COVID masks can still be required in Michigan schools, despite ruling

[Editor's note: This report was updated late Monday afternoon to reflect new COVID-19-related restrictions announced by the Michigan Department of Health and Human Services]

The Michigan Supreme Court ruling on Friday that upended dozens of pandemic-related executive orders issued by Gov. Gretchen Whitmer — followed by a Monday pronouncement by the state health department that reinstated many of those restrictions — left parents and education leaders wondering how Michigan schools might be impacted.

Here’s what we know as of late Monday:

Does my child still need to wear a face mask to school?

For now, it’s best for parents to assume school requirements regarding face masks to guard against COVID-19 are the same this week as last.

Under an executive order, Whitmer required students in grades 6-12 to wear face masks throughout the day, and elementary students to wear face masks in common areas. Under a second executive order that was to take effect Monday, all elementary students would have been required to wear masks in class, too.

Those executive orders are likely to be invalidated by the Supreme Court’s recent ruling. But late Monday afternoon, the Michigan Department of Health and Human Services reinstated the school mask order under its own authority, rather than through the governor’s executive order. Whether that executive branch sleight of hand will withstand an inevitable legal challenge is too early to say.  

So where does that leave parents? 

The simple answer is that, regardless of what emerges at the state level,  individual school districts can set their own policies about face masks. Peter Spadafore, spokesperson for the Michigan Association of Superintendents and Administrators, said schools have the right to set policies about face masks in the same way they can have rules about clothing, such as schools that require uniforms.

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“What we’ve advised folks is go on with the status quo as of Friday morning,” Spadafore said.

That means middle and high school students will, in many districts, still be required to wear face masks whether Monday’s MDHHS order withstands a nearly certain legal challenge or not. The statewide requirement for masks among elementary students likely won’t go into effect, but some districts already required masks at all grades. 

School districts contacted by Bridge Michigan Monday said they weren’t changing policies despite the Supreme Court ruling. Godfrey-Lee Public Schools Superintendent Kevin Polston said the district, near Grand Rapids, has required face masks for students in kindergarten through 12th grade since the schools opened for face-to-face instruction in September, and will continue the requirement.The same is true at Novi Community School District in Oakland County.

Norway-Vulcan Area Schools in the Upper Peninsula said it will maintain its policy of K-5 students wearing masks in common areas and 6-12 students wearing masks all day. “We will continue to follow the guidelines of our local health department,” Norway-Vulcan Superintendent Lou Steigerwald said.

Michael Van Beek, director of research at the Mackinac Center for Public Policy, agreed that districts can enforce mask rules like they do for clothing and appearance.

Some unhappy parents will likely challenge those rules, Van Beek said. 

“I’m sure there will be conflict throughout the state,” he said. Another wrinkle will be what rules are adopted by local health boards, he said.

But if parents are unhappy with whatever local decisions are made, Van Beek said the state’s robust choice options — other public schools, charter schools private schools — will give parents other places to send their children.

The affiliated Mackinac Center Legal Foundation filed the original federal lawsuit challenging the emergency orders in May, along with Miller Johnson law firm.

Are schools forced to switch to in-class learning?

No. The Supreme Court’s ruling doesn’t impact whether schools are offering face-to-face instruction, remote learning or a combination. A bill passed by the Republican-controlled Legislature and signed by the Democratic governor in August gives local school districts the ability to decide on their own whether to reopen classrooms or continue instruction online as schools were doing last spring, after all school buildings closed in March to curb the pandemic.

That bipartisan agreement also allows school districts to count students who are taking instruction online as attending school – an important concession because state funding to school districts is largely based on enrollment.

Can more people attend high school football games?

Under a recent executive order, which was scheduled to take effect Oct.9, outdoor events like football games could have up to 30 percent of seats filled or 1,000 people, whichever was less; indoor sporting events could have 20 percent of seats filled or 500 people, whichever was less.

Now, no one is sure.

Limitations on public gatherings, including sporting events such as high school football games, had been set by executive orders that are likely to be thrown out after the Supreme Court’s action Friday. While there is dispute over whether the governor’s executive orders were halted Friday or can stay in effect for another 21 days, Michigan Attorney General Dana Nessel said she will not enforce those orders going forward.

The order issued Monday by MDHHS reinstated the same capacity limits as had been set to go into effect Friday through Whitmer’s executive order. Again, it is not clear whether those orders will be allowed to stand. 

The Michigan High School Athletic Association and the Michigan Department of Health and Human Services were scrambling Monday to issue new guidance on high school sports attendance.

“We are still determining how (the court ruling) Friday changes everything,” Geoff Kimmerly, spokesperson for the MHSAA, told Bridge Monday morning. “We will know more later today or tomorrow.”

Lynn Sutfin, spokesperson for MDHHS, told Bridge she too hoped to have more to say on the subject late Monday.