Updated, 2:32 p.m., 10/28/21 with masking update from Kingsbury Country Day School
When Republicans inserted boilerplate language into the Fiscal Year 2022 budget last month threatening to cut funding for local health departments that issue COVID-19 mask or quarantine policies, some school districts started to wonder whether to follow county mandates or state law on masking students.
Gov. Gretchen Whitmer signed the budget bill, Senate Bill 82, into law days later, but said that the boilerplate language, which she doesn’t have the power to veto, is “unenforceable” and “unconstitutional.”
Despite the reassurance from the governor, some local health departments rescinded their mask mandates in fear of losing necessary state funding.
As of Oct. 1, there are 11 jurisdictions with school mask orders covering just 15 counties in Michigan, said Norm Hess, executive director of the Michigan Association for Local Public Health. Barry-Eaton District Health Department, Dickinson-Iron District Health Department, Berrien County Health Department and Allegan County Health Department have all rescinded their mask mandates after the budget was signed.
Kids under 12 still aren’t eligible for the COVID vaccine, although shots for 5- to 11-year-olds are expected to get final federal approval soon.
Currently, 222 districts out of the state’s 891 districts have a mask policy. These policies cover 750,357 students in the state, about 60% of students in traditional public schools, according to the governor’s office. That number was higher before the budget was signed in late September.
As of Monday, 7% of K-12 school districts have rescinded their mask policies, according to the state.
Oakland County in Southeast Michigan, the second-most populous county in the state, decided to keep its mask mandate for students in K-12 schools.
But Tom Donnelly, school board president of Oxford Community Schools in northern Oakland County, said the school board will vote soon to rescind the district’s mask mandate if they don’t get clarification from the state on whether the county’s mandate is moot or still holds.
“I certainly am in a constitutional crisis. If I follow one, I seem to offend the other,” Donnelly said, referring to the anti-mask language in SB 82 and the Oakland County Health Department mask mandate. “I feel like I’m caught between a rock and a hard place, constitutionally.”
District seeing rising cases, an employee dying of COVID-19
Jennifer Hart, who has two young children in Oxford Community Schools, noticed last week that the school board had on the agenda that it will be discussing the district’s mask mandate.
This raised a red flag for Hart, who supports the mask mandate since her children are too young to be vaccinated. The district also has reported dozens of cases in the last month, with a new case coming out of the district nearly every school day since Oct. 1.
On top of that, an Oxford bus driver, Joyce Butterfield, died on Oct. 9 due to COVID-19 complications.
And when Tim Throne, the district’s superintendent, announced his retirement on Oct. 12, he told parents: “I am not retiring because of the last 19 months, but, if I am completely honest with you, it has certainly sped up my timeline.”
“It’s very concerning that they would, at this point in time, choose to take this action,” Hart said. “As a parent in the school district, I’m very concerned with repealing the mask mandate, because my children are younger, and they haven’t had the opportunity to be vaccinated yet. And I feel like having a universal masking policy in place helps to protect them and keep them in school.”
And the number of outbreaks might be even higher than that.
The Michigan Department of Health and Human Services (DHHS) doesn’t track individual COVID-19 cases in schools and relies on local health departments to track and report. To be considered an outbreak, the local health department must have found three or more COVID-19 cases that may have shared exposure on school grounds and are from different households. Previously, the state considered an outbreak to be two or more COVID-19 cases.
None of the cases reported by Oxford Community Schools have been included in the state’s weekly school outbreak reporting.
Donnelly said this is likely because students contracted the virus outside of the school and it is not considered an outbreak.
“It’s pretty irresponsible for a school district to be considering this when there’s so many unvaccinated children,” said Jody Job, a mother of a senior at Oxford High School and a Democratic state House candidate in 2020.
Schools are choosing to decide to follow county or state for guidance
On June 22, Whitmer dropped the statewide COVID-19 mandates, including the mask mandates for schools. This left the decision up to local health departments and school districts.
Oxford Community Schools went ahead and started planning for the upcoming school year without a mask mandate. But on Aug. 24, the day before the first day of school, the Oakland County Health Department put in place a mask mandate for all K-12 schools and school-related activities.
Once FY 22 began Oct. 1, Donnelly drafted a resolution that states: “The Oxford Community Schools Board of Education requests a reconciliation of this conflict from the Governor’s office and the Oakland County Health Department by Oct. 29, 2021.”
