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Mask Policy Memorandum

To:  ASMSU Leadership 

From: ASMSU Attorney

Re: Mask Policy Memorandum 

September 2nd, 2021

 

Procedural Posture

 

The 2021 Montana State Legislature did not pass any law regulating mask usage in the University setting.  Beginning in May 2021, the Board of Regents decided to leave COVID response planning to the individual two-year and four-year institutions.  The intent behind this directive is to offer in-person instruction and a nominally normal college experience while safeguarding the health of students, faculty, and staff.  Campuses are directed to consult relevant authorities and guidance at the local, state and federal levels when developing any ongoing guidance related to masks.  Seehttps://mus.edu/coronavirus/memo_5-14-2021.html The Commissioner of Higher Education and the Board of Regents will continue to consult with the Healthy MUS Task Force, statewide leaders, and with local, state and federal public health guidance to consider any changes to system-level guidance. 

The Board of Regents, under Montana Code Annotated § 20-25-301(10) confers on the President of the University the authority relating to the “immediate control and management” of the University unit, in this case Montana State University (MSU).  Under Montana Code Annotated § 20-25-305(1), subject to the supervision of the regents, the University President is responsible for the immediate direction, management, and control of [her respective university] unit[s], including . . . practical affairs.  The mask mandate falls under this authority of the University President conferred on her by the Board of Regents and Montana statute. 

 

Mask Mandate

Current Mandate: As of September 17th, 2021, mask are required in the following locations for all students and staff: Indoor Hallways, Offices, the MSU Library, the SUB, MSU Residence Halls, Dining Halls, Indoor Instructional Spaces.  Indoor Instructional Spaces remained defined the same as within the past mandate.[1]

 

Past Mandate: On August 26th, 2021, President Cruzado required face masks or coverings in all indoor instruction spaces and recommended using face masks in all indoor spaces on campus to last until October 1st, 2021.   President Cruzado’s mandate aligns with the guidance from the Centers for Disease Control and Prevention issued in July, which encourages face masks indoors in places with “substantial” or “high” transmission rates, such as Gallatin County. 

The University has informally defined indoor instruction spaces to include instructor-controlled spaces, classrooms, laboratories, studios and any indoor space where an MSU course is taught.

The University has instructed faculty members to enforce this mandate under the Student Code of Conduct 460.00 (Disruptive Student Behavior).  The policy purpose under this Section is “to offer guidance to instructors to maintain order in the classroom, laboratory . . . and throughout the educational process.”  Disruptive behavior is defined as “any behavior that a reasonable instructor believes substantially interferes with the teaching or learning process . . . and continues after a faculty member request to cease.”  As stated in the Student Code of Conduct 460.00 above, a faculty member must ask student to stop the behavior prior to engaging the Dean of Student’s Office.  https://www.montana.edu/policy/student_conduct/  

In the present case, the University has defined failure to wear a mask as disruptive behavior under this section of the Student Conduct Code.  We can assume that enforcement of this part will be somewhat discretionary as some faculty will be more lenient than others when enforcing mask wearing.  

 

Code of Student Conduct – Mask Violations

 

Every student who is enrolled at MSU is subject to the Student Conduct Code as a condition of their enrollment.  For purposes of student conduct, the University considers an individual to be a “student” once an offer of admission has been extended and during the student’s attendance. The Code of Student Conduct applies to behaviors that take place on campus as well as in other situations or scenarios that are not relevant to the present analysis.

