Montgomery County health officer rescinds order closing private schools

St. Bartholomew's Catholic School
in Bethesda

One of the most bizarre weeks in Montgomery County political history ended yesterday with Health Officer Travis Gayles rescinding his latest order closing private schools through October 1. Gayles knocked over a hornet's nest a week earlier with a similar order issued in the dark of night as the weekend began. Parents filed a lawsuit seeking an injunction against the order. Maryland Gov. Larry Hogan rebuked County officials, and issued his own order blocking the County from declaring a blanket closure of private schools. Gayles rescinded his first order, and then issued a second one based on a different Maryland law. As the week ended, County officials ignored a tepid memo from the Hogan administration, and were moving aggressively to shutter private schools as some began to announce they would start the semester online-only.

The aggressive stance County officials had taken Thursday made their capitulation Friday appropriately bizarre, in keeping with a turbulent week that made national headlines, with Montgomery County a topic on cable news. Gayles said he decided to rescind his order after reading the memo from the Maryland Secretary of Health. But that memo was issued more than 24 hours prior to Gayles announcing he was rescinding the order.

What is clear is that virtually all of the deliberation about the whole matter has taken place behind closed doors, out of public view. If the County had no legal standing, why did it issue the order in the first place? The County has often broken the law and prevailed in court virtually every time. What did they fear would happen this time?

Many believed the move was to stanch the outflow of Montgomery County Public School students to private schools this fall. MCPS had projected it would register 2500 new students for the fall semester. Instead, only 300 had signed up by mid-summer. Parents who felt their children were ill-served by MCPS online instruction last spring sought the in-class instruction many private schools will offer this fall. Student athletes sought private schools where they could still impress college scouts, where MCPS has cancelled sports this fall. And MCPS has been in a steep decline since 2010, no longer considered a premiere school system.

It's unclear what the week-long Kabuki theater by the County accomplished, other than riling up a new group of residents into political activism. Parents may or may not remember that the County Council supported the closure of private schools when they vote in 2022. A few schools and a few students may have changed plans, but ultimately County officials lost more than they gained.

Gayles issued a new order yesterday. It does not force private schools to close, but basically says it is unsafe for them to open, and that they will operate over his objections. The order essentially gives Gayles ground to say, "I told you so," if there is an outbreak of Covid-19 at a private school this fall. However, many have pointed out that summer camps and daycare programs have been operating all summer without a reported outbreak. If the outcome is anything like the run-up, we can be sure it will be unpredictable.

Montgomery County appears to have upper hand on private schools closure order until court date

Our Lady of Good Counsel High School

Tepid state response comes amid some

private schools' decisions to accept 

online start to fall semester

Is the newest order by Montgomery County Health Officer Travis Gayles closing private schools through October 1, 2020 legal, in light of Maryland Gov. Larry Hogan's own order forbidding such blanket closures of non-public schools? We likely won't even begin to know the answer to that question until it gets its first courtroom hearing a week from today. But Montgomery County's aggressive approach, and one state official's tepid response to it Thursday, appears to have given Montgomery leaders the upper hand in the interim.

A few private schools have begun switching gears amidst the impasse, announcing they will begin their fall semesters online, rather than in-class. This may demoralize some opponents of the County's order, if their students enrolled in those schools can't have in-person instruction before October anyway. Some Catholics have criticized the Archdiocese of Washington for not making a more forceful stand against the closures of their schools, while others have said Catholic leaders are most effective negotiating quietly behind the scenes.

But a response from Hogan putting the County in its place that many opponents hoped was coming from Annapolis yesterday never arrived. In its stead was a letter from Maryland Secretary of Health Robert R. Neall. Rather than threaten legal or law enforcement action against County officials for violating Hogan's express order, it simply laid out "the State of Maryland's position" on the matter. The letter reiterated Hogan's order that counties may not institute blanket closures of all private schools, but that health officers retain the authority to shut down individual schools in violation of CDC and Maryland Health Department protocols on reopening of schools. Montgomery County promptly ignored Neall's letter and proceeded forward.

Perhaps the state's low-key response is strategic ahead of the upcoming legal battle. But in the short term, it appears Hogan will not take immediate action to enforce his order. That leaves parents to continue to be the primary opposing force for at least another week. It also leaves the outcome in the hands of the judge in a courtroom, a place where Montgomery County Government almost never loses, it must be noted. If Montgomery County's order isn't legally airtight, they're sure acting like it is - and in the absence of action from Annapolis, they aim to take a knee and run out the clock.

With the overall goal being about protecting enrollment numbers at Montgomery County Public Schools amid an exodus of students as much a public health, the luxury of no strong opposition from Annapolis is a winning hand. That time ticking away, and the uncertainty, is already having an impact on some private schools' plans.

"The way forward for Good Counsel is to focus on stability," Our Lady of Good Counsel High School President Paul G. Barker said in a statement yesterday, announcing the school will begin the semester online. "We have just over a week to faculty orientation, two weeks to freshman orientation, and three weeks to the first day of classes for all. We have waited as long as we can to provide our teachers and families a clear path for the start of school."

Montgomery County digs in to fight parents with new private schools closure order

Bullis School in Potomac

Order again prohibits

private schools from opening

through October 1

Montgomery County officials moved aggressively Wednesday to signal they will fight private school parents on the question of whether private schools will be allowed to open for in-person instruction this fall. County Health Officer Travis Gayles was heavily criticized for issuing an order late last Friday evening prohibiting private schools from opening through October 1, 2020, and then hiding from the local media until Monday. Maryland Gov. Larry Hogan (R) first criticized the County's order, and then issued his own order prohibiting any Maryland county from issuing a blanket closure of private schools. A group of private school parents then filed a lawsuit against Gayles' order. Despite this, Gayles issued a new order last evening, again blocking 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.

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Hogan issues emergency order prohibiting blanket closure of private schools by Montgomery County

Maryland Gov. Larry Hogan (R) has issued an emergency order prohibiting Montgomery County from closing private schools this fall. The order, which applies to all counties, states that opening and closing decisions during the pandemic are to be made by local education authorities. Hogan's order asserts that private and parochial schools have the same authority to determine their ability to open, and that Montgomery County Health Officer Travis Gayles exceeded his authority in issuing his order late Friday evening.

"Over the last several weeks, school boards and superintendents made their own decisions about how and when to reopen public schools, after consultation with state and local health officials," Hogan wrote in a statement accompanying his emergency order. “Private and parochial schools deserve the same opportunity and flexibility to make reopening decisions based on public health guidelines. The blanket closure mandate imposed by Montgomery County was overly broad and inconsistent with the powers intended to be delegated to the county health officer."

After initially stating his opposition to Gayles' order over the weekend, Hogan has now taken action, entering what has become a contentious fight between private school parents and Montgomery County. The Republican governor, who has had to navigate a majority-blue state political sphere for two terms, is widely expected to be a candidate for president in 2024.