If the district doesn’t get clarification from either the governor or the health department, “the district will put forth a motion to allow Oxford Community Schools to transition back to the planned processes and procedures developed prior to the mask mandate being implemented.”
The resolution was passed by the board with a 5-1 vote last week. School board member Mary Hanser was the lone no vote, but did not respond to a request for comment.
“For me it’s not about masking or unmasking, it’s about wanting to fulfill my oath to uphold the Constitution of the state of Michigan,” Donnelly said. “And how do I do that, when there’s a law contradicting a mandate, or at least conflicting with the mandate, with no clear direction from either entity, except the one entity saying we’re going to do it anyways?”
Whitmer has held strong to her assertion that the boilerplate language isn’t constitutional. Additionally, despite said language, all local health departments, regardless of mask mandates, have received their full funding.
“When Republicans introduced a dangerous provision attempting to defund local health departments that protected students with smart mask policies, our office was quick to reassure counties and school districts that this language was unconstitutional and would not be enforced,” Whitmer spokesperson Bobby Leddy said.
According to Attorney General Dana Nessel’s office, no one has asked for a formal legal opinion on whether or not county health mandates still hold after the passage of SB 82.
But in mid-September, Rep. Jim Lilly (R-Park Twp.) asked Nessel if a county board of commissioners can reverse a public health order issued by a county health officer requiring students to wear masks.
Nessel responded to Lilly: “Our core responsibilities to represent the state and all its departments, officers and employees prevent us from addressing all but a few, select local issues. After discussing the legal complexities and implications of your questions, we have determined that issuing an opinion of the Attorney General is not appropriate at this time.”
Nessel further stated that it is a “longstanding policy of this office to decline to provide an opinion with respect to issues that may become the subject of litigation.”
The confusion around the boilerplate language has seeped into the local school districts, even for those districts within counties that have kept their mask mandates.
So districts are taking it upon themselves to decide whether to follow county mask mandates or rescind their mandates because of SB 82.
It's pretty irresponsible for a school district to be considering this when there's so many unvaccinated children.
– Jody Job, a mother of a senior at Oxford High School
Kingsbury Country Day School, a charter school in Oxford, dropped its mask mandate Tuesday, citing the boilerplate language in the budget as the reasoning.
“We have sought the opinion of legal counsel on this issue, discussed the matter at our most recent board meeting, evaluated what other districts locally situated are doing and discussed the matter with [Saginaw Valley State University], our authorizer. As a result we have concluded that we best serve the mission of our school community outlined above by returning to the mask optional protocol for our entire school community,” Academy Director Lisa Halushka and Assistant Head of School Andrea Bristol wrote in a letter to parents Tuesday.
Though, that didn’t last long. On Thursday morning, Kingsbury informed parents that “upon the request of our authorizer and with further advice of legal counsel” the district is reinstating the mask mandate as required under the Oakland County Health Department.
However, the charter school went on to say that the county health mandate does not require Kingsbury to take any punitive action against anyone and it does not specify any consequence for an alleged failure to comply with the mandate, Kingsbury has not itself mandated a mask mandate and the county mandate does not require Kingsbury to discipline a student in any way in relation to the order.
“We expect further clarification of this situation to be forthcoming from other authorities such as the courts and the legislature and, if and when they do, we will, of course, inform our community,” Kingsbury school leaders wrote in the email to parents Thursday.
Another school district in Oakland County, Walled Lake Consolidated Schools, also met with legal counsel about the issue, but came to a different conclusion than Kingsbury’s initial decision.
“Governor Whitmer signed the budget bill this week, and there is some confusion about whether that would invalidate the Oakland County Health Division’s mask mandate. Following the Governor’s statement we consulted with our attorneys who have advised us that we are still required to follow the Oakland County Health Division’s mask mandate,” the district wrote in their Frequently Asked Questions section on its website.
As of Tuesday, the Oxford school board hasn’t heard back from either the governor’s office or the Oakland County Health Department, Donnelly said.
And with only a few days left before the district goes forward with a vote to rescind the district’s mask mandate, pro-mask parents are worried.
“I think we have to be doing things that are going to keep our children and our most vulnerable population safe, and not spreading this anti-mask sentiment when masks are clearly needed in the schools right now that have high numbers of cases and high numbers of unvaccinated students,” Job said.
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