Timothy Higus

Senior Editor

Loyola University School of Law, JD 2022

For almost a year, schools have been reacting to the unprecedented circumstances that Covid-19 has caused. Most of the mitigation efforts thus far have been at the direction of state and local governments. Only recently have federal agencies given clear and substantial guidance on how to get students back into the classroom. Schools have largely fallen into three categories — in-person, remote, or a blended model that involves students doing some classwork at home and some at school. Some schools moved to increase their in-person learning and some have had to retrace their steps when positivity rates were too high, either in the school or in the larger community.

The CDC & ED guidance

On January 21, 2021, President Biden issued an executive order encouraging the Center for Disease Control (“CDC”) and the Education Department (“ED”) to issue guidance to schools to promote a return to in-person learning for all students. The White House is listing its priority being the health and safety of children, students, educators, families, and communities. Its second priority is to have every student in the US receive a high-quality education, during and beyond the pandemic. He asks the two agencies to provide advice to State, local, Tribal, and territorial education agencies about distance, hybrid, and in-person learning.

The CDC reacted with guidance in early February. The guidance takes the position that “K–12 schools should be the last settings to close after all other mitigation measures in the community have been employed, and the first to reopen when they can do so safely. Schools should be prioritized for reopening and remaining open for in-person instruction over nonessential businesses and activities.” The guidance really prioritizes on two mitigation efforts that have become a part of everyday life – mandatory face coverings and six feet of distance. Additionally, the guidance suggests proper hand sanitation, contract tracing, and sanitation of facilities are also key mitigation strategies. To the disappointment of some, it merely suggests that vaccination of school employees and screening of students and staff are additional mitigation layers, but not necessary. In addition to the mitigation efforts, the guidance also provides new indicators that help inform school decision makers when to shift their instructional methods. This is seen as a part of a dynamic strategy that will ebb and flow with the community transmission rates.

The ED also issued the first of several handbooks to help schools implement the CDC guidance effectively. It begins with a summary of the CDC guidance, but then provides strategies for safe in-person learning. For example, the handbook gives guidance on how to assist students that would not be medically tolerant of a mask or who cannot afford to wash or wear a new mask each day. It also offers strategies to increase and maintain social distance such as moving unnecessary furniture out of the room, limiting the number of students in a class, “podding”, and strategic desk placement. In addition to the effective implementation of mask and social distancing rules, it also discusses the issues of non-classroom settings such as lunch, recess, transportation, and extracurricular activities.

Guidance or regulation

Of course, this guidance is merely — guidance. This is not a lawfully promulgated binding regulation with notice and a comment period. These recommendations are non-binding, urging schools to follow state and local rules. However, the agency purports to establish a “one-stop-shop” for the scientific information to guide their school reopening strategy. However, some critics still say that the guidance makes it too difficult for schools to open. They specifically criticize the use of community spread metrics to determine when it is safe to keep schools open, citing research that these metrics are flawed and that they are set too low.

Six or three feet debate

Additionally, the topic of whether six feet of distancing is necessary or if three feet is sufficient is a hotly contested issue. The CDC and ED guidance calls for six feet, contrary to findings by the World Health Organization that if the baseline risk was low, more than three feet of distance does not yield an additional benefit. Some states such as Indiana, Massachusetts, and New York,  as well as local requirements, are lowering their standard to three feet. This conflict of guidance will lead to debate over best practice.

Another major issue is whether the CDC and ED guidance that suggests six feet of distance “to the greatest extent possible” is implied permission for schools to systematically design school reopening with only three feet of distance or whether the words “to the greatest extent possible” are merely a grace zone for times like passing periods. Additionally, when contact tracing, the CDC’s standard for close contact has been “within six feet for fifteen minutes or more.” Schools that are following the three-feet standard for social distance will need to quarantine students much more frequently because a student who tests positive for Covid-19 may have a wider impact on the surrounding students.

Burden on schools and employees

Many hurdles exist for schools moving forward. How to deal with lunch, how to get teachers vaccinated, how to pay for ventilation components, what to do about extracurricular activities are just a few. While the guidance may be helpful, it may also create unnecessary obstacles to reopening.

Further, these recommendations may not comport with state and local regulations, and in some cases may be directly contradictory. More states are passing and proposing bills mandating that schools open for in-person instruction with little regard for the metrics set forth by this guidance. The ED Senior Advisor for Policy and Planning, Donna Harris-Aikens, did not have a clear answer for this issue when interviewed by EdWeek. However, assuming that the local regulations have the force of law and the CDC/ED guidance does not, the answer seems clear.