Are Arkansas Department of Education COVID guidelines for schools legally enforceable like a regulation?
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This page answers the general question as of 2021. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
In August 2021, the Arkansas Department of Education released "2021-2022 COVID-19 Guidance for Schools," recommending quarantine and isolation procedures derived from Department of Health and CDC guidance. Senator Kim Hammer asked whether that guidance carried the same force as a properly promulgated rule, and whether a school district could be punished for not following it.
Attorney General Leslie Rutledge answered no. The guidance was not promulgated through the Arkansas Administrative Procedure Act (Ark. Code Ann. § 25-15-201 et seq.), which means it did not have the force of law. School districts could not be punished for failing to follow guidance, as such.
The opinion then made an important caveat: guidance documents often reference underlying rules. The COVID-19 guidance specifically cited "ADH Rules Pertaining to the Control of Reportable Diseases," which were properly promulgated under the APA and do have the force of law. So school districts were not free to ignore the substance of the guidance: they had to follow any underlying ADH rules incorporated into it. Failure to follow those rules carried consequences.
The framework comes from Arkansas Supreme Court precedent: Mannis v. State ex rel. DeWitt Sch. Dist. No. 1 (1966) confirms that valid health regulations have the force of law, and Manufacturers Casualty Insurance v. Hughes (1958) sets out the broader principle that rules properly enacted by administrative authorities have the force of law. Guidance, recommendations, and similar non-rule documents do not.
Currency note
This opinion was issued in December 2021. It was tied to the specific Arkansas Department of Education COVID-19 guidance issued in August 2021. That guidance has long since been superseded. The legal framework distinguishing rules from guidance, however, has not changed: rules promulgated under the APA carry the force of law, and guidance does not. Verify any current guidance against the underlying APA rules before deciding what is legally enforceable.
What this means for you
If you are a school superintendent or board member
When state or federal "guidance" lands in your inbox, the first question is: was this issued under the APA? If yes, treat it as binding. If no, ask what underlying APA-promulgated rules it points to, and follow those. The guidance itself is not enforceable, but the rules it references usually are. Ignoring guidance entirely is risky if it incorporates ADH rules on reportable diseases or other operational obligations.
If you are a state agency drafting guidance
Be explicit about what is rule and what is recommendation. Mixing the two creates confusion. If you want enforceability, go through the APA. If you want flexibility, label the document clearly as guidance and avoid wording that suggests legal compulsion.
If you advise school districts on enforcement risk
Pull up any guidance the agency cites. Identify the underlying APA-promulgated rules. Distinguish: guidance recommends, rules require. The district's exposure tracks the rules, not the guidance. But the guidance will often be persuasive when courts review the district's exercise of discretion.
If you are a legislator concerned about agency guidance documents
Several states have moved to formalize guidance: requiring agencies to label documents, register them, or follow simplified-rulemaking procedures. The opinion's structural point is that guidance carries no force of law absent the APA process. Legislative reform can either tighten the APA's reach or restrict guidance's practical influence.
Common questions
Q: What is the Arkansas Administrative Procedure Act?
A: The APA, codified at Ark. Code Ann. § 25-15-201 et seq., governs how state agencies make rules. It requires public notice, opportunity to comment, and formal adoption. Rules properly promulgated through the APA carry the force of law and are enforceable through agency adjudications and judicial review.
Q: Why doesn't guidance count?
A: Guidance documents are typically issued by an agency to interpret existing law, communicate priorities, or recommend best practices. They skip the APA's procedural protections (notice and comment). Because they do not have the procedural pedigree of rules, courts treat them as advisory rather than mandatory.
Q: What if guidance and an APA rule conflict?
A: The rule wins. Guidance can interpret a rule but cannot override it. If guidance imposes a requirement the rule does not, the requirement is not enforceable as a matter of state administrative law.
Q: Are CDC recommendations binding on Arkansas schools?
A: Federal CDC recommendations are not, by themselves, binding on state agencies or local government. They become operationally binding only when adopted into a federal or state APA-promulgated rule. The COVID guidance referenced CDC recommendations but did not turn them into binding rules.
Q: What about ADH "Rules Pertaining to the Control of Reportable Diseases"?