If a student does not put on their mask after a faculty member requests compliance, the faculty member may submit a report to the Dean of Students.[2]  In the event a faculty member deems it necessary, the faculty member would write a report, include a description of the violation, and bring the alleged misconduct forward to the Dean of Students’ attention.  The Dean of Students Office would then create an incident report and open a conduct case.  When the Dean of Students opens a conduct violation case, the student can expect the following:

  1. The student is notified via email of the conduct violation for failure to wear a mask
  2. Student will meet with a Conduct Officer at a Conduct Meeting to discuss the violation
  3. The student has the option to sign an Administrative Agreement or request a full Conduct Hearing
  4. As part of an Administrative Agreement the Conduct Officer will offer the following:
    1. First Mask Offense: Warning
    2. Second Mask Offense: Probation
      1. Meaning: For some length of time (TBD by the Conduct Officer), if you don’t get into any additional trouble, you will not be punished.
    3. Third Mask Offense: Semester Suspension
    4. Fourth Mask Offense: Expulsion
  5. If you choose to go to a Conduct Hearing the sanctions imposed are typically more severe than the Administrative Agreement.

Note:  The Dean of Student’s Office gathers evidence of a student’s violation of the Conduct Code as part of their internal investigation of the alleged misconduct.  Therefore, it is important to choose your words carefully if you write the Dean’s Office or sign a Petition.  It could be used as evidence against you in a Conduct Hearing or Conduct Meeting. 

when a violation of the student code of conduct or residence life policies occurs, an incident report and conduct case are created and managed by a MSU conduct officer. students involved in the alleged violation will receive a notification via email outlining where, when or how to schedule their conduct meeting. At the conduct meeting, the students will have an opportunity to discuss the incident with a university conduct officer. Based upon the discussion, preponderance of the evidence and willingness to accept responsibility, an administrative agreement may be offered. An administrative agreement is an agreement between the student and conduct officer outling the students responsibility and the recommended sanctions. If an argument cannot be reached, that student will receive a notification via email for a formal conduct hearing. If the student agrees to and signs the administrative agreement, he/she must complete the sanctions by theagreed deadline. The right to appeal is waived when the student agrees to the administrative agreement. At the conduct Hearing, the student involved will be able to discuss the incident with a hearing officer. the hearing officer will determine responsibility of the student. If a student is found responsible for a violation of university policy, he/she will be assigned sanctions to be completed by the deadline provided.

Recent Constitutional Challenges

 

In recent months, there have been several constitutional challenges in the United States to universities and secondary schools mandating COVID vaccination and masks.  

On August 19th, 2021, the South Carolina Supreme Court unanimously ruled that the University of South Carolina has the right to require all students to wear masks indoors to prevent the spread of COVID.  The South Carolina Legislature passed a proviso (budget bill) that prohibited Universities from discriminating against unvaccinated students, faculty, and staff by requiring them to wear masks.  The Supreme Court ruled that the University’s universal mask mandate was legal, although a mandate requiring only unvaccinated individuals to wear masks would be a violation of the law. 

Indiana University mandated all students attending the school this fall receive the COVID-19 vaccine by August 23rd, 2021. A group of students sued the University and the 7th US Circuit Court of Appeals ruled that the mandate did not violate any constitutional right.  The mandate includes health and religious exceptions but requires students who take them to wear masks and be tested frequently.  The Court stated that the students “just need to wear a mask and be tested, [which are] requirements that are not constitutionally problematic.” The Court added that vaccination is a condition for attending the university and those who do not want to be vaccinated may “go elsewhere.”

United States Supreme Court Justice Amy Coney Barrett denied the request to block Indiana University’s vaccine mandate, leaving the vaccine mandate in place. 

The 7th US Circuit Court cites a case from 1905, Jacobson v. Massachusetts, 197 U.S. 11 (1905) which upheld the State’s right to require smallpox vaccinations.  Legally, the consensus is that in most situations, these mandates are legally permissible.  Historically, courts have given state entities deference when balancing public health interests against individual liberties. https://supreme.justia.com/cases/federal/us/197/11/  

A recent lawsuit filed in Montana by Stand Up Montana Inc. and a group of parents challenges the legality of the mask mandate in Missoula public schools.[3]  The lawsuit also asks for an injunction (a judicial order that stops a behavior or a rule) to remove the mask mandate.  If an injunction is granted, the Court would order the Missoula public schools to refrain from mandating masks while the Court decides on the outcome of the case. The Court has not yet ruled on the injunction.  See the Complaint here:

https://ewscripps.brightspotcdn.com/04/e5/75dbb2074d119f4a96284ba75785/1-complaint.pdf

Previously in March, a Missoula Judge denied an injunction requesting the Missoula mask mandate (among other mandates) be removed.  The injunction was requested by a group of business owners after Governor Gianforte rescinded the state-wide mask mandate.  

