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State vs. schools: Legal confusion delays mask wearing resolutions in some districts

Posted at 11:34 PM, Nov 10, 2021
and last updated 2021-11-10 23:34:22-05

(WXYZ) — In Metro Detroit, we are seeing some parents demand that mask wearing at schools be made optional.

Some districts are close to passing this resolution but haven’t made the official move due some confusion coming out of Lansing.

Republican lawmakers want to put power back into the hands of school districts, but some districts are on the fence about keeping or getting rid of the mask mandates implemented by counties.

“This is a mess. This is a definite muddle,” said Daniel Rosenbaum, a visiting assistant professor at University of Detroit Mercy School of Law.

He says this is a tough decision for school districts.

“They have to look at what the state Legislature is saying, they have to look at what their counties are saying,” Rosenbaum said.

The 2022 budget bill passed by the Michigan Legislature says health departments that enforce mask mandates could lose funding.

“This is an attempt as a part of the new budget bill to remove mask mandates at the local level,” Rosenbaum said.

Gov. Gretchen Whitmer believes this is unlawful.

“The governor signed a bill and said that this language is unconstitutional and unenforceable and it’s, according to the governor, a political stunt by Republican lawmakers,” Rosenbaum explains.

Several school districts like Grosse Pointe and Oxford are considering making mask wearing optional for students.

"I know that there's absolutely, in every community, there's a division on this issue,” Grosse Pointe school board member Lisa Papas said.

Thomas Donnelly, the board president at Oxford Community Schools, says: “We just want to protect our district and do it legally.”

The superintendent of Novi Schools, Steve Matthews, Ph.D., says as of now, his district will continue to wear masks but admits the law is confusing.

“There is also the law on the books that states health departments have the authority to make mandates like this,” Matthews said.

He’s referring to the public health code. It gives local leaders the power to enforce health measure like a mask mandate.

“The governor's legal team is arguing that if you want to change the public health code, the Legislature needs to amend the code and not pass some boiler plate in a larger budget,” Rosenbaum said.

He says it’s too soon to tell if localities will lose funding, but some health departments aren’t risking it.

“Sometimes the political threat is enough to influence behavior, even if the law isn’t on the same side,” he said.

Other leaders say they are sticking to science.

“We understand that masks have become a political tug of war, but we also believe that mask do help protect our students,” Matthews said.

Rosenbaum says he predicts there will be continuous litigation.

Some school districts are already seeking legal counsel before moving forward with the resolution to make masks optional in schools.

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