Schools must still require masks under new rule, even though Whitmer’s orders no longer stand

A stack of homemade fabric face masks
Photo by Vera Davidova on Unsplash. Free under Creative Commons. A stack of homemade fabric face masks. Czech Republic (Photo by Vera Davidova on Unsplash)

Gov. Gretchen Whitmer’s executive orders are no longer valid, but students still must wear masks in schools.

New orders from the Michigan Department of Health and Human Services keep many of Whitmer’s key pandemic policies in place. Last week, the Michigan Supreme Court ruled that Whitmer “lacked the authority” to issue broad public health orders.

Health said they intended to tap a different legal authority to continue Whitmer’s orders as much as possible.

“In this moment of emergency action following the Supreme Court’s destabilizing order, We aim to preserve the status quo,” Bob Gordon, director of DHHS, said during a phone call with reporters on Monday.

For most of the coronavirus pandemic, Whitmer had the last word about school policy. Throughout the public health crisis, she declared a state of emergency that enabled her to issue dozens of executive orders that went beyond the usual scope of her powers as governor.

In recent months, Whitmer worked with the legislature to enshrine some key policies — such as how to calculate attendance during remote learning — into law. But other school-related rules, such as a recent classroom mask requirement for K-5 students, were only backed by one of Whitmer’s executive orders.

While the mask requirement has been reinstated, it’s unclear whether schools will still be required to report coronavirus cases or whether school boards will still be allowed to meet virtually, as Whitmer ordered last month. 

The DHHS rules are based on a different legal authority than Whitmer’s executive orders, Gordon said. The rules go into effect immediately and expire on Oct. 30, at which point the department may amend them based on feedback from across the state, he added.

For many school leaders, the Supreme Court decision opened up uncomfortable conversations about face coverings, which have become a divisive political issue.

“A lot of people are interpreting the orders to mean that their kids no longer have to wear face coverings to school,” said Brad Banasik, legal counsel for the Michigan Association of School Boards. “That’s not the case.”

Peter Spadafore, a spokesperson for the Michigan Association of Superintendents and Administrators, which represents the leaders of nearly 600 Michigan school districts, said his organization is counseling districts to stick with their existing plans as much as possible.

“That’s what your staff has worked on. That’s what your parents have understood,” he said.

Whitmer and top Republican lawmakers have pledged to work together to resolve issues left outstanding by the Supreme Court ruling, but it’s not clear how quickly their solutions will come. The legislature was scheduled to be on recess until after the November election.

The new orders from DHHS didn’t tie up all the loose ends created by the Supreme Court decision, said Don Wotruba, president of the Michigan Association of School Boards. Whitmer’s orders allowed school boards to hold virtual meetings; now it’s not clear if they can do so legally. 

“Our members and the districts they serve need clear guidelines regarding functions that are integral to the operation of our school communities, such as the legality of virtual school board meetings,” he said. “We call on the legislature to work in a swift and bipartisan fashion.”

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