6/11/20 Legal Masks Art

“How very sheepish … I won’t wear one,” one Facebook user writes. “This is all getting to be really ridiculous.” Another adds, “People need to start living life again without masks.”

Throughout the current pandemic, several businesses, cities and even states have required, or at least attempted to require, face coverings in public.

Each attempt has seemingly been met with varying degrees of outrage.

In April, Ohio Gov. Mike DeWine announced all citizens would be required to wear masks in public stores statewide. The resulting outcry, some of which claimed the requirement was unconstitutional, was so overwhelming that the governor canceled the order the next day.

Despite the dissent, more and more universities, including Purdue, are announcing it will be mandatory to wear a mask as plans to bring back students to campus safely are rolled out. Are they on solid legal ground?

Professor Seema Mohapatra of Indiana University’s McKinney School of Law says, “Yes.”

During public health emergencies, Mohapatra says states and other facilities are given a lot of leeway to protect the public. She says if the mandate was legally challenged, as long as it was deemed “reasonable,” a court would likely rule in the University’s favor.

Mohapatra says this is because of a landmark U.S. Supreme Court case, Jacobson v. Massachusetts, when, in 1904, a citizen challenged the state’s authority to require citizens to be vaccinated. Because the argument was addressed during a smallpox epidemic, the court ruled in favor of the state.

“Most public health cases, in terms of any kind of restriction, end up referring to that case because it really was the first time that it set forth what, (and) how, a state has the right to regulate the actions of individuals for a public health purpose,” Mohapatra says.

Mohapatra adds that, for those who are medically unable to wear a mask, the University will have to make accommodations, in accordance with the Americans with Disabilities Act of 1990.

Why is there an outcry at all?

Gerard Magliocca, a constitutional law professor at IUPUI, says these types of claims mainly stem from the simple fact that clothing is a form of expression.

He says, “The strongest First Amendment argument would be, ‘Hey, I think this is all a bunch of hype, and so I’m (not) gonna wear this mask (out of) protest.’”

Magliocca, interviewed separately, agrees with Mohapatra’s assumption that if the mask policy were legally challenged, a court would rule in favor of the University. As long as Purdue allows individuals to protest in manners other than directly disregarding the policy itself, like wearing a T-shirt or hat with that message written on it, he adds, the policy is legally permissible.

Magliocca, then, begs the question: “If (Purdue) can require you to wear shoes, why is a mask different?” Both of them are requiring an individual to wear something, after all.

In fact, how and why the government can even mandate that clothes be worn in public in the first place is a contested topic.

“It’s an interesting question that First Amendment lawyers spend a lot of time thinking about, (mostly) in a classroom setting,” Magliocca says. “Sometimes there’s a rule that we don’t really have a great reason, but everyone agrees it should be a rule.”

The ubiquitous “no shirt, no shoes, no service” rule is not backed by federal law, but institutions across the country have agreed that it’s needed. Magliocca cites a U.S. Supreme Court case, Barnes v. Glen Theatre Inc., that helps explain this.

The ruling in that case, which referred to wearing clothes in public spaces in general, states such mandates further “a substantial government interest in protecting order and morality.”

What are the consequences?

Both professors are unsure how a mask-wearing policy, which Indiana University and IUPUI have also adopted, will be enforced.

Magliocca asks what happens if someone just left it in their dorm room? Do professors have to tell them to leave and miss out on a day’s worth of education?

The answers are not yet clear, as Purdue officials have been vague when the consequences for those who break the rule have been questioned.

According to the Protect Purdue website, “Failure to comply with this COVID-19 protocol may result in disciplinary action through existing disciplinary processes.” Purdue spokesman Tim Doty says a referral to the Student Conduct process can occur, though he noted that would only happen “if no other options exist.”

“Our plan for enforcement of the regulations includes (creating) a culture that understands and embraces personal responsibility,” Doty said in an email. “We believe our students will embrace (them) on their own without requiring any type of heavy enforcement.”

This mindset was addressed when Purdue President Mitch Daniels testified to the U.S. Senate Health Committee last week. “We’re going to appeal to students’ altruism,” Daniels said. “I’m frankly gonna tell them, ‘There are a lot of cynics out there who don’t believe you’ll do this. They think you’re too selfish and self-indulgent.’”

It was reiterated at a University Senate meeting Monday.

“It is our expectation as a member of this proud and strong community that people will follow the new rules,” said Beth McCuskey, vice provost of student life. Ethan Braden, senior vice president of marketing and communications, added that he wants to “create communitywide mindset, a culture of (students) taking care of themselves, those around them and physical spaces.”

The plan is also unclear on how the mandate will apply to faculty and staff. A Purdue employee, who asked to remain unnamed, says even the guidelines he was given are vague.

He says employees were told that if a staff member is unable to get a note from the doctor and doesn’t wear a mask, there will be “disciplinary action.” No further details were provided by Operations and Management, the department for which he works.

He says the general understanding is the standard disciplinary system applies: “First you get a verbal warning, then you get a written warning, then ... you could be terminated.”

The mask requirement also applies to visitors over whom the University has no punitive control, and no information has been released on how such offenses will be handled.

Purdue Police Chief John Cox did not respond to several attempts to discuss how police may or may not be involved in the process.

The bigger picture

With Daniels often publicly saying the coronavirus poses “almost zero lethal threat” to a majority of Purdue’s population, some are worried the policy might end up being disregarded.

“Claiming that ‘our age bracket is safe’ disregards all immunocompromised students my age,” a student in the College of Engineering said on Facebook. “The pledge won’t be taken seriously by students. … I feel students’ legitimate concerns don’t matter anymore.”

Mohapatra is worried about where the mask debate has gone. “It really shouldn’t be a political statement, and unfortunately it’s becoming like that,” she says.

And with a plethora of misinformation about the effectiveness of masks going around the internet, members of the Purdue community implore everyone to do their own research and do what’s best for everyone.

“If you don’t believe in science, don’t come to Purdue!” one Facebook user wrote. Another added, “Ignorance is not a virtue, sweetie. Bye.”

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