A group of OU Law faculty compiled a report stating that Senate Bill 658 and Gov. Stitt’s Executive Order 2021-16 does not prohibit OU or its departments and faculty from requiring masking.
OU Law professor Joseph Thai and a group of law faculty sent the report in an email to The Daily in light of the university’s stance that state legislation bars the institution from enforcing masking. OU is only “strongly encouraging” COVID-19 vaccinations and masking in indoor settings, which some faculty fear will result in breakout infections as hospitalizations and delta variant cases increase.
SB 658, a bill authored by Sen. Rob Standridge (R-Norman), prevents certain entities from mandating vaccinations, requiring vaccine passports or implementing a mask mandate for students who are not vaccinated against COVID-19.
The bill’s covered 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.
Thai originally refuted the university’s interpretation of SB 658 with Oklakhoma House Minority Leader Emily Virgin (D-Norman), following the enforcement of masking at an OU Football press conference. OU faculty analyzed the second and third sections of the bill, which address COVID-19 vaccinations and the adoption of mask mandates.
Section 2 is the only part of the law applicable to the university with regards to masking, according to the report. Faculty members emphasized the portion which states the entities included in the bill “shall not … implement a mask mandate for students who have not been vaccinated against COVID- 19.”
The report states that as written, Section 2 only prohibits OU from adopting narrow mask mandates targeting unvaccinated students.
“It does not purport to ban broader masking requirements regardless of vaccination status, such as masking requirements at athletic press conferences or in classrooms and faculty offices,” the report read.
Although Section 3 generally prohibits mask mandates, it only governs a “board of education of a public school district or a technology center school district,” the report read. Based on a statutory construction principle titled “expressio unius est exclusio alterius,” the listing items of an associated group excludes all others left unmentioned. Faculty concluded that this section does not apply to OU.
Executive Order 2021-16, issued May 28, states that “before June 1, 2021, all buildings and office space, owned or leased by the State of Oklahoma and open to the public shall rescind any mandate for the wearing of masks in order to receive government services.”
Article 13 of the Oklahoma Constitution applies to public university Boards of Regents, which are “constitutionally vested with the governance of the University.” The report read that any modification to regent policy must be made through action by the board, but the OU Regents’ Policy Manual does not “acknowledge or accede to any authority by the Governor to regulate the University by executive order or otherwise.”
The OU Board of Regents adopts regulations for the university — not the governor, the report read. Examples include how the regents appoint the institution’s presidents, approve budgets and OU Football’s entrance into the SEC, without the governor’s approval.
“We are aware of no legal authority for the Governor to regulate athletics or academics at OU. The University has cited none,” the report read. “Thus, while state agencies, offices, and buildings under the Governor’s authority may not mandate masks under his Executive Order, that order has no legal application to OU institutionally or faculty individually.”
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, wrote OU is rejecting the “permissive interpretation” that state law does not ban public universities from adopting mask mandates that don't single out the unvaccinated rather than arguing for it.
“It is baffling that OU is espousing a flatly wrong interpretation of state law that hamstrings the University’s ability to protect the health of its community at a time when the Delta variant is surging, breakthrough infections are rising, and OU’s Chief Covid Officer is warning that ‘Our healthcare providers simply cannot keep going at the current pace,’” Thai wrote. “If one were cynical, OU’s legally dubious interpretation provides political cover for the University not to mandate masks.”
Thai wrote that even if OU’s interpretation was correct, it still can defy and challenge both laws as public school districts like OKCPS have recently.
Donald Bogan, an OU Law professor with a focus in litigation, wrote in an email the failure of the state and university to mandate masking has created an “unsafe work and learning environment,” putting faculty, staff and students at “grave risk.” He wrote President Joe Biden ordered Education Secretary Miguel Cardona to “investigate these failures as civil rights violations.”
“It is not hard to foresee that students, faculty and staff will get swept in the virulent Delta surge that is already pushing Oklahoma hospitals to the brink,” the report read. “Many Sooners will get Covid and some may die. OU could prevent such tragic outcomes by doing all it can under the law or fighting the law. It’s just not willing to lead on.”