|Bullis School in Potomac|
Order again prohibits
private schools from opening
through October 1
The new order cites a different, very broad Maryland law to justify the closures, Maryland Code Annotated Health General § 18-208. However, this law states:
a)(1) When a health officer has reason to believe that a disease that endangers public health exists within the county, the health officer shall:
(i) Report immediately to the appropriate county board of health; and
(ii) With the approval of the board:
1. Investigate the suspected disease; and
2. Act properly to prevent the spread of the disease.
The County board of health in our case is the County Council. Gayles may "act properly to prevent the spread of" Covid-19 "with the approval of the board." So far, the Council has not taken a formal vote to approve the closure of private schools in Montgomery County. To the extent that the Council has discussed the topic at all, most councilmembers supported Gayles' original order. Councilmember Andrew Friedson (D - District 1) has attempted to have it both ways by sending Gayles a letter with questions about his decision, but did not rake Gayles over the coals when he testified before the Council earlier this week and had the opportunity, much less openly oppose the closure order.
Similarly, the Council does not wish to accept the political responsibility for closing private schools, and are glad to cede that role to Gayles, an unelected official who does not have to face voters in the 2022 elections. There's no question they support it, however, as the Montgomery County political cartel is demanding the private school closure.
Considering that Montgomery County Government virtually never loses in any courthouse located within the borders of Maryland (even when laws or County rules have been broken, as in the Westbard case), a judge might find the Council's verbal support and lack of action against Gayles' orders to be sufficient to say Gayles is acting "with the approval of the board." How Gayles' latest order can stand in the context of Hogan's order preventing a blanket closure of private schools is the biggest legal question, it would seem. Hogan has not yet responded with any new official action since the new County order was issued Wednesday.
The October 1 date is significant from a federal funding standpoint, not a health standpoint. That the County would take such an aggressive posture to ensure a closure through October 1 merely confirms that the exodus of students from Montgomery County Public Schools to private schools is significant and intensifying.
In fact, the closure order and successive media frenzy has been great advertising for private schools, possibly ending up as a backfire for those who sought to use the ban to stop the outflow of students seeking in-person instruction and athletics. Everything from MCPS funding to teacher salaries depends upon the enrollment numbers in the public school system, understandably leading those who will wind up losing from a mass flight to private schools pounding the panic button.
There is a legitimate question as to the risk to students, teachers, parents and the community at large that private schools opening would pose during the pandemic. But the legal questions as to the authority of the health officer and governor over the matter are likely to be resolved first, in the hours, days and weeks ahead.