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Inconsistent masking policy between university academics, athletics calls interpretation of state law into question, legal experts say

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An OU student apprehensively removes her mask following the shedding of OU's masking and social distancing requirements.

Though members of the media were required to wear masks at a recent OU football press conference, OU administrators are only “strongly encouraging” masking at a university level, drawing questions about unclear university and state policy from OU faculty and government officials.

Reporters met Thursday afternoon at the Valero Champions Club for a press conference with OU head coach Lincoln Riley and defensive coordinator Alex Grinch as players attended on a separate Zoom call. An email from an athletic department spokesperson requested all media wear masks inside the stadium club “regardless of vaccination status.”  

“Media are required to wear a medical-grade mask (no gaiters) for the Riley and Grinch pressers and will need to clear the stadium club within 20 minutes of the virtual players session ending,” the statement read. “Media without a mask will be provided one.”

The department’s spokesperson wrote in an email to The Daily the extra precautions were recommended by athletics medical staff, and the mandate was described as an extra precaution in the “tight quarters of the football facility.” 

While masked reporters filled the club, some OU faculty, like political science professor Michael Givel, were left wondering why they couldn’t enforce the same masking policy in classrooms, some of which place students in closer quarters than the reporters at the clubhouse experienced. 

“The athletics department has, for very good reasons — and I salute them for doing this — decided that they want to protect their athletes. Go Sooners, right?,” Givel, the president of OU AAUP, said. “That's exactly what they should be doing. … But what about students who live in dorms or in classrooms or who are eating together in the cafeteria or walking around the packed Memorial Union at noon? What about them? Athletes are great, but there's a lot of other people on campus, too.” 

While university administrators cite Senate Bill 658 and Gov. Kevin Stitt’s May 28 executive order as barring the institution from requiring masks on campus, Oklahoma House Minority Leader Emily Virgin (D-Norman) and OU Law professor Joseph Thai said the contents of both are murkier than the university’s interpretation.

SB 658, a bill authored by Sen. Rob Standridge (R-Norman) and approved by Stitt, prevents certain entities from mandating vaccinations, requiring vaccine passports or implementing a mask mandate for students who are not vaccinated against COVID-19. 

Those entities include a board of education of a public or technology center school district, the board of regents of an institution within the Oklahoma State System of Higher Education, the governing board of a private postsecondary educational institution, the Oklahoma State Regents for Higher Education and the State Board of Education or Career and Technology.

A university spokesperson wrote that, in accordance with SB 658 and Stitt’s executive order, the university is prohibited from implementing a mask mandate for students who have not been vaccinated. 

“The requirement for media to wear masks while attending press events in OU Athletics facilities is permissible as a press conference is not considered a ‘government service’ and therefore is exempt from Executive Order 2021-16,” the spokesperson wrote. “The university encourages masking indoors, and strongly encourages masking in high-density settings, such as classrooms and at special events.” 

During the conference, Riley said the football team will take additional precautions, and those will differ between its vaccinated and unvaccinated players. 

“I commend our team, (and) I think we've done a great job up to this point of getting a high percentage of our building vaccinated, and so we're in a really really good place there,” Riley said. “But at the same time, it's going to be a factor in the season, just like last year. It's going to be something we're gonna have to overcome, use to our advantage, we're gonna have to be aware of, try to be in front of and so we're certainly not taking it for granted or taking it lightly right now.”

OU Chief COVID Officer Dr. Dale Bratzler told The Daily SB 658 applies only to students. He said the governor’s order — which states that all buildings owned or leased by the state must rescind their mask mandates so all members of the public can receive government services — separates the orders of the press conference from classroom settings. 

“A press conference is not an essential government service. Those reporters do not have to come,” Bratzler said. “It's my understanding that Zoom is being offered so, if they don't like the fact that the team is asking them to wear a mask when they come because they don't want the student athletes to get infected by a reporter or somebody coming into the facility, they can do it by Zoom. … I think the position is that (students are) at the university for an official government service, which is education. The press conference isn’t.” 

Joseph Thai, a former law clerk for Justices John Paul Stevens and Byron White of the Supreme Court and Judge David Ebel of the U.S. Court of Appeals for the Tenth Circuit, now teaches constitutional law and the Supreme Court at OU. 

“As a law professor, I respectfully disagree with Dr. Bratzler’s legal conclusion that SB 658 bars professors from mandating masks in class,” Thai wrote in an email. 

Only Section 2 of SB 658 is applicable to OU and other institutions of higher education, which is the portion referencing the Board of Regents. He wrote, in his opinion, the text of the law does not prohibit OU from requiring all students, regardless of their vaccination status, from masking or professors from requiring all students to mask in their classrooms or offices. 

Thai wrote he also believes Stitt’s executive order shouldn’t prohibit OU from mandating masks for all students or prohibit individual professors from requiring masks. 

