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Mask Policy Memorandum
To: ASMSU Leadership
From: ASMSU Attorney
Re: Mask Policy Memorandum
September 2nd, 2021
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.
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.
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. 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:
- The student is notified via email of the conduct violation for failure to wear a mask
- Student will meet with a Conduct Officer at a Conduct Meeting to discuss the violation
- The student has the option to sign an Administrative Agreement or request a full Conduct Hearing
- As part of an Administrative Agreement the Conduct Officer will offer the following:
- First Mask Offense: Warning
- Second Mask Offense: Probation
- 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.
- Third Mask Offense: Semester Suspension
- Fourth Mask Offense: Expulsion
- 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.
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. 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:
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.
So, you don’t want to wear a mask. What can you do?
Here are some options:
- 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.
- 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
- 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.
- 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
- If you have a disability and you can prove it, you can request special accommodation.
- 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).
- You can write an opinion piece for the local paper or for the MSU Exponent.
- 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
- 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.
- 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
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
 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).
 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.