Without specifying what’s changed, North Carolina officials say there may not be legal action against Union County schools after a highly-charged dispute about masks and student quarantining escalated to the state’s top health official urging the school board to take action.
In a statement from N.C. Department of Health and Human Services on Friday — the day after department Secretary Mandy Cohen gave an ultimatum to Union school board members — spokeswoman Catie Armstrong wrote: “Our attorneys have had productive conversations with attorneys for the Union County Board of Education, and we are hopeful that we can avoid further legal action.”
It had been unclear, and still is, what Cohen intended to do if the school district did not rescind its recently-adopted policy to effectively suspend contact tracing and subsequent quarantines in schools.
The coronavirus pandemic has brought countless disruptions to American life, and a chief one of those — an intense strain on the basic functioning of government — is playing out in full force in Union County, a mixed suburban-rural county southeast of Mecklenburg. More than 41,000 students are enrolled in Union County Public Schools — one of only five districts in North Carolina where board members have defied the widely-agreed-upon best practice that adults and children wear a mask indoors to stymie outbreaks of COVID-19.
A dispute between the school board and the local health director is raging. Parents on both sides of the issue say they are emotionally exhausted. Children, meanwhile, are caught in the middle.
The dispute over COVID-19 protocols in Union County Public Schools raises questions about who has legal authority to implement disease protection measures for school children — and who has the will and the manpower to do so.
For example, if county elected officials adopted a mask mandate for the public, schools would need to follow it, and quarantine numbers, based on state guidelines, would shrink. But when Union County officials gathered with health leaders earlier this week, they made no such move.
Cohen, and the local health director, wield broad authority to close down or force changes at businesses, campuses or events that pose an “imminent threat” to public health — but Union’s health director has not hinted that would happen, and Cohen’s 5 p.m. Friday deadline, by Friday afternoon, looked like it would pass without further legal action.
Where things stand
The events in Union County — where neighbors and public officials can so bitterly disagree with each other that key safety measures are simply abandoned — are quintessential COVID-19 politics playing out in North Carolina and across the country.
The disputes naturally elevate to higher authorities — in this case, to Mandy Cohen.
Cohen, the state health secretary, threatened legal action in a letter if district officials did not re-implement disease protection protocols by the end of the week. Her letter alludes to several possible avenues of enforcement, but stops short of describing the legal action in detail or telling the district what authority she’ll wield to get it done.
School board members reacted with a shrug, choosing not to call a special session Thursday or Friday.
As the dispute festers, schools in adjacent counties serve as a reminder that the disruption in Union County could have been avoided, or at least minimized. Across the Charlotte region, nearly every school is requiring masks, unlike Union County.
Because of that, a single case of COVID-19 in a school triggers the need for widespread quarantining. In addition, the district has been using longer quarantine periods than other places and than is generally required. In Union County, if a student or staff member is exposed to the virus, the district has been instructing them to stay home for 14 days — instead of the seven or 10 day-period other public school systems have used.
In the squabble with health officials, Union school board members have blamed the local health director for the longer two-week quarantine protocol — but extensive advice and instructions for shorter isolation and quarantine policies has been available for education leaders in North Carolina for weeks.
In counties with mask mandates, children wearing masks often do not have to quarantine even if they’ve been close to someone who contracts the virus. In Union County, though, those children were isolating because they don’t have the protection of face masks.
The result in Union County has been an astounding number of children unable to go to school.
When the board made its decision to halt quarantine and contact tracing protocols, more than 7,000 kids were quarantined with less than 1% of those having COVID-19. The numbers were so alarming that parents reached out to the board and demanded that their children be put back in school. The school board chairwoman, and others, have also pointed out that district leaders and school nurse staff were incredibly strained in the task of identifying who a sick student may have been close to at school and notifying families of the need to stay home.
That’s when the state stepped in, furious that the school system would abandon such key parts of the public health safety net.
Fight over quarantines
Melissa Merrell, the Union County school board chairperson, said in a statement to the Observer that those measures are the local health department’s responsibility, not the district’s. She insisted that the school system is legally forbidden from implementing those programs, although the state has not cracked down on any other district for doing the work themselves. Additionally, board members continue to be steadfastly against a mask mandate that would almost certainly lower the number of children forced to isolate.
Union County school staff will still report any positive cases to the Union County Health Department and provide information as required by the health department, Merrell said.
“Without the local health department using its lawful authority ... the health department has placed UCPS in a position where we cannot continue to effectively contact trace or mandate quarantine,” she said.
Dennis Joyner, Union County’s public health director, told the Observer in a statement that school nursing staff “are uniquely positioned to assess and better understand potential close contact scenarios in the school setting.”
