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 and
the Public’s Health
December 11, 2006

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

3. 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-8th grade children, and 91% of adolescents enrolled in grades 9-12
Source: National Center for Education Statistics, based on 2003 data

4. 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

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

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

7. 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

8. 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

9. Existing and Emerging Products
Comprehensive tables on:
School Closure Laws (Table 1)
Summary of School Closure Law (Table 2)
Departmental Authorization for School Closure (Table 3)
Pandemic Flu Plans and School Closure (Table 4)
Case studies (forthcoming)
Report and scholarship (forthcoming)
National input

10. 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

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

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

13. Methodology - 4
Limitations - the Center’s tabular 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

14. 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

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

16. 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 A 

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

18. 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 (5)

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

20. 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 (A)-(D)

21. 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

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

23. 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 (6)(b)

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

25. 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. §§ (c)(2), (4)

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

27. 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 (6)(e)

28. 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

29. 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

30. Departmental Authorization During Non-emergencies – Public HealthWA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL
Department of Public Health: 30
PR - (Puerto Rico)

31. Departmental Authorization During Emergencies – Public HealthWA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL
Department of Public Health: 9
PR - (Puerto Rico)

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

33. Departmental Authorization During Emergencies - EducationWA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL
Department of Education: 6
PR - (Puerto Rico)

34. Departmental Authorization During Non-Emergencies – Public Health & EducationWA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL
Departments of Public Health and Education: 5
PR - (Puerto Rico)

35. Departmental Authorization During Non-Emergencies – Emergency ManagementWA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL
Department of Emergency Management: 0
PR - (Puerto Rico)

36. Departmental Authorization During Emergencies – Emergency ManagementWA VT NH HI AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT IA PA NE NJ NV OH DE IL IN CA UT CO WV MD KS MO VA KY DC NC TN AZ OK NM AR SC AL GA MS TX LA FL
Governor or Department of
Emergency Management: 51
PR - (Puerto Rico)

37. Major Conclusions
Explicit authority to close schools during non-emergencies is lacking in many jurisdictions [24]
Significant variations in the departments 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

38. 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

39. Acknowledgments
Many thanks to the following for their contributions to the research and presentation:
Dhrubajyoti Bhattacharya, J.D., M.P.H., Center Fellow
Jennifer Gray, J.D., Center Researcher
P.J. Wakefield, Center Administrator

40. For more information . . . James G. Hodge, Jr., J.D., LL.M.
(410)
Center website:
Thank you!