 

Recent Mask Developments

 

Guidance from State Government:

On August 31st, 2021 Governor Gianforte promulgated an emergency rule that states any school and school district must consider, and be able to demonstrate consideration of parental concerns, when adopting a mask mandate.  The order further states that schools and school districts should provide students or parents with the ability to opt-out of health related mandates, to includes wearing a mask or face covering, for reasons including: (a) physical health; (b) mental health; (c) emotional health; (d) psychosocial health; (e) developmental needs; or, (f) religious belief, moral conviction, or other fundamental right the impairment of which could negatively impact the physical, mental, emotional, or psychosocial health of students. AUTH: 2-4-303, 50-1-202, 50-1-206, MCA; IMP: 50-1-202, 50-1-206, MCA.

Please note this does not affect University students, only students in secondary Montana public schools. Many school districts have kept their mask mandates in place as of this week. https://dphhs.mt.gov/assets/rules/37-960emg.pdf  

Guidance from Federal Government:

The Education Department has begun investigating five states that have prohibited universal mask mandates in secondary schools.  The Education Department is concerned that by prohibiting masks the schools may be restricting access for students who are protected under federal law from discrimination based on their disabilities and who are entitled to a free public education.  The Department cites the Centers for Disease and Control and Prevention that recommends everyone in schools wear masks, regardless of vaccination status. If the Education Department finds discrimination, the secondary schools could be at risk for losing federal funding. Please note the Education Department is investigating secondary schools, not universities. 

 

Remedies

 

So, you don’t want to wear a mask.  What can you do?

 

Here are some options:

 

  1. You may withdraw from the University. If you withdrew by August 31st, 2021 you received a full refund on tuition. There are no updates on whether this period will be extended.

 

  1. You can protest this mandate. If you choose to do this, please take a look at the website regarding freedom of expression on MSU campus: https://www.montana.edu/freespeech/index.html

 

  1. You can sign a Petition. Please note that the Dean of Students will keep a record of all written correspondence as evidence of conduct code violations.  Please be careful about the language you use.

 

  1. You can ask your Senate leadership to stage a town hall meeting with stakeholders. Find your Senator here: http://www.montana.edu/asmsu/senate.html

 

  1. If you have a disability and you can prove it, you can request special accommodation.
  2. You can be angry about it and still wear a mask anyway. Be creative and find a mask that notifies others of your opinion.  You have a First Amendment Right to protected speech (just make sure your mask is not considered disruptive in class).

 

 

  1. You can write an opinion piece for the local paper or for the MSU Exponent.

 

  1. You can lobby your Montana lawmakers or the Board of Regents to take action regarding the mask mandate. https://directory.mt.gov/govt/state-dir/agency/highed

 

  1. If you have been strongly affected by the mask mandate, you can always make an appointment with Counseling & Psychological Services

https://www.montana.edu/counseling/ or drop by for a “Let’s Talk” drop in visit.

 

  1. Nuclear Option: You can try to find a lawyer or nonprofit that would be willing to bring a lawsuit against the University.  Typically, these types of civil constitutional cases take a long time and are expensive to pursue.

 

Guidance regarding masks will change depending on the COVID circumstances in Gallatin County.  We will keep abreast of these issues as changes arise and notify ASMSU Leadership of any substantial developments.

