BENZONIA — A northern Michigan school district is at risk of fines and further legal action following a board of education decision to defy a public health order.
Benzie Central Schools trustees voted 5-2 on Monday to ignore a public health order issued by the Benzie-Leelanau District Health Department that instructs districts to “immediately adopt a policy requiring universal masking indoors” for all K-12 staff, students and visitors regardless of their COVID-19 vaccination status. The district remains mask optional heading into the first day of school Tuesday.
BLHD Health Officer Lisa Peacock and Medical Director Josh Meyerson released the order to area superintendents Friday, citing increased COVID-19 cases and a rising transmission rate of the infectious disease. Peacock and Meyerson believe school-related cases will “increase sharply” without universal masking. They also issued the same order from the Health Department of Northwest Michigan, which affects Antrim, Charlevoix, Emmet and Otsego counties.
Board President Brian Childs, Vice President Nicki Brown, Secretary Stephanie Johnson, Treasurer Amber Pomper and trustee Chris Noffsinger all opposed the public health order. Trustees Lori Cota Hill and Jason Barnard voted in favor of following the health department’s legal mandate.
The board not only defied the public health order, it also went against Benzie Central Superintendent Amiee Erfourth’s recommendation as well as advice from the district’s lawyer and state legislators to adopt a universal masking policy. Erfourth said she told the trustees a public health mandate carries the same weight as a law and the board could be jeopardizing the health of students and staff as well as the district’s ability to remain open.
“They felt they were owed some explanation as to why they, as elected officials, did not have the ability to make the decision,” Erfourth said. “Many of them still firmly believe that parents should be allowed to make decisions for their children.”
Childs spoke twice during public comment at a Benzie County Commissioners meeting Wednesday.
He voiced concerns about the mandate and spoke out against trustees giving up their “rights as a duly elected board to set policy for what’s best for our district.” Childs maintained that having “one person with no oversight,” referring to Peacock, tell the board what to do is unacceptable. Several county commissioners referred to the order as governmental overreach.
Childs also focused on the phrase “duly elected” and said the commissioners, the health department and the public should do the same. Childs said duly elected officials should be allowed to do their jobs and that Peacock’s order took away that ability from him and his fellow trustees.
Peacock also spoke to and took questions from the Benzie County commissioners Wednesday. She said the order was a “last resort” because very few school districts followed the guidance from the Centers for Disease Control and Prevention to implement mandatory universal masking indoors at schools. School boards choosing to not adopt universal masking policies is “dangerous for children,” Peacock said.
“I do have a statutory authority and obligation under the public health code to protect the health of the public,” Peacock said to the commissioners, adding that her decision does not legally require permission or consultation from the board of health.
The code Peacock directed commissioners toward is Michigan’s public health law — written and enacted by state lawmakers — and grants Peacock and other local health officers authority to issue public health orders, including the one Friday requiring boards adopt universal masking policies.
Those defying public health orders could be charged with a misdemeanor and face penalties.
Mancelona Public Schools Board of Education President Burt Thompson said in a prepared statement that the health department’s order is not subject to review by elected officials. Thompson said the Mancelona board cannot ignore the order.
“It is not a choice,” he said, adding that if the district intentionally chose not to follow it, a court could rule that any injury or death that results from not following the order as equal to “gross negligence.”
Thompson said the health department can shut down a school that is not in compliance.
Brad Banasik, legal counsel and director of labor relations for the Michigan Association of School Boards, released guidance about following health department mandates to all of the school districts he serves. Banasik confirmed that failure to comply with the order allows the health department to seek an injunction to from a circuit or district court judge.
Representatives from the BLHD and Health Department of Northwest Michigan did not return requests for comment on what action, if any, will be taken against the district if officials persist against the order.
Health department officials have to decide if wading into the legal arena is worth it. Nicholas Roumel, an attorney specializing in education law, said they would not only be stepping into the legal arena but the political one as well, given how polarizing the debate over masks in schools has become. That would be a calculated risk, Roumel said.
“(It’s) like a petulant child who throws a temper tantrum because he or she doesn’t want to do what mom or dad asks. What is the parent going to do? Are you going to let the child get away with it? Or are you going to do something about it?” said Roumel, a former Ann Arbor Public Schools board trustee. “If they (the Benzie school board) want to do this, they may be putting kids at risk. They want to make a political statement, and it’s up to the health department if they want to do anything about that.”
Erfourth expects her board of education to revisit the issue.
Childs also said as much during the county commissioners’ meeting.
“We’re going to have to do what we have to do,” he said. “Decisions are going to have to be made later this week. I get it. We’re in a tough spot.”