Are Arkansas Department of Education COVID guidelines for schools legally enforceable like a regulation?

Plain-English summary

Senator Kim Hammer asked whether the Arkansas Department of Education's August 2021 COVID-19 school guidance had the force of a rule and whether a district that adopted only some of its recommendations could face punitive action. The AG said the guidance had not been promulgated under the Arkansas Administrative Procedure Act and did not have the same force and effect as a properly adopted rule.

The AG qualified that answer: guidance documents may refer to Arkansas Department of Health rules that do have legal effect. The school guidance cited the ADH Rules Pertaining to the Control of Reportable Diseases. The AG said districts must follow such rules and should be aware of possible consequences for failing to do so. The opinion does not give blanket permission to disregard the guidance or decide the consequences of a particular district policy.

Currency note

This opinion addresses a school guidance document issued in August 2021. Check any current guidance and the rules it cites before applying the opinion to a present-day school policy.

What this means for you

If you administer a school district

Identify any actual ADH rule referenced by a guidance document. The AG distinguished the non-rule guidance she reviewed from rules with legal effect and said districts must follow the latter. The opinion does not evaluate a particular district's policy or impose a specific penalty.

If you draft or review agency guidance

The document's adoption history matters here. The AG found that the August 2021 school guidance had not gone through APA rulemaking, and therefore did not carry the same force of law as a properly promulgated rule. The guidance also referred readers to ADH rules.

Common questions

Did the August 2021 guidance have the force of law?
The AG said it had not been promulgated under the APA and did not have the same force and effect as an APA rule.

Could a school district disregard every instruction mentioned in the guidance?
The opinion does not say that. It says guidance may refer to binding ADH rules and that school districts must follow those rules.

Did the AG decide what penalty a district would face?
No. The AG advised districts to be aware of possible consequences of failing to follow ADH rules but did not decide a specific enforcement action.

Background and statutory framework

The opinion identifies Ark. Code Ann. § 25-15-201 et seq. as the Arkansas Administrative Procedure Act. It cites Mannis v. State ex rel. DeWitt School District No. 1 and Manufacturers Cas. Ins. Co. v. Hughes in a footnote for the legal force of valid administrative rules. Its answer is confined to the guidance described in the request and the ADH rules that guidance may reference.

Citations

• Ark. Code Ann. § 25-15-201 et seq. (Administrative Procedure Act)
• Mannis v. State ex rel. DeWitt Sch. Dist. No. 1, 240 Ark. 42, 398 S.W.2d 206 (1966)
• Manufacturers Cas. Ins. Co. v. Hughes, 229 Ark. 503, 316 S.W.2d 827 (1958)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

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").

PDF footnote 1: See Mannis v. State ex rel. DeWitt Sch. Dist. No. 1, 240 Ark. 42, 44-45, 398 S.W.2d 206, 207 (1966) (noting that a 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) (quoting American Jurisprudence, Vol. 42, p. 432: "Rules, regulations, and general orders enacted by administrative authorities pursuant to the powers delegated to them have the force and effect of law ....").