 

ASMSU Legal Services

 

Note: Minor edits by Caroline Roeder; ASMSU Senator; College of Agriculture

 

[1]Paragraph inserted to reflect current university policy on 9/20/21.  Edit made by Caroline Roeder; ASMSU Senator; College of Agriculture.  Information source: https://www.montana.edu/health/coronavirus/archived-comms/21455/expanded-guidance-on-face-masks

[2] It appears submitting a report remains discretionary rather than obligatory (i.e., the faculty member can decide whether to submit a report to the Dean’s Office).

[3] Please note that secondary public schools and post-secondary institutions (i.e., public or private universities) require a different legal analysis and are subject to different legal frameworks.  Therefore, the outcome of this lawsuit is not necessarily binding on MSU.

 
Fellow MSU Students, During the 67th Montana Legislative Session, the Montana Legislature passed several bills that directly impact higher education and students across Montana, including at Montana State University (“MSU”): House Bill (“HB”) 102, 112, and 349, and Senate Bill (“SB”) 319. Traditionally, policies that have direct implications on higher education are established by the Montana Board of Regents (“BOR”). The Board of Regents has clear and full constitutional authority to govern all higher education policy as outlined in the Montana Constitution. Article X, § 9(2)(a) provides: The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system and shall supervise and coordinate other public educational institutions assigned by law.¹ We identify significant consequences for Montana State University students that stem from the legislature’s constitutional overreach on the Board of Regents. First, maintaining the Board of Regents’ constitutional authority critically ensures that Montana State University students can directly influence policy decisions made by the BOR that affect our campus. The recently approved legislation shifts the power of higher education policy making from the BOR to the legislature, undermining the opportunity for student input. Secondly, the BOR was created to avoid academic institutions from becoming politicized. When the legislature passes laws that affect higher education and usurp the BOR’s authority, a dangerous precedent is set; students and universities will be at the whim of the political swings of the legislature. In the future, a precedent would be established for any political party in power to rush to enact laws targeting students’ rights without student input. This is a direct violation of the separation of powers that was intended by the framers of the Montana Constitution. Since the Associated Students of Montana State University (“ASMSU”) prioritizes and amplifies student voice, values the separation of powers in government, and recognizes the importance of following the Montana constitution, the actions by the Montana Legislature are significantly concerning. Specifically, the actions of the Montana Legislature will compromise ASMSU’s ability to govern according to the regulations established by the Board of Regents. We feel this is not in the best interests of the students of Montana State University. ASMSU was approached by an attorney to become a plaintiff in a lawsuit against the Montana Legislature to act as a prominent voice for students at MSU and across Montana. The case asks purely legal questions of the legislature’s constitutional authority to directly regulate higher education. To be clear, the substance of the bills enacted is not being questioned. After consulting with ASMSU Legal Counsel, and communicating with the plaintiff’s lawyer, ASMSU called a special session of the Senate to determine which action, if any, should be taken. The special session followed Montana Open Meetings Law procedures. During this meeting there was great deliberation among senators, culminating in a final vote in which the Senate elected to join the lawsuit as a plaintiff. ASMSU is but one of many plaintiffs in this case. Shortly after ASMSU and others joined as plaintiffs, an injunction was placed on HB 102 by a District Court Judge, temporarily pausing the implementation of the bill. This injunction stays the implementation of the new state law mandating the BOR allow open and concealed carry of guns on public college campuses that was scheduled to go into effect June 1st. The injunction indicates the judge is concerned about the legislature’s constitutional overreach.

If you would like to contact ASMSU to learn more about this lawsuit, or comment on how ASMSU should proceed further, please contact your senator here. We appreciate your input, and we aim to serve students as effectively as possible. Sincerely, ASMSU MUS v. State of Montana Task Force: _____________________________ Norris Blossom, President _____________________________ Lucas Oelkers, Chief Justice _____________________________ Nicholas Fitzmaurice, Senator _____________________________ Pushya Krishna, Senator