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Michigan Supreme Court Invalidates Executive Orders

By Joseph B. Urban / Oct 05, 2020

On Friday, October 2, 2020, the Michigan Supreme Court released its long-awaited opinion In re Certified Questions from the United States District Court, Western District of Michigan, Southern Division; Midwest Institute of Health, PLLC, et al v Governor of Michigan, et al, Case No 161492 USDC-WD: 1:20-cv-414 (October 2, 2020) (the “Opinion”).

The case that was decided came to the Michigan Supreme Court on a certified question from a federal district court. A majority of the Justices concluded that the Governor lacked the authority to declare a state of emergency or a state of disaster under the Emergency Management Act after April 30, 2020, and that the Emergency Powers of the Governor Act is unconstitutional. The plainly worded outcome is that the Justices held that the Governor lacked the authority after April 30, 2020, to issue or renew any executive orders related to the COVID-19 pandemic.

Because of the procedural posture of the case, which only entailed answering certified questions, there is as yet no court order in place precluding enforcement of the Governor’s executive orders or pronouncing them void. The entry of such an order, either by the federal court that certified the question or a state court in Michigan based on the Opinion, will likely occur soon. 

The Justices anticipate that the executive orders will either be rendered void by an order of a court or that law enforcement agencies will be unable, as a matter of law, to enforce the executive orders. Thus, in the first footnote to the Opinion, the Justices in the majority stated, “Our decision leaves open many avenues for the Governor and the Legislature to work together to address this challenge and we hope that this will take place.” While there has been some legislative guidance to schools, which we discuss below, further guidance from the legislature and Governor in the form of law or administrative action is not immediately available.

Given that almost the entire continuing structure of education for the 2020-21 school year has been re-designed around the group of executive orders related to COVID-19, the Opinion and speculation about its aftermath has generated many questions from stakeholders in public schools.

This Alert discusses several of the large-scale issues that arise in the wake of the Opinion and provide guidance in operationalizing schools’ continuing response to COVID-19 in the absence of legislative guidance. The remainder of this article is divided into two sections: (A) unchanged guidance; and, (B) guidance now subject to change. We also provide a sample letter home to parents discussing the state of affairs following the Opinion.

While the Governor has asserted a 21-day hiatus during which her executive orders remain enforceable, and while, as discussed above, technically there has been no order entered voiding the executive orders, it would be prudent for school districts to immediately begin planning for the remainder of the school year in light of the Opinion and the anticipated voiding of the executive orders. 

We anticipate guidance from the legislature in the days and weeks ahead. In the meantime, we offer this initial analysis to focus discussion and recommend that schools continue forward with the programming and safety precautions that they have so painstakingly developed over the past several months. While the external legal framework may have shifted, the fidelity to principles of maintaining safety for students and staff remains a priority and, under Section 11a of the Revised School Code, a prerogative of the Board of Education

Unchanged Guidance

There are several areas of school operations that remain unchanged.

FFCRA Leave Provisions Remain in Effect

The Families First Coronavirus Response Act (FFCRA) is a federal law providing relief related to certain areas of impact related to the pandemic. The two most significant portions of the FFCRA that impact schools are the emergency leave provisions under the Enhanced Family Medical Leave Act and Emergency Paid Leave. These provisions under the FFCRA are discussed in our alert titled “The Families First Coronavirus Response Act: FMLA Expansions and Paid Sick Leave Extensions,” available here. These provisions are unaffected by the Opinion, although they sunset on December 31, 2020.

The Return to Learn Legislation Remains in Effect

The Michigan Return to Learn legislation (Public Acts 147, 148, and 149 of 2020) became effective on August 20, 2020. Since this was legislation, rather than an executive order or orders, it is unaffected by the Opinion. This package of bills provided more flexibility related to such things as student count, days and hours of instruction, and logging attendance.

Thus, for the 2020-21 school year, the student count is calculated using a “super blend.” The super blend count uses the 2019-20 count as 75% of the weighted count, with the 2020-21 count being weighted at 25%. 

Days and hours of instruction are also revised in the Return to Learn package to provide that, so long as schools provide student instruction in a manner that would result in an amount of hours and days necessary to deliver the content leading to course completion in a school year is observed, they will receive their full per pupil allotment. This may be accomplished by in-person, online, synchronous/asynchronous formats, digitally, or by a combination of such means.

Attendance logging generally requires 75% attendance for full receipt of state aid. For 2020-21, if a school ensures that at least one two-way interaction occurs between each enrolled student and at least one of his or her teachers during each month for at least 75% of enrolled students, full state aid will be received.

Finally, schools have developed an Extended Covid-19 Learning Plan under section 98a of the State School Aid Act, which is also unaffected by the Opinion. Required components of these plans include, but are not limited to:

  • Educational goals expected for 2020-21;
  • A description of how instruction will be delivered in 2020-21; and
  • Consultation with a local health department to develop districtwide guidelines concerning appropriate methods for delivering pupil instruction for 2020-21.

Many plans developed as part of this requirement incorporate the phases of the MI Safe Schools Roadmap (the “Roadmap”), which will be discussed below.

Board Action Remains in Effect

The Boards of Education of Michigan General Powers School Districts are empowered to provide for the safety and welfare of pupils while at school. MCL 380.11a(3)(c). Based upon requirements of Executive Order 2020-142, school districts were to have developed and adopted preparedness plans based on the Roadmap. These preparedness plans were implemented by the action of school district Boards of Education. While the force impelling the adoption of the plans may be no longer viable, the action of each individual Board stands until or unless rescinded.

Thus, all safety standards, protocols, and other measures set forth within the various preparedness plans remain the policy of each adopting Board. Likewise, the use of the Roadmap as a point of reference remains viable regardless of whether its enforceability may have been extinguished.

