Education Law

School Season and Swine Flu Fears

The school year has arrived! However, this year is different. There is an additional concern for parents, children and teachers - swine flu. This concern is so large that school officials have been trying to decide whether to delay school start dates. Since the outbreak of swine flu, more than a million Americans have been infected, and the numbers are expected to increase in the winter. As school officials determine the best way to deal with this outbreak, the big question becomes: To close or not to close schools? 

What Is Swine Flu?

Swine flu is the H1N1 viral strain of flu. It's been labeled swine flu because initial tests showed the virus is very similar to flu viruses carried by pigs. On June 11, the World Health Organization (WHO) declared swine flu a global epidemic - the first worldwide pandemic in 41 years. While the symptoms may be milder than the ordinary flu, it's extremely infectious and has the potential to cause more serious diseases.

How Have Schools Been Impacted?

Officials face a tricky issue when it comes to closing schools. Schools can become a breeding ground for the virus. Closing schools may seem like the best option, as was done last spring. However, the benefits to close schools must be balanced against the negatives: Loss of learning, lost wages for parents, lack of access to school breakfast and lunch programs for poor children and the danger of kids being left unsupervised. And there is still no guarantee children won't become infected.

School Closures Last Spring

Last spring, the appearance of the never-before-seen flu prompted more than 700 schools to temporarily close, giving students an unexpected vacation but forcing parents to find accommodations for their children. 

The Centers for Disease Control and Prevention (CDC) has been responsible for issuing school guidelines and information about swine flu. At first, the CDC advised that schools should close for about two weeks if suspected cases of swine flu appeared. Then, they released different information and advised schools not to close because the virus was milder than initially thought. Now, the CDC advises parents to keep sick kids home for at least a week. Education Secretary Arne Duncan said officials learned last spring the benefits of pre-emptive closure may often be outweighed by negative consequences.

The New CDC Guidelines

The CDC is trying to help school administrators with this vital matter by releasing up-to-the-moment instructions for closing schools because of the swine flu. So far, the CDC has posted four updates to their swine flu guidelines for schools. 

June 12, 2009 Update: In response to the WHO's announcement that a global H1N1 flu pandemic is expected, Education Secretary Arne Duncan and Health & Human Services (HHS) Secretary Kathleen Sebelius sent a joint letter to all schools in the US clarifying the current status of H1N1 planning. In their letter, the Secretaries explained the H1N1 virus is expected to persist into the fall and a vaccine is unlikely to be ready until weeks after the school year starts. They urged schools to reinforce their intervention planning, including those for increased cleaning measures, and policies are enforced for sending students and staff home with flu-like symptoms, or school closures for extended periods.

July 10, 2009 Update: At the July 9, 2009 Flu Summit held at the National Institutes of Health (NIH), Kathleen Sebelius said: "We can't afford to be unprepared."  She and other administration officials confirmed that the H1N1 pandemic flu shows no signs of going away over the summer and is expected to be with us into the fall or longer. A vaccine is anticipated in the fall and K-12 students and staff would be among the first groups to be vaccinated when it's ready since people 5-24 years old show the highest risk of H1N1 infection. The vaccine is likely to be administered in schools. 

July 31, 2009 Update: The CDC doesn't recommend dismissing students from school in response to H1N1. However, it could change its recommendations or some schools or school districts may not follow the current proposal based on local conditions. The CDC and the US Department of Education, along with state and local health and education agencies and national non-governmental groups, are starting a school dismissal monitoring system for the 2009-10 school year.

August 7, 2009 Update: Per the National School Boards Association: "The CDC has issued updated guidance for schools on H1N1 for the new school year: The guidance is intended to disrupt the spread of H1N1, especially among school-aged children where incidence rates are very high, and minimize disruption of the educational process. Schools are not advised to be closed, however, in anticipation that some schools may have to be dismissed for periods of time due to the heightened presence of H1N1 in the school population, CDC has developed a national reporting system that is synchronized with state health department reporting. In an effort to obtain the most complete and timely information on school closures, CDC asks that anyone and everyone report on school closures when they occur."

The guidelines are available at the CDC's Web site.

What Does the Latest CDC Update Mean?

Federal officials know more now about swine flu than they did last spring, when alarm and confusion led hundreds of schools to temporarily shut down. According to the last update, schools should only be closed in rare circumstances. Closing schools is rarely warranted, even if students or teachers have swine flu, said CDC Director Thomas Frieden. Sick students can return to school as soon as 24 hours after their fever is gone (a prior recommendation suggested 7 days). Also, because a vaccination is planned in the fall, the school openings won't be delayed and officials think the outbreak, especially after the vaccination, will be controlled. 

School officials also should be planning for online or telephone distance-learning programs in case schools are closed. In addition, schools should take a new precaution and set up a "Sick Room" to keep sick kids and staff away from their healthy classmates. It's suggested that the "sick" stay in this room until they can be sent home and that surgical masks be worn. 

When Should Schools Close?

There are only three situations that would justify school closure:

  • When swine flu emerges in a school where most or all of the children have special needs, such as a school for pregnant teenagers or for medically frail children
  • When large numbers of kids or staff come down with swine flu
  • When parents send sick, feverish kids to school despite advice from federal and local authorities to keep them home

The last scenario, parents sending their kids with fevers to school is what promoted dozens of New York City schools to close last spring. 

Whose Decision Is It Whether to Close or Not to Close Schools?

In the US, some matters are left for the federal government to decide and other matters are in the hands of states and local officials. However, in this situation, the local officials have been looking to the federal government for advice about this new flu epidemic. The federal government can't make a decision for all schools. There will be many disparities and different issues within different schools and states, therefore the decision is best left to the local level.  However, these guidelines serve as support. Local officials will still have the ability to make decisions for their schools.

Also, the vaccination decisions are left to local officials. Federal officials hope schools will play a major role in providing vaccinations, which public health experts consider to be the strongest defense against infection.

Potential School Liability

Swine flu is a relatively new phenomenon. While the regular flu season is responsible for some school closings, the vast number of people expected to be affected by the swine flu is causing schools to scramble. Besides making decisions whether to close or not to close, schools have to think about potential liability if students or teachers contact the virus and die.  Already, there has been a suit to this effect; an assistant principal was infected with swine flu from a student and died. His family is now suing the city of New York, claiming the school didn't do what it could to protect his safety and was negligent by not closing the school when they knew swine flu was present.   

If this epidemic is as bad as predicted, there are likely to be similar situations. Schools need some sort of assistance from the federal government with respect to making decisions.  Nonetheless, many concerned parents are criticizing the CDC for their decision to not delay the school openings until after the vaccine is distributed.

Questions for Your Attorney

  • Can local or state authorities require my child to be vaccinated for swine flu?
  • Can school officials require a doctor's note before my child returns to school from an illness?  
  • Is timely legal action available if parents or others in a community don't agree with how their school board is managing swine flu risks or outbreaks? 
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