By Russell Withers, General Counsel & Senior Policy Analyst. May. 21, 2020
Alice Cooper's "School's Out" has been an end-of-school-year anthem for nearly half of a century, but this year feels different. Instead of chanting "school's out for summer," parents and children who have already been at home since March are more apt to skip that part and nod in agreement with "school's out forever." Indeed, little has changed from March to May for the parents of school-aged children, particularly with respect to public parks and neighborhood playgrounds, many of which remain closed with playgrounds roped off and swings chained up. It's a small thing, but for many parents across the state, restoring the freedom to walk down the street and let your children play on the local playground would provide a sense of normalcy and signal that the current conditions will not last forever. Given the nature of other activities and facilities already opening, it makes little sense to exclude these playgrounds. Add in the strong indications that transmission of COVID-19 outdoors is far more difficult than it is indoors, as well as new Centers for Disease Control guidance stating that the virus is not thought to transmit easily from touching surfaces or objects, and the case for locking children out of this normalcy is exceedingly weak.
With respect to parks, Governor Abbott's orders have taken consideration of them. His March 19, 2020 executive order expressly allowed park access, stating that the order "does not prohibit people from visiting a variety of places, including . . . parks . . . so long as the necessary precautions are maintained to reduce the transmission of COVID-19." His April 17 order reiterated that point, as did his April 27 order. On April 20, state parks reopened, per the Governor's order. Local governments that have boarded up access to playgrounds appear to have taken a liberty with such actions (both literally and figuratively).
Governor Abbott has done a good job navigating the pandemic. While forced to make difficult decisions, he has done so thoughtfully and with prudence. When he let his stay-at-home order to expire, the Governor announced that the reopening of Texas will be done “in a way that uses safe standards” that are "based upon data and doctors.” Things have gone according to plan so far. Under Phase I, retail stores, restaurants, movie theaters, shopping malls, libraries, and museums were permitted to open on May 1 with limited capacity. Outdoor seating was specifically exempted from these capacity restrictions. Reminder: playgrounds are located in outdoor spaces.
Phase II, which began on May 18, did not specifically mention facilities within local parks, but makes clear that there is no compelling reason to keep parts of local parks closed, given the other services now allowed to reopen. Phase II increases capacity allowances for businesses and services opened in Phase I, but it includes a broad grouping of new business and activities allowed to open. Texans are once again permitted to patronize child care centers, massage centers, rodeos, bowling alleys, bingo halls, skating rinks, bars, aquariums, zoos, day youth camps, overnight youth camps, and youth sports. Public schools are even allowed to offer in-person summer schooling so long as proper precautions are taken. Note the emphasis on services where children congregate.
Despite this laundry list of openings and allowances, many activities in local parks remain roped off, chained up, and closed. If children are now allowed to attend child care, youth clubs, camps, organized sports, and school, and if parks were never intended to be closed in the first place, then there is no compelling reason to prohibit children from using swing sets and playscapes.
Moreover, the existing science does not support a mandate to close playgrounds. New guidance from the CDC on "How COVID-19 Spreads" states that it "does not spread easily . . . from touching surfaces or objects." Indeed, as noted by the New York Times as recently as May 21, "Interviews show a growing consensus among experts that, if Americans are going to leave their homes, it’s safer to be outside than in the office or the mall. With fresh air and more space between people, the risk goes down." The article cautions that people should still be cautious, but that applies to all interactions these days. Parents are capable of instructing their children to be mindful of proximity to too many other children, or, if that is a concern, going to the park at an off-peak time. It is time for these parks to fully open and to let the public use them.