement letter (Ex. 032) that Executive Order 2021-18 'has the force of law,' that 'noncompliance is not an option,' and that the State Board 'has and will use its regulatory authority, pursuant to 23 Ill Admin. Code 1.20,' with probation, nonrecognition, 'total loss of access to state funding' and loss of athletic eligibility as the sanctions; the New Mexico Public Education Department's COVID-19 Response Toolkit of July 26, 2021 (Ex. 050) and its emergency rule 6.12.15 NMAC of August 12, 2021 (record 049) on masking, testing, reporting and quarantine; the Massachusetts Board's August 24, 2021 vote under 603 CMR 27.08 authorizing the Commissioner's universal mask requirement (Ex. MA-071; record 048). Every one of these instruments limited group meetings in terms and limited the commerce of the employers that serve schools and campuses: child-care and tutoring providers, food-service and transportation contractors, bookstores and vendors, event and athletic-facility operators, and the parents in every industry whose workforce availability depended on the school day.