In a letter (PDF) to religious schools in Texas, Attorney General Ken Paxton issued guidance about the governor’s order for schools reopening in the fall.
Specifically, Paxton informed these schools that local public health officials are issuing orders limiting in-person instruction and advised the schools about their rights. An excerpt (emphasis added):
Local public health orders issued by cities and counties must be consistent with the Governor’s orders and the Attorney General’s guidance. If local public health orders are inconsistent with these authorities, the local orders must yield. Under the Governor’s orders, local governments are prohibited from closing religious institutions or dictating mitigation strategies to those institutions. Local orders closing religious private schools. Because a local order closing a religious private school or institution is inconsistent with the Governor’s order, any local order is invalid to the extent it purports to do so.
Paxton’s guidance letter was prompted by health officials in Austin-Travis County barring in-person classes until after September 7. The Attorney General wrote that any orders attempting to restrict the private schools’ religious education violate the First Amendment and the state’s constitution and Religious Freedom Restoration Act.
Thus, as protected by the First Amendment and Texas law, religious private schools may continue to determine when it is safe for their communities to resume in-person instruction free from any government mandate or interference. Religious private schools therefore need not comply with local public health orders to the contrary.
“I am pleased to see Texas Attorney General Paxton reminding local government of the Constitution,” Liberty Counsel founder and chairman Mat Staver said. “Many have operated as though the Constitution is quarantined during a pandemic. But I have news—the Constitution is alive and well.”