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OU cites ‘ambiguity’ in public space definition in implementing temporary mask mandate

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COVID kids

Graphic of people wearing masks. 

On Jan. 10, OU announced masks will be required in classrooms for the first two weeks of the spring semester. The decision has attracted renewed criticism as it contradicts previous statements that state law prohibited OU from mandating masks.

As early as August 2021, some OU Law professors were skeptical of the reach that Senate Bill 658 and Executive Order 2021-16 had to prevent a general mask mandate at OU. SB 658 alone only prevents some entities from implementing vaccine mandates, requiring vaccine passports or requiring masks for unvaccinated individuals. The executive order requires buildings and spaces operated by the state to “rescind any mandate for the wearing of masks in order to receive government services.”

“After continued consultation with other universities in the state, the consensus is that there is some ambiguity in the interpretation of what constitutes a public space,” a university spokesperson wrote in an email to The Daily. “Given the high likelihood that one or more members of any class would return to campus with COVID, coupled with the university’s commitment to high-quality, in-person instruction, (OU) has chosen to adopt an initial two-week mask mandate in classrooms only.”

In a policy carried over from the fall semester, OU professors are also able to institute a two-week mask mandate after a positive test in their classrooms.

When asked specifically what language the university feels “provides some latitude” for establishing mask mandates in either of the statutes, or if the university could have implemented a broader mask mandate last semester, OU responded only with the above statement.

For the week of Jan. 6 to Jan. 12, 134 positive cases were recorded out of 536 tests conducted only by OU Health Services — a 25 percent positivity rate. OU Chief COVID-19 Officer Dr. Dale Bratzler said he expects substantial spread as universities return to in-person instruction.

The OU chapter of the American Association of University Professors issued a press release on Jan. 11 calling the mask mandate an acknowledgement of “what many bonafide legal experts have stated all along.”

“After continual claims, assertions, and public relations press releases throughout the (fall) semester that a common-sense masking policy for COVID-19 protections was not legally possible … OU abruptly changed course and instituted a temporary two-week mask policy,” the press release read. 

The OUAAUP called on the university to implement mandated masking for the entirety of the spring semester, pointing to Oklahoma State University’s policy of allowing instructors to move classes online for the initial two-week period in addition to requiring masks during in-person instruction.

An OSU spokesperson wrote the university’s interpretation of the law and public space means that a university classroom is not a public space while classes are in session, allowing OSU to mandate masks in the classroom “for limited periods of time or following positive cases,” similarly to OU’s policy.

“The rationale for the baseline of Feb. 1, 2022, from a public health perspective … has not been provided,” the OUAAUP release read. “As omicron COVID-19 cases soar, why this major public health emergency would have subsided by that date is not known and justified.”

In a Jan. 10 statement, a university spokesperson said OU implemented the two-week mandate as it is “virtually assured that individuals will unknowingly be infected return to the classroom, which is why the spring 2022 temporary modification assumes there will be infected individuals in the classroom within the first two weeks of class.”

OU Law Professor Joseph Thai wrote that OU leadership “continues to gaslight our community on the legality of mask mandates to excuse its moral and legal failure” to protect community members’ health.

“OU leadership deliberately spread COVID misinformation that state law forbids the university from adopting a general mask mandate,” Thai wrote in an email. “But read the law for yourself, OU: state law only forbids a targeted ‘mask mandate for students who have not been vaccinated against COVID-19.’ It does not forbid a general mask mandate for all students, faculty and staff.”

Gov. Kevin Stitt’s executive order forbidding mask mandates for receiving government services, Thai wrote, is void because the governor “has no legal authority to dictate what happens at OU,” as OU is governed by the OU Board of Regents under the state’s constitution. 

The ability for instructors to implement a two-week mask mandate after a classmember tests positive is also proof OU could implement a more general mandate if it wished, Thai wrote, as the law provides “no such exception.”

“Truthfully, OU can mandate masks two weeks after someone comes to class infected — as well as two weeks at the start of the semester, as OU is now requiring — because state law allows OU to mandate masks at any time, as long as the mandate is general and not limited to the unvaccinated,” Thai wrote. 

Blake Douglas joined the OU Daily news desk in October 2018, and is currently the editor-in-chief. Previously, Blake has served as an intern reporter, senior news reporter, summer news editor and news managing editor.

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