“With our limited capacity, the resulting efforts will be less efficient and consistent,” he said. Local health departments, like schools, have been strained throughout the pandemic, and taking on the quarantining and contact tracing responsibilities for a school district of more than 40,000 would amount to a significant burden.
By NC statute, the primary responsibility for contact tracing belongs to public health officials. However, by law, certain parties are required to provide those officials with necessary and relevant information to assist them in communicable disease control. Additionally, contact tracing direction outlined in the Strong Schools toolkit, developed by NCDHHS and adopted for use in all North Carolina public schools by the NC Department of Public Instruction, notes that contact tracing responsibility is a shared responsibility.
According to the tool kit, K-12 schools are supposed to be doing case investigations and “excluding cases and contacts from school activities.” The tool kit makes it clear that the responsibility of contact tracing and case investigation should be shared between schools and the local health department.
An expert at the University of North Carolina-Chapel Hill who specializes in state public health law told the Observer that beyond the tool kit, and according to general state law, a school principal does have the legal responsibility to cooperate and ensure control measures are being followed.
The state weighs in
Cohen’s threat of legal action is grounded in statute.
North Carolina law “requires all persons to comply with communicable disease control measures” handed down by the state, according to a report by Jill Moore, an associate professor of public law and government at the UNC School of Government.
Those control measures are disease-specific and must comply with “a detailed body of administrative law” that has emerged to regulate that power, Moore wrote. In the case of COVID-19 protocols, Cohen would appear to be backed up by the authority of implementing disease control measures, including in schools.
That said, Cohen’s letter emphasizes the toolkit, which is primarily a list of recommendations for schools, not a cut-and-dry guide of how schools across the state should operate.
With every month that has passed since lifting pandemic executive orders and a statewide mask mandate, North Carolina has largely operated on the hope that schools would voluntarily comply with its recommendations.
The letter might be a more forceful way to achieve voluntarily compliance, said Andrew Taylor, a political science professor at North Carolina State University who specializes in government processes.
“Maybe we would win in court, it’s not clear,” Taylor said, speaking from the perspective of the state. “But at least if we threaten legal action we might get the desirable outcome through exerting political pressure.”
If that doesn’t work, the state has other options, including filing an action in the superior court or issuing an imminent hazard order.
Using imminent hazard authority, the DHHS secretary or a local health director are allowed to make changes at properties where a substantial health hazard exists. After giving notice, the official may “take any action necessary to abate the imminent hazard,” according to statute.
It’s unclear what that would look like in a school, though, and even more unclear how this legal dispute will play out generally, said Jon Guze, a senior fellow for legal studies at the John Locke Foundation who specializes in North Carolina law.
Guze also pointed to a section of statute that states that people who violate public health orders can be charged with misdemeanors.
“People are going to have to litigate to find out” what power Cohen has in Union County schools, Guze said.
In other words, what happens next for COVID-19 safety in Union County schools could depend on a judge weighing in.
Message to Cooper: ‘Step in’
Parents like Dr. Angie McCray, a pharmacist who has three children and another one due in February, wants the board of education to bring back COVID-19 protocols or mandate masks. She’s written emails to state senators and Cooper and appeared on CNN this week.
“The board has given themselves the power to implement whatever guidelines they want without regard for public health safety,” McCray said. “It has been hard to send (my daughter) knowing there wasn’t a mask mandate. Then, this week took that concern (elevated) to another level.”
On Monday, the school board’s 8-1 vote to halt contact tracing and most quarantine measures, brought the thousands of children quarantined back to school “effective immediately.”
One girl who sits besides McCray’s daughter in class returned from quarantine recently. That girl has a brother at home that is positive, she said.
McCray said she’s seen healthcare workers who are mentally and emotionally exhausted.
“They are crying and tired when they get home,” McCray said. “Decisions like this past Monday that the board made are a slap in the face to the medical providers that are working as hard as they can to take care of people in our community.”
McCray’s message for the state health department and Cooper: “We need you to step in. We need you to help protect public health that is being compromised. COVID doesn’t care if you are a Republican or a Democrat. Everyone will pay the price for not having masks, contact tracing, and quarantine protocols in place. We need your support to help control the spread of COVID-19.”
But on the other side, Moms for Liberty-Union County launched an aggressive email campaign Thursday to lobby Cohen, Cooper and Dr. Elizabeth Cuervo Tilson, the state health director. Members of Moms for Liberty emailed and called state officials, making it known that they would “stand strong against state overreach” and back the decision made this week by the school board.
“Moms for Liberty 100% supports our BOE’s decision to place the burden of contact tracing and quarantine back where it belongs on the health department,” said Britney Bouldin, the chairman of Moms for Liberty-Union County. Bouldin has three children in UCPS.
“Our school nurses were very overworked doing a job that wasn’t theirs to do. It’s the job of the health department and that’s where it always should have been.”