Local school boards instead of public health boards would make decisions governing the return of students to in-classroom learning under legislation that passed the Senate in a 27-5 vote Monday.

In addition, the legislation would give the governor free rein to order school districts to bring students back to classrooms, a shot at Shelby County Schools and Metro Nashville Public Schools, both of which employed virtual learning until the COVID-19 pandemic began to ease in February.

Sponsored by Sen. Brian Kelsey, R-Germantown, the legislation says school boards may consult with state and local health departments when deciding whether to open or close in-person learning and instruction but would make the decision whether to return students to classrooms. 

Sen. Brian Kelsey, R-Germantown (Photo: Tennessee General Assembly)
Sen. Brian Kelsey, R-Germantown (Photo: Tennessee General Assembly)

An amendment would enable boards to delegate authority to the district’s director. Superintendents in Metro Nashville and Shelby County resisted pressure to return until they saw a decline in the spread of the virus.

However, during an emergency, if the governor issues an executive order statewide requiring schools open to in-person learning, it supersedes even the school board’s authority. The latter portion of the bill is already part of state law.

Kelsey contended the law is unclear about who decides when students go back to classrooms, the county health department or school board, which created confusion in some counties in 2020. In Shelby County, seven municipal school districts started the school year with hybrid learning models, a mixture of in-classroom and virtual learning, even though the county health department recommended students in Shelby County Schools remain at home.

“The people who hold these officials accountable are the voters, and so it should ultimately be up to elected officials to make these decisions,” Kelsey said.

Shelby County and Metro Nashville health departments are two of six statewide operating independently from the Tennessee Department of Health.

Sen. Paul Rose, a Covington Republican whose district takes in most of those municipal school districts in eastern Shelby County, sided with Kelsey and said school boards should have “the freedom” to decide whether children should return to classrooms.

Even though he never made an executive order ordering schools to close or open fully, Gov. Bill Lee issued some tough talk during his State of the State about school districts that still hadn’t returned to classrooms. 

At that point, Shelby County Schools was the only district in the state to not announce a decision to return students after conducting virtual classes the entire school year. Students there are to start returning to schools March 1. Metro Nashville Public Schools had decided to phase students back into classrooms shortly before the governor’s address.

Sen. Brian Kelsey, R-Germantown, said his legislation giving authority to school boards rather than boards of health on returning kids to classrooms, will ‘send a message.’ Gov. Bill Lee, however, said will provide support to Shelby County Schools and doesn’t plan to penalize the system.

That week, Kelsey blamed the teachers’ union for Shelby County’s decision to keep children at home. “It’s purely political,” he said.

Kelsey reiterated his stance Monday, saying the legislation will “send a message” to those counties to “listen to parents, follow the science and reopen the schools.” He added the legislation is still needed because Shelby County students haven’t started returning to classes.

In his latest statement about Shelby County Schools, though, Gov. Lee said he is providing support to the system, not planning to try to penalize it.

Kelsey noted in a statement the federal Centers for Disease Control and National Institute of Allergy and Infectious Diseases had recommended students go back to classes before Shelby announced the decision to resume in-classroom learning.

State Sen. Sara Kyle, D-Memphis (Photo: Tennessee General Assembly)
State Sen. Sara Kyle, D-Memphis (Photo: Tennessee General Assembly)

Sen. Sara Kyle, a Memphis Democrat, was among the minority who voted against the legislation Monday, saying it should be a “matter of local control.”

Kyle pointed out Shelby County Schools Director Joris Ray does not “work in a vacuum” but talks with people throughout the community, in addition to relying on the CDC and medical experts.

“The reason we allow him to make those decisions is because he knows better than most what his particular county needs. It’s local control, which most of us in here have stated before we believe in,” Kyle said.

Responding to questions from Kyle, Kelsey could not say what might happen to teachers if they refuse to return to schools, pointing out it would be up to school districts to deal with “insubordinate employees.” He did say the legislation would not require parents to send their children back to school if they feel it is unsafe.

Senate Minority Leader Jeff Yarbro pointed out the legislation would respond only to the next pandemic. He questioned whether it would allow the governor to require masks in schools and set rules for hybrid learning.

The Nashville Democrat pointed out Tennessee is the state’s 16th most populous state but had the third-highest number of children with COVID-19. One of Shelby County officials’ biggest concerns was the number of children who live with elderly grandparents and the potential for spreading the virus to them.

  Instead of working together to end the pandemic and create safe conditions for schools to operate, we're debating who decides when schools reopen — regardless if they're safe or not.   – Sen. Raumesh Akbari, D-Memphis

Sen. Raumesh Akbari, a Memphis Democrat, disagreed with Kelsey’s assertion during a Senate Education Committee meeting two weeks ago.

In a statement shortly after Monday’s vote, Akbari said returning students to school “safely” should be the Legislature’s priority.

“But instead of working together to end the pandemic and create safe conditions for schools to operate, we’re debating who decides when schools reopen — regardless if they’re safe or not,” she said, arguing the bill is a “major slight” to local control.

Republican leaders, including House Speaker Cameron Sexton, raised concerns in 2020 that unelected public health boards held too much control over the decision-making process during the pandemic. That included decisions on whether to return children to classrooms.

State Rep. Kevin Vaughan, a Collierville Republican sponsoring the House version of the bill, said Monday local school boards should control when they open and close schools instead of mayors and health departments.

“Because when’s the last time you’ve seen a mayor of a health department mandate school closure for snow? (School boards are) already mandating when their schools are open and closed. They’ve already got their kids’ best interests at heart, so why, in this case, should it be any different,” Vaughan said.