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Can the Government Force Schools to Reopen?

By Ashley Ravid on July 23, 2020

As July marches on, coronavirus-related conversation is increasingly turning to how, exactly, school will resume in the fall. Secretary of Education Betsy DeVos has maintained that the Trump administration wants students to return to the classroom rather than taking online lessons.

But as teacher's unions and some individual states like California urge caution in allowing in-person schooling to resume, one question persists: Can the government force schools to reopen?

Private vs. Public

Private and parochial schools do not rely on funding from the government, instead getting their revenue through tuition. They receive accreditation by federally approved independent agencies, but short of possibly stripping these agencies of accrediting power entirely, there's not much that the government can do in retaliation to private schools if they refuse to send teachers and students back to in-person learning.

Charter schools, however, can only remain open if their state government renews their contracts. Though not every state has charter schools, it is possible that if state authorities oppose a charter school's decision to teach classes online, that state could terminate the school's contract.

Public schools, as well, are vulnerable to the influence of state governments, which are their primary sources of funding.

Florida Governor Ron DeSantis recently passed an order that would force schools to return to in-person learning for the fall, though the Florida Educators Association and supporters filed a lawsuit to challenge this order. What the court decides may determine what schools have to do this fall.

Lawsuit Avoidance

If states such as Florida continue to require that schools reopen, the federal government may be able to step in by wielding its Commerce Clause powers. In South Dakota v. Dole, the Supreme Court ruled that the federal government can withhold funds from states until they comply with federal regulations for "the general welfare." Of course, Congress could also withhold state funding if they do not agree with schools not reopening — though both of these outcomes are unlikely.

Should students and teachers be forced to return to face-to-face schooling, one thing may put a stop to this fairly quickly: lawsuits.

OSHA has issued guidelines instructing employers to protect their employees from being infected with COVID-19, though there is no law in place. Regardless, anyone endangered by COVID-19 exposure at a school that has been required to reopen may have standing to file a lawsuit with the goal of a judge filing an injunction to halt the school's reopening.

If you or someone you know is concerned about a planned return to in-person learning, a lawyer may be able to help you navigate your options.

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