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Gov Justice new map (copy)

Gov. Jim Justice holds a printout of a color-coded COVID-19 metric during a news conference Monday, Aug. 17.

It’s now clear that county school systems have the choice to not offer in-person classes this fall, no matter what color the county is on the state’s school reopening map.

Finally, county residents have clarity — after at least a month of county schools superintendents saying they don’t have this power, citing an alleged unpublished directive from the state Department of Education barring them.

County superintendents and boards of education do have the authority.

But this clarity only came Friday, with the school year set to begin statewide Tuesday. In-person classes are currently set to reopen in counties that aren’t orange or red on the map.

State law said even before the pandemic that county schools superintendents “shall ... close a school temporarily when conditions are detrimental to the health, safety or welfare of the pupils,” and “schools may be closed by proper authorities on account of the prevalence of contagious disease.”

But state schools Superintendent Clayton Burch muddied the picture Monday in what he described as a “clarification.” During the governor’s tri-weekly news conference, Burch said remote-only instruction “is reserved for extreme circumstances.”

He didn’t cite any legal authority for blocking green and yellow counties from deciding on their own to switch to remote-only. But the state superintendent and his boss, the state Board of Education, are extremely powerful under state law and the state constitution.

And constitutional power can trump laws that state lawmakers pass.

Burch said “remote learning is not equitable for all students, a large number of our students and families do not have [internet] access at home, many families do not have the resources to be at home with their children when we’re asking them to go back to work, there’s nobody there to keep their children on task.”

He also suggested that Gov. Jim Justice was backing him up, saying, “we thank the governor for still reserving that [option] in extreme circumstances.”

But in Friday’s tri-weekly news conference, Justice said “I think that by some of the leadership of the teachers unions there was some voicing of these type of opinions: That they had been told by us that a county could not elect to go remote.”

“That’s just as incorrect as it can be,” Justice said.

On Thursday, West Virginia Education Association union President Dale Lee invited Monongalia County schools Superintendent Eddie Campbell to go to court together to make clear counties have the right to make that choice.

Lee said “the residents of the county, the local school community and the local board of education are best situated to gauge the appropriate learning environment for their community.”

Burch might have been able to use his power to still stop counties from making the decision, but a MetroNews reporter noted that the website of Burch’s Department of Education now reflects that counties have the right.

However, the education department and the governor have allied on a caveat that Campbell said may mean his school system needs to reassess whether it still wants to stay on remote-only instruction.

The caveat: Counties can’t have sports or other extracurriculars as long as they don’t also offer in-person classes.

‘You just can’t do that’

“I mean, you just can’t do that,” Justice said Friday. “If the school’s not open, we can’t be playing sports.”

“The bottom line I guess is if it’s too dangerous to go back to school, it’s surely too dangerous to be playing sports,” he said.

Counties can’t start in-person classes Tuesday if, in this Saturday’s update of the state’s color-coded school reopening map, they’re orange or red.

Nothing Friday changed that. And Monongalia was red as of Friday.

The colors are based on a county’s daily average of new COVID-19 cases per 100,000 residents.

Campbell said his county school board, anticipating that West Virginia University students returning to Morgantown would increase that average, voted that Monongalia would stay with remote-only instruction for the whole first nine weeks if it had to start with remote-only instruction. It will be required to do so.

Even if the county dropped to a color in which it could restart in-person classes, it wouldn’t. Campbell said this was to provide stability for parents, students and teachers and prevent “flip-flopping” between in-person classes being allowed or not, in case the county dropped out of red and re-entered it once or more.

But Campbell said that vote was taken when Monongalia thought it could still have sports and extracurriculars, even though classrooms were shuttered. Such a possibility previously could have been the case once Monongalia left red, where sports and in-person instruction are banned by the state.

“We feel very strongly that extracurricular activities are a huge part of our children’s school experience,” he said.

He said he met with the Monongalia County Commission and representatives of the City of Morgantown, the county prosecutor’s office and the county health department to discuss how to get “relief” from WVU student and staff positive cases affecting what the school system can or can’t do.

“They shop where we shop, they eat where we eat, I can understand the fact that people are concerned they are part of that community and they can possibly spread the disease,” Campbell said. “The issue is we’re not seeing that at this point.”

He noted that only a handful of recent Monongalia positive cases have been outside the 10- to 29-year-old age group.

Five Democratic state delegates sent Justice a letter Friday opposing excluding WVU student positive cases from the county’s average.

“WVU students live in and around Morgantown,” they wrote. “Some live in dorms, and some live off-campus. Some have been responsible and followed public health protocols, and others haven’t. Some are symptomatic, have been tested, and are quarantined, but others may be asymptomatic and still infecting people in Mon County both inside and outside of the WVU community.”

“WVU isn’t a bubble,” they wrote. “Just think about what happened at the bars a few nights ago that led you to shut them down again.”

Reach Ryan Quinn at

ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn, 304-348-1254 or follow

@RyanEQuinn on Twitter.