Schools continue to face greater risks from the COVID-19 pandemic with limited options, as legislative changes have limited their ability to mitigate the spread of the virus.

The Delta variant has caused a rapid surge in new COVID-19 cases, as well as hospitalizations. These new cases are now being predominantly reported in people younger than 65, with children seeing more confirmed cases than ever before. As cases spread widely among children, exposures at schools are resulting in mass quarantines of school staff and students across the state

Pike County Schools announced Aug. 29 that it will be temporarily closed from Monday, Aug. 30, to Monday, Sept. 6, due to a large number of cases being reported in the county, as well as a large number of students and staff needing to quarantine. Superintendent Reed Adkins said that they will reevaluate the county’s COVID-19 situation with local health officials by Sept. 6 in order to decide if they need to extend the closure, and the district will need to make up the days at the end of the school year.

“We have several staff that are quarantined and it’s becoming almost impossible to actually offer and provide services for the kids during this time,” Superintendent Reed Adkins said. “The only people who will be working during this time will be our 240-day employees, and that includes your principals, your custodians, Central Office staff. What we’ll be doing is focusing on making sure everything is completely sanitized so we know that the buildings are extremely clean when the kids come back.”

Adkins said that the district is also currently developing a Virtual Academy option for elementary students in the district, and they plan to have it near completion around the beginning of September. There is currently a virtual option for high school students if they do not wish to attend school in-person.

So far this school year, the public school districts of Pike County, Leslie County, Lee County, Warren County, Knott County, Jefferson County and Fayette County, among others, have needed to close temporarily at least once due to mass quarantines and reported COVID-19 cases. In the past two years, there have been executive orders issued by Gov. Andy Beshear that went into effect to mitigate the spread of the virus statewide.

Legislative changes having impact

However, multiple legislative changes were enacted by the legislature in order to limit the districts’ ability to go fully virtual, and limiting any statewide mask mandates to be issued.

First, HB 208 was enacted, which limited the number of available NTI days for all school districts down to 10. School districts must request approval by the state in order to have more NTI days, which could affect the number of days that school years need to make up at the end of the year.

However, one of the most significant legislative changes that occurred this past session included Republican majority-backed laws, which limited the executive powers of the governor. Although Beshear promptly sued to challenge the measures after his vetoes of the bills were overridden, the Kentucky Supreme Court ruled last week in favor of the legislature’s actions, which they took to limit his emergency powers.

Dist. 31 state Sen. Phillip Wheeler said that he has an issue with Beshear’s executive orders related to the COVID-19 crisis, calling his actions a “one-size-fits-all” approach. He said that he believes decisions on mask mandates and virtual learning should take place at the district and county level, not at the state level.

“My position — and I don’t pretend to speak for the entire Republican legislature — is that these are local type decisions that, I think, the local superintendents need to have the discretion to be able to make,” Wheeler said. “I would say that the debate between Gov. Beshear and the legislature is that Beshear seems to think that a more one-size-fits-all approach should apply through his executive orders and that type of thing, while, I think, the opinions of most Republicans, including myself, is that these types of decisions are better made at a local level.”

However, Dist. 94 state Rep. Angie Hatton said that she believes the legislature “overreacted” to Beshear’s emergency powers by limiting them through legislation during the recent legislative session.

“In general, the majority legislature did overreact and tried to do too many things that limited the governor’s flexibility in an emergency, and we’re seeing the consequences of that now, in that we’re going to have to be called back into a special session in order to pass emergency regulations,” Hatton said. “The legislative process is just not conducive to emergency regulations.”

Executive powers limited

Due to this limiting of Beshear’s executive orders, his mask mandate for all K-12 schools has been challenged by Kentucky Attorney General Daniel Cameron, and Beshear said he is unable to issue a statewide mask mandate for all Kentuckians, like he did when the pandemic first began.

On Aug. 26, Beshear reported that hospitalizations have increased every day for the past 42 days. He also said that he would issue a mask mandate if he could, but that power has been placed upon the state legislature after recent legislative changes to his executive power.

“The decision on broader masking, on masking throughout the commonwealth, is now one that’s going to be left to the legislature. But yesterday, having the third highest number of cases we’ve ever had and having 65 people die, that would’ve been the trigger for me,” Beshear said. “If it was in my authority to put in a masking order for indoors across the state, every other time we’ve been this high, we’ve done that and it’s worked. It has decreased the number of cases. I can’t do that now and I get that, and I’ll provide all of the information I can to the General Assembly. Hopefully, they will make the best decision they can. But I am begging you out there, put on that mask. We desperately need for you to do it again.”

Moving forward, a special session must be called in order for legislative changes to be made, which could allow school districts more flexibility with going fully virtual. Beshear still has authority to call special session, and Republican legislators have claimed that discussions with the governor’s office are in the works. However, a date has not yet been set on when a special session will take place.

Kentucky Senate President Robert Stivers held a press conference on Aug. 24, where he spoke against Beshear’s executive powers related to the COVID-19 crisis. He said that he has been in talks with the governor’s office about potential plans, but he did not provide a date of when the special session would take place.

“We want to coordinate it with what the governor’s office is telling us, and I congratulate the governor for finally giving us that type of information on a daily basis,” he said, regarding a potential plan for how to address the crisis. “We haven’t been receiving that to the extent that we’ve been receiving it in the last few days.”

He mentioned, though, some areas where they could see changes made in the event of a special session.

“I know those discussions have been going on, and are going on pretty much as we speak to have things prepared. Does that mean flexibility and NTI? I think that’s a real likelihood,” Stivers said. “I think it’s a real likelihood for the potential of looking at how you calculate your average daily attendance, to give some relief there. We want to make sure we encourage in-school attendance and this is why: Understand that there are a lot of social ills, emotional ills with this. We’re seeing five opioid deaths a day, which most mental health providers will tell you is due to the isolation, that increase. So, it’s not just saying, ‘Don’t go to school.’ We’ve got a lot of things to tie into that and consider into that, and we are.”