1. 1 Assessing Legal Preparedness for School Closure in Response to Pandemic Flu or Other Public Health Emergencies James G. Hodge, Jr., J.D., LL.M. Associate Professor, Johns Hopkins Bloomberg School of Public Health; Executive Director, Center for Law & the Public’s Health August 3, 2007

2. 2 Acknowledgment and Disclaimer  Acknowledgment This project is funded by the Centers for Disease Control and Prevention Public Health Law Program through a cooperative agreement with the Center for Law and the Public’s Health.  Disclaimer Information in this presentation does not represent the official legal positions of the Centers for Disease Control and Prevention or state or local governments and is not meant to provide specific legal guidance or advice. Users should contact their legal advisors for specific legal guidance concerning the scope and extent of the laws authorizing school closures in any state.

3. 3 Principal Objectives  The Role of School Closures In Response to Pandemic Flu Terminology U.S. children in schools School closure as prevention mechanism State pandemic flu plans  Center Project Goals and Methodology  Major Findings and Conclusions

4. 4 Terminology  Meaning and use of the phrase “school closure” in this presentation School closure generally entails class cancellation, student dismissal, and/or control of the physical building. Its precise meaning in a particular situation will be determined by the laws of the appropriate jurisdiction.  Alternative meanings Cancellation Evacuation Dismissal

5. 5 U.S. Children in Schools  Over 48 million students enrolled in 98,000 public schools nationwide  Over 6 million students are enrolled in private schools  88% of school-age children enrolled in public schools, including 87% of PreK- 8 th grade children, and 91% of adolescents enrolled in grades 9-12 Source: National Center for Education Statistics, based on 2003 data

6. 6 School Closure as Prevention Mechanism  Increasing social distances among children may reduce disease transmission (WHO Writing Group 2006)  Modeling analyses suggest that school closure may potentially reduce the incidence rate among children by over 90% (Glass et al. 2006)  School closure is part of a comprehensive U.S. strategy to control the spread of disease as reflected in state pandemic flu plans

7. 7 School Closures - Examples  Inclement weather – Schools closed in Maryland due to winter storm (February 14, 2007); Schools closed in Tucson, Arizona because of fog and snow (January 22, 2007)  Violence – School shootings prompt closure in Ohio (December 18, 2003)  Threats to general safety – Phone threats result in school closure in Harrison, New York (March 27, 2001)  Disease outbreaks – Rhode Island Schools closed due to encephalitis outbreak (January 5, 2007); Maryland School for the Blind closed after the spread of an unknown virus (November, 2006)

8. 8 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK Pandemic Influenza Plans and School Closures Plan recognizes school closure: 47 RI MA Plan does not recognize school closure: 4

9. 9 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK Pandemic Influenza Plans and School Closures - Legal Authority RI MA Plan does not cite legal authority to close schools: 42 Plan cites legal authority to close schools: 9

10. 10 Center Project - Premise  The premise is that there is sufficient, clear, and specific legal authority to close schools in preparation for or response to pandemic flu.  This premise, however, is uncertain.  Centers for Disease Control and Prevention (CDC) requested the Center for Law and the Public’s Health (Center) to prepare a comprehensive analyses of school closure laws nationwide

11. 11 Center Project Goals  Assess the laws, regulations, and policies that authorize school closures for extended periods [up to 12 weeks] at the state and local levels during non-emergencies and declared emergencies;  Identify departments, officials, or other persons authorized to close schools; and  Assess the criteria and potential conflicts among government actors to close schools

12. 12 Methodology - 1  Presumptions Every state has some general public health powers during non-emergencies that could be used to close schools or other facilities Every state has broad public health emergency powers to close schools Every school district/board has some inherent authority to close schools

13. 13 Methodology - 2  Focus of the Center’s Research 1.Express, specific authority to close schools in non-emergencies and declared emergencies 2.For an extended period of time 3.In response to an actual or potential spread of disease or other public health threats

14. 14 Methodology - 3  Rationale for assessing specific legal authority for school closure: 1.To move beyond general authorities (e.g., communicable disease laws) and look specifically to express authorizations 2.To pre-identify potential gaps or other impediments to systematic school closure across jurisdictions 3.To limit the potential for conflicts among or within jurisdictions regarding school closure

15. 15 Methodology - 4  Limitations - the Center’s analysis does not address: The timing or appropriateness of school closure decisions with respect to the epidemiology of disease transmission, severity, or its potential introduction The specific legal route to school closure in jurisdictions with multiple options The accountability of governmental actors in the use (or non-use) of school closure authority in response to actual or potential public health threats

16. 16 School Closures During Non- Emergencies  School closure laws during non- emergencies include provisions that: Expressly authorize school closure due to disease or epidemic – 17 jurisdictions Authorize school closure to protect the public’s health – 10 jurisdictions Authorize school closure for other purposes – 22 jurisdictions

