No same-day decision after hearing on school’s appeal of mask mandate citation

No decision was made Monday afternoon on the appeal filed by Seven Oaks Classical School, which challenged a $250 citation it had received from Monroe County’s department of health for an alleged violation of the county’s Aug. 5 mask mandate.

The mask mandate says that when community spread of the COVID-19 pandemic is high in Monroe County, as determined by state metrics, everyone “must wear a face shield, face covering, or mask…over their nose and mouth when in an indoor public place and shall at all times, follow current CDC guidelines in every situation.”

Schools get a specific mention in the Aug. 5 order: “For academic and extracurricular activities, all K-12 schools in Monroe county shall follow the guidelines of the Center for Disease Control (CDC), Indiana Department of Education (IDOE), and the Indiana State Department of Health (ISDH).”

The citation was based on a visit to the school from county health administrator Penny Caudill. The note on the citation reads: “Observed few masks, although some students, faculty and staff had masks on.”

The three-member Monroe County board of commissioners voted unanimously on Monday to wrap up the hearing after around 2 hours and 40 minutes of presentations and cross examinations that were at times intense.

Commissioners decided Monday to put off a vote on the appeal. But under the county code that regulates the appeals process for health order citations, which was enacted in May of 2021, the commissioners will have to issue a written decision not more than 15 working days from Monday.

The standards of review that are laid out by the county code on appeals of citations also formed the framework used by Seven Oaks headmaster Stephen Shipp to argue the school’s case in front of the commissioners on the Zoom video conferencing platform.

Under county code, in the context of an appeal, commissioners are supposed to review three possibilities: (1) Enforcing the health order would have an adverse impact on people experiencing a disability; (2) The appellant has a compelling interest that justifies deviation from the health order and has taken measures that ensure public health; or (3) No violation of the emergency health order occurred.

During Shipp’s 50-minute presentation, he walked commissioners through his school’s perspective on each of the three points.

If there was no violation of the health order, then the first two points didn’t need to be argued. So a lot of the focus was on the question of whether a violation had occurred. Shipp contended there had been no violation.

Following Shipp’s presentation came a cross examination of the headmaster by county attorney Margie Rice, whose role in the county government includes advising the board of health.

Rice challenged Shipp’s reading of Indiana governor Eric Holcomb’s executive order of July 29, 2021, which Shipp contended should be interpreted as meaning that schools should be left to decide what “local measures” they should enact.

Holcomb’s executive order 21-19 reads in part: “Except as provided below, K-12 schools corporations are responsible for implementing local measures and restrictions to address the impact and spread of COVID-19 in their buildings, facilities, and grounds.”

In the written papers filed by Seven Oaks, Shipp contends that the “local measures” in the executive order are those that a school decides on its own to enact: “[T]he most reasonable interpretation of ‘local measures’ is to understand the phrase to mean local measures determined and adopted by the school with respect to its grounds and facilities.”

The back-and-forth between Shipp and Rice on that point went in part like this:

Rice: So, when you went through executive order 21-19, which is, I think, the one that you thought gave you, that created that loophole or that exception. It does say in Paragraph 4 that, “except as provided below K-12 school corporations are responsible for implementing local measures, and restrictions to address the impact and spread of COVID-19 in their buildings, facilities and grounds.” How do you define the word “implement”?
Shipp: You know, I think I’ve given my interpretation of 21-19 already, I would just refer back to the same comments I’ve offered previously.
Rice: OK, so “implement” is to put into effect. So local schools are responsible for putting into effect local regulations. And you knew there was a local regulation regarding masks, correct?
Shipp: Yeah, I think here again, I want to refer back to the interpretation I’ve given. We understood that part of the responsibility of local authorities for schools, including the school board, was to implement local measures. Our school board did pass a policy that made masks optional. I implemented that policy.
Rice: OK, so you did not interpret, just to be clear, you did not interpret Paragraph 4 where—”school corporations are responsible for implementing local measures and restrictions”—you thought that meant you could decide…you thought that your board’s or your parents’ opinion trumped the local board of health? Is that correct?
Shipp: We thought that the executive order could be read, invites you to read, that the governor himself suggests that it be read, in a way that allowed a decision about masks to be made by a local school board.

Shipp’s reference to “the governor himself” looks like it was based on the same IndyStar article from July 29 that is footnoted in the Seven Oaks written appeal papers.  Here’s an excerpt from that piece:

Some of Central Indiana’s largest school districts are starting the year with mask-optional policies. “There are steps that schools can take,” Holcomb said. “Many are, as they go back. But, once they get there, then it’s gonna be the school’s call.”

The back-and-forth between Rice and Shipp on that point unfolded like this:

Shipp: I think in the case of this executive order, that there was a measure of authority given directly to the local school boards to make decisions,…including decisions about whether or not students will be required to wear a mask—which seems to be an interpretation that Governor Holcomb was