“It feels like I’ve been thrown under the bus”

By James Hanlon
Leader Staff Writer
The Oxford School Board put off discussion of whether to defy Oakland County’s school mask mandate at last week’s board meeting Nov. 9, since trustees Dan D’Alessandro and Heather Shafer were absent.
Trustee Korey Bailey moved to delay any vote on the topic until the next available meeting when all board members are present. “I think this is a big enough discussion that we need full opinions and voices of this entire board before we make a decision or vote,” he said. The motion passed 5-0.
This upset many parents and members of the public in attendance who were expecting a vote that night. The meeting remained mostly civil, but audience members interrupted board discussions several times, causing brief altercations.
According to a resolution the board passed Oct. 19, if there was no resolution to the apparent conflict between Michigan Senate Bill 82 and the Oakland County Health Division’s mandate by Oct. 29, the board “will put forth a motion to allow Oxford Community Schools to transition back to the planned processes and procedures developed prior to the mask mandate being implemented.”
The state budget bill SB 82, signed by Gov. Gretchen Whitmer at the end of September, contains language prohibiting local health officers from requiring anyone under age 18 to wear a mask, or else the health department will lose funding. Whitmer has said that part of the bill is unconstitutional and unenforceable.
Still, over the last five weeks, the Oxford School Board has sought clarification from county and state officials and the attorney general’s office. At first, responses they received did not appear to resolve the conflict. However, further communications Supt. Tim Throne had with Oxford’s representatives Sen. Rosemary Bayer and Rep. John Reilly after the Oct. 29 deadline, but before the board meeting, led Throne to publicly advise the board against taking a vote, in a message sent to the entire district Nov. 5.
In a presentation at the meeting, Board President Tom Donnelly said that on around Nov. 3 or Nov. 4 he asked Rep. John Reilly to get an opinion from the legal counsel that helped write SB 82. On a projector, Donnelly showed the response.
According to Reilly’s email, this is the “direct language” he received from colleagues in the House: “Under Michigan law, local school boards must follow lawful orders of their local health officer. If the local health officer says kids have to wear masks, they must wear masks. Further, the budget language does not, and can’t, prevent this. It can only take away funding, which is what it does.”
Donnelly said, “If we’re anywhere close to talking to the kinds of people who put SB 82 together, what they’re saying is SB 82 is not about the kids. SB 82 is about our ability to punish a health department by not giving it funds. You still have to obey (the mask mandate) until it’s gone. . . They’re telling me (SB 82) is not a law I need to follow. They’re telling me it’s not a law I can or should follow.”
Donnelly said that the response answers his conflict. But then he learned about a lawsuit recently brought against Oakland County Health Department and Lake Orion Community Schools that throws everything into question again.
Donnelly read aloud a legal briefing filed by the OCHD attorneys, arguing their upcoming defense in Oakland County Circuit Court. They argue that the mask order does not directly impose requirements on school children, just on educational institutions. So, if there is any harm caused by the mandate, liability lies with the local school district.
“The language in the Oakland County Health Division Order makes clear that the defendants are not directly mandating the plaintiff or any individual to do anything,” the brief states. “Since there is no direct obligation imposed on plaintiff by the county defendants, it stands to reason she cannot be injured by them.”
“What they’re trying to say,” Donnelly said, “is we made the rule, we didn’t tell you how to implement it. . . So we’re one step removed from anyone who could do injury or harm. Then begs the question, who could injure them? The answer to that question in the next paragraph.”
The brief continues, “The potential injury plaintiff raises is not traceable to the county defendants. The Oakland County Health Division Order does not include any penalty for school children who fail to wear a mask. Any consequence of plaintiff not wearing a mask in school would be within the exclusive provision of the school she attends.”
Donnelly said now he is confused in a whole new way. “I just simply want clarification. I thought that I had governmental immunity because I am obeying something that is being mandated of me. Hence, if I follow that mandate, I’m protected from lawsuits.
In previous meetings, Donnelly said the risk of losing governmental immunity was a main reason for not defying the mandate. “We just want to protect the district. We want to do the right thing by our families, we want to do it legally and rightly.”
For now, he said, the district needs to comply with the mandate while the board looks deeper into ensuring that they still have governmental immunity. “If injury were to occur, I’m uncomfortable, and I’d hope other board members are uncomfortable, with the Oakland County health department saying ‘Hey, I made a mandate, but I didn’t tell you how to implement it.’ It feels a bit like I’ve been thrown under the bus, and we need to get clarification.”
Over a dozen people spoke against the mask mandate during public comment, which was a little more heated than previous meetings on the issue.
One parent asked why they couldn’t just “Zoom-in” the absent board members. Donnelly said virtual meetings were only allowed temporarily earlier in the pandemic, and any vote that night would be illegal.
Bobby Roop, who previously issued a letter of intent to sue the district if they don’t drop the mandate, said the board has left him no choice but to move forward with filing the suit.
Several were against the COVID-19 vaccine clinics coming to Oxford Middle School after school hours Nov. 19 and Dec. 10. Some expect a children’s vaccine mandate to follow the mask mandate.
Melissa Kree, a school psychologist who works for the district, defended the clinics, saying they serve a need because there are fewer opportunities to access the vaccine in this more rural area.
The next scheduled board meeting is Dec. 14.