“As for the governor’s executive order, I am not aware that the governor has legal authority to regulate OU or other institutions of higher education,” Thai wrote. “The board of regents, not the governor, approves our budgets, appoints our presidents, and adopts our rules. It was the board and not the governor, for instance, that just approved our football team’s move to the SEC.” 

Although the executive order does not include a definition of “government service,” Virgin said there is an argument to be made that this bill is directed more toward state agencies who provide licenses and records, rather than a university. Since its passage, she said she has not seen the state take measures to enforce the order. 

Virgin said she feels SB 658 and the governor’s executive order is more a matter of individual interpretation than it is a black and white reading. 

“I think (the press conference masking mandate) shows that many in the university are doing the right thing and making sure that students and faculty are protected, but I would really like to see that applied throughout the whole university,” Virgin said. “Even though it looks like the bill doesn't allow for a board of regents to pass a mask policy, I'm not sure that anything would stop an individual professor from requiring masks in their class. But that's all going to be subject to interpretation under this new statute.” 

Several states have voted to allow or disallow mask mandates as the fall semester approaches. While institutions like Indiana University are mandating masks indoors for all students, staff, faculty and visitors on all of its campuses, Arkansas Gov. Asa Hutchinson signed legislation blocking most government entities from instituting future masking mandates, excluding higher education institutions. 

No matter what the decision, Virgin said institutions still have the ability to meet government officials in the courtroom if their interpretation of state law comes into question or if they hope to seek a different outcome. 

In Arkansas recently, someone sued based on a law that's similar to this, and now that law is on hold,” Virgin said. “So this is happening around the country now, where these mask mandates have been banned, but now those laws might be struck down in court. The bottom line is that there needs to be some sort of policy on masking. It’s pretty clear that that's one of the most important things that we can do along with vaccines.” 

Virgin is one of several Oklahoma House Democrats calling for a special legislative session to repeal SB 658. She said if the bill were repealed, local school districts and universities would have the power to implement policies they feel are necessary.

Although repealing the bill would leave less room for confusion surrounding state policy, Virgin said the ultimate solution would be for Stitt to declare a state of emergency. The declaration would allow school districts to require masks and create an opportunity for hospitals to avoid overcrowding. She said, however, she doesn’t believe Stitt is “ready to pull the trigger.”

“The bottom line is that these policies were implemented at a time when I think a lot of folks, especially Republican state elected officials, were thinking that they could score some points with their base while not doing a whole lot of damage in terms of COVID, but what we've seen is that it's just the opposite. That it's doing a lot of damage,” Virgin said. “We need to give local control back to these entities.” 

Givel said OU’s interpretation of SB 658 and the governor’s executive order appears predicated on the legal claim of “just following orders,” meaning the university is set in its decisions and feels “it cannot do anything else” to change its current masking policy. 

“Often — in fact, almost all the time — when courts hear this (legal claim), particularly in a criminal case, it gets tossed on its ear,” Givel said. “The ‘I'm just following orders’ claim is not a deflection or excuse of your personal actions, and that includes government officials. So then the question is, I'm just following orders, except, all of the sudden, the athletics department decides that perhaps the order isn't quite as crisp as it has been made out to be, and that raises some pretty serious, in (the OU AAUP’s) view, legal questions.” 

Cleveland County’s seven-day COVID-19 case average is 94 cases as of Aug. 4, according to the New York Times, and 70.5 percent of variant cases are the delta variant, according to the Oklahoma State Department of Health’s weekly epidemiology report for July 25-31. Givel said choosing to simply “follow orders” is dangerous during these “extreme times.”

“They may not say it but, I'm going to say it — and I know Dr. Bratzler says it, sort of, once in a while — we're in a public health emergency right now,” Givel said. “What are we going to do about it? What are the exit strategies? Certainly our great legal minds, both within the university and perhaps without, can give us some guidance on this very vague law that, apparently, the University of Oklahoma doesn't even look at as ironclad.”

The only fear Givel said he has during this process is professors will be left vulnerable under the university, as those who aren’t protected under tenure might have less of an incentive to speak up. He said until the university changes its interpretation of state law, the OU AAUP will continue to serve those instructors and staff members. 

As students return to classrooms in person, Virgin said she has had parents and students say they do not want to go back to virtual learning. If the state is not clearer on its COVID-19 policies, Virgin said, students will find themselves behind computer screens once again. 

“With these requirements on schools and universities, it really heightens the possibility for a return to virtual learning,” Virgin said. “If they just had the power to require masking on their campuses, then we likely would be able to stay in school in person, rather than virtually.” 

This article was updated at 10:38 a.m. Aug. 7 to reflect that Stitt's executive order was passed on May 28. 

news managing editor

Jillian Taylor is a journalism junior and news managing editor at The Daily. Previously, she served as a summer editor-in-chief, assistant news managing editor, news editor, senior culture reporter and senior news reporter.

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