It is important here to note that the Roadmap was authored as a collaborative project involving numerous educational stakeholders that included school personnel, mental health professionals, administrators, legislators, and the like. Although the Opinion means that EO 2020-142, which compelled adherence to the Roadmap, will shortly be nullified, the Roadmap remains a valuable source of guidance to schools on several subjects and provides a valuable compendium of best practices unless or until it is updated or changed for further legislative action or action by local authorities. For purposes of preserving governmental immunity from tort liability, reliance upon this document and its structure and content is a prudent means to demonstrate that school districts have been vigilant in protecting students, staff, and stakeholders. Those who choose to abandon the document, its structure, and its recommendations or Board adopted preparedness plans created under EO 2020-142 should carefully consider any replacement with the governmental immunity statute and its requirements in mind.

Athletic Rules Remain in Effect

As an independent body, the Michigan High School Athletic Association (“MHSAA”) has promulgated rules and policies related to the conduct of athletic contests during the pandemic. While the Opinion does not alter those rules and policies, it may be that the MHSAA will revisit and revise them in light of the Opinion.

Areas Subject to Change

Perhaps the largest area of change is the vacuum created by the sudden pronouncement by the Michigan Supreme Court that the executive orders schools have relied upon to continue their operations are no longer viable. The structure created around those executive orders provided a uniform, statewide means of implementing the health and safety recommendations of the Centers for Disease Control, local health departments, and the like. At this point, it is possible that many school districts may revise or amend the policies they adopted under the structure of EO 2020-142, which mandated compliance with the Roadmap. The scope or effect of such actions cannot be predicted in advance, nor can their impact on adjoining school districts, consortia, or other combination entities of which school districts are a part.  

There are several concrete areas of change that will need to be assessed, as follows.

Teacher Evaluations

The need for teacher evaluations was initially suspended in Executive Order 2020-35 (rescinded). That suspension was continued in Executive Order 2020-142. The dissolution of these Executive Orders by way of the Opinion now begs the question of how school districts will implement the evaluation process for the 2020-21 school year, which is now underway. With the continuation of state assessments, as described in the 2020-202 Guide to State Assessments published by the Michigan Department of Education on September 29, 2020, the need for attentiveness to student growth scores, which now constitute 40% of teacher evaluations under MCL 380.1249, will need to be considered. 

Meetings of Boards of Education

The strict implementation of the Michigan Open Meetings Act (“OMA”) was suspended initially with Executive Order 2020-15 (rescinded) and replaced by an executive order on the “Temporary Authorization of Remote Participation in Public Meetings” under Executive Order 2020-48 (rescinded), which in turn was replaced by an identically titled executive order, Executive Order 2020-129, and later by Section I of Executive Order 2020-154. These executive orders provided for an alternate means of conducting meetings of school boards.  

Based on the Opinion, the requirements of the Open Meetings Act should be strictly scrutinized going forward. That does not necessarily mean, however, that remote meetings are no longer permitted. While the permissiveness under the executive orders has been called into question, there is nothing in the Open Meetings Act that forbids fully remote meetings. Most observers had taken the position pre-COVID that an Attorney General Opinion from the 1970s and a Court of Appeals opinion from the 1990s combined to make remote participation by Board members permissible, although most also recommended that a quorum be physically present.

Because many Boards have been meeting remotely since March and have developed procedures, based on the executive orders, for satisfying the Open Meetings Act while meeting remotely, those boards that wish to continue meeting remotely for public health and safety reasons will have a supportable argument that such meetings are permissible. Under their power to protect health and safety, nothing prevents boards from imposing reasonable capacity limits, social distancing, and mask requirements for live meetings, even if those requirements are no longer specifically required by executive orders. 

School districts that are considering high-stakes board action, such as terminations, tax levies, bond propositions, financing, calling of elections, and the like should consult their counsel on these issues, and may very well be advised to meet in person to undertake such actions.

It should be noted that many local jurisdictions have put mask ordinances and rules into place. Oakland County Health Department, for example, on Saturday, October 3, issued an order requiring mask-wearing when in public spaces.

Before returning entirely to their pre-COVID procedures, boards should consider the continuing public health concerns in deciding how their meetings should proceed.  

Conclusion

The Michigan Supreme Court has nullified the outside legal structure requiring the adoption of local board policies based on the Roadmap. While there has been no order repealing the executive orders or stating that they are unenforceable, it is nevertheless true that they have been vitiated. It would be prudent for local school boards to consider how they will move forward with the policies they have previously adopted until such time as the legislature may replace them.

Sample Letter Home

Dear Families,

You may have heard news reports about the latest decision of the Michigan Supreme Court stating, for several legal reasons, that the issuance by the Governor of executive orders related to the COVID-19 pandemic is no longer valid on a continuing basis.

We are writing to you to let you know that, over the past few months, we have worked with educational leaders and stakeholders at numerous levels in government, the fields of health, psychology, and epidemiology, and education experts. While that collaboration occurred under the auspices of the various executive orders whose validity the Michigan Supreme Court has called into question, there has thus far not been an order entered in any court invalidating the executive orders related to COVID-19. Also, the product of our collaboration was adopted by our Board of Education as policy for our school district. That policy survives any judicial action.

As a local board of education, we have the responsibility to maintain safety for all of our students and staff, as well as their families. We likewise can adopt policies to keep these stakeholders safe.

After careful consideration, and unless or until we receive additional or other guidance from lawful authority, we will be maintaining our way forward into the 2020-21 school year as articulated in our return to school plan adopted under the Safe Schools Roadmap, as well as those procedures incorporated into our preparedness and response plan as it relates to COVID-19.

If you have any questions as we work through the challenges presented by these extraordinary times, please feel free to contact me.