A: Those rules were promulgated under the APA and do have the force of law. School districts must follow them. The opinion explicitly flagged this point: ignoring the guidance is fine, ignoring the underlying rules is not.
Background and statutory framework
The distinction between rules and guidance is foundational to administrative law. A rule, properly promulgated, is law. It binds the agency, regulated parties, and the courts (subject to judicial review). Guidance is the agency speaking informally: explaining how it reads the rules, signaling enforcement priorities, or telling regulated parties what it thinks they should do.
The APA's notice-and-comment procedure exists because rules carry coercive consequence. Affected parties get a chance to weigh in before the agency locks in a binding requirement. Guidance bypasses that process and, as a result, gives up the legal authority that comes with the procedure.
The Arkansas Supreme Court's older cases (Mannis 1966, Hughes 1958) established the basic frame: properly enacted rules are law. The opinion applies that frame to a current question (COVID-19 school guidance) and concludes the obvious: guidance is not a rule.
The practical importance for school districts is to recognize when an agency communication is one or the other. Letterhead alone is not the answer. Look for the APA-promulgation history (publication, comment period, codification in the Arkansas Register).
Citations and references
Statutes:
- Ark. Code Ann. § 25-15-201 et seq. (Arkansas Administrative Procedure Act)
Cases:
- Mannis v. State ex rel. DeWitt Sch. Dist. No. 1, 240 Ark. 42, 44-45, 398 S.W.2d 206, 207 (1966) (valid health regulation has the force and effect of law)
- Manufacturers Cas. Ins. Co. v. Hughes, 229 Ark. 503, 509, 316 S.W.2d 827, 831 (1958) (rules and regulations enacted by administrative authorities have the force and effect of law)
Source
Original opinion text
Opinion No. 2021-074
December 17, 2021
The Honorable Kim D. Hammer
State Senator
1201 Military Road PMB 285
Benton, AR 72015
Dear Senator Hammer:
This is in response to your request for an opinion from this office concerning public health guidelines issued by the Arkansas Department of Education. As background for your particular questions, you state:
The "2021-2022 COVID-19 Guidance for Schools" released by the Arkansas Department of Education on August 10, 2021, recommends that school districts "quarantine and isolate" students as necessary. This guidance is based on Arkansas Department of Health and Centers for Disease Control and Prevention guidance regarding whether or not quarantine and isolation are necessary when exposed to COVID-19.
In light of the foregoing information, you have asked the following questions:
1) If a guideline is issued in place of a rule or mandate, does that guideline carry the same force of law that a rule or mandate carries, specifically with respect to punitive actions that may be taken against a public school that fails to follow the guideline?
2) In the absence of a rule or mandate, if a public school develops an official school district policy by taking into consideration some, but not all, guidelines, is the public school subject to punitive action for not explicitly following the guidelines?
RESPONSE
No, guidance documents do not have the same force and effect as a properly promulgated rule. School districts are, however, required to follow rules issued by the Arkansas Department of Health.
DISCUSSION
Question 1: If a guideline is issued in place of a rule or mandate, does that guideline carry the same force of law that a rule or mandate carries, specifically with respect to punitive actions that may be taken against a public school that fails to follow the guideline?
Given the background information provided in your correspondence, I gather this question concerns the "2021-2022 COVID-19 Guidance for Schools" that was issued by the Arkansas Department of Education on August 10, 2021. This guidance was not promulgated under the Arkansas Administrative Procedure Act ("APA," Ark. Code Ann. § 25-15-201 et seq. (Repl. 2014 and Supp. 2021)). As such, the guidance document you reference does not have the same force and effect of law as a rule adopted pursuant to the APA.
Question 2: In the absence of a rule or mandate, if a public school develops an official school district policy by taking into consideration some, but not all, guidelines, is the public school subject to punitive action for not explicitly following the guidelines?
As noted, a guidance document does not normally carry the force of law. But guidance documents, including the one you reference, may refer to rules issued by the Arkansas Department of Health that do have that effect. School districts must follow such rules and should be aware of the possible consequence of not following them.
Sincerely,
LESLIE RUTLEDGE
Attorney General
Note: 2021-2022 COVID-19 Guidance for Schools, August 10, 2021, at 8 (citing "ADH Rules Pertaining to the Control of Reportable Diseases").
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