17. 17 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK School Closures During Non- Emergencies Express authorization to close schools due to disease or epidemic: 17 RI MA

18. 18 School Closures During Non- Emergencies  Expressly authorize school closure due to disease or epidemic - Ohio “During an epidemic or threatened epidemic, when a dangerous communicable disease is unusually prevalent, or for any other imminent public health threat as determined by the board [of health], the board may close any school and prohibit public gatherings for such time as is necessary.” R.C. 3707.26A

19. 19 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK School Closures During Non- Emergencies RI MA Express authorization to close schools or facilities to protect the public’s health: 10

20. 20 School Closures During Non- Emergencies  Authorize school closure to protect the public’s health – Idaho “The Director [of the health department]… may order the closing of any public, parochial, or private school, or other place of public assembly when, in his or her opinion, such closing is necessary to protect public health.” IDAPA 16.02.10.015(5)

21. 21 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK School Closures During Non- Emergencies RI MA General authority to close schools for other purposes: 22

22. 22 School Closures During Non- Emergencies  Authorize school closure for other purposes – Maryland “The final decision of a local board of education to close a school shall be announced at a public session and… shall include the rationale for the school closing and address the impact of the proposed closing on the factors” MD ADC 13A.02.09.01(A)-(D)

23. 23 Departmental Authorization During Non-emergencies  School closure laws during non- emergencies: Empower the public health department or a public health officer to close schools – 30 jurisdictions Empower the education department or a school board/superintendent to close schools - 24 jurisdictions Empower the emergency management department to close schools – 0 jurisdictions

24. 24 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK Level of Governmental Authorization During Non-Emergencies RI MA State Department: 27

25. 25 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK Level of Governmental Authorization During Non-Emergencies RI MA County, City, or Local Departments: 37

26. 26 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK Level of Governmental Authorization During Non-Emergencies RI MA State and County, City, or Local: 14

27. 27 School Closures During Emergencies  School closure laws during declared emergencies include provisions that: Expressly authorize school closure due to disease or epidemic – 7 jurisdictions Authorize the utilization or closure of facilities or property – 48 jurisdictions Authorize the evacuation of persons from threatened areas – 45 jurisdictions

28. 28 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK School Closures During Emergencies RI MA Express authorization to close schools due to disease or epidemic: 7

29. 29 School Closures During Emergencies  Expressly authorize school closure due to disease or epidemic – Wisconsin “The [school] board may close any school or dismiss any class in the event of an emergency…or epidemic.” W.S.A. 119.18(6)(b)

30. 30 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK School Closures During Emergencies RI MA Authorization to close/utilize facilities or properties (including schools): 48

31. 31 School Closures During Emergencies  Authorize the utilization or closure of facilities or property – Kansas The governor may “utilize all available resources of the state government…and utilize any private property if the governor finds such action necessary to cope with the disaster.” K.S.A. §§ 48-925(c)(2), (4)

32. 32 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK School Closures During Emergencies RI MA Authorization to evacuate persons from threatened areas (including schools): 45

33. 33 School Closures During Emergencies  Authorize the evacuation of persons from a threatened area – North Dakota The governor may “[d]irect and compel the evacuation of all or part of the population from any stricken or threatened area within the state if the governor deems this action necessary for the preservation of life or other disaster or emergency mitigation, response, or recovery.” NDCC 37-17.1-05(6)(e)

34. 34 Departmental Authorization During Emergencies  School closure laws during emergencies: Empower the public health department or a public health officer to close schools – 9 jurisdictions Empower the education department or a schoolboard/superintendent to authorize school closure – 6 jurisdictions Empower the emergency management department or Governor to close schools – 51 jurisdictions

35. 35 CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT ME DC MD NHVT PR - (Puerto Rico) HI AK Level of Governmental Authorization During Emergencies RI MA State Department: 52

36. 36 Major Conclusions  Explicit authority to close schools during non- emergencies is lacking in many jurisdictions [24]  Multiple departments may be authorized to close schools [31 – public health; 24 – education; 5 – dual departments]  Wide differentiation of levels of government responsible for closing schools [30 – state; 36 – local; 15 – dual levels]  Major shift of authority to close schools once an emergency is declared  Lack of assessment criteria on the appropriateness of school closure

37. 37 Major Conclusions  While there are legal avenues to close schools in virtually every jurisdiction in non-emergencies and emergencies, variations in legal authority across jurisdictions may lead to: Potential disagreements concerning the responsibility, timing, and duration of school closures Consideration or balancing of competing interests Delays

38. 38 Acknowledgments  Many thanks to the following for their contributions to the research and presentation: Dru Bhattacharya, JD, MPH, Center Fellow Jennifer Gray, JD, MPH, Center Researcher P.J. Wakefield, Center Administrator

39. 39 For more information...  James G. Hodge, Jr., J.D., LL.M. (410) 955-7624 jhodge@jhsph.edu  Center website: www.publichealthlaw.net www.publichealthlaw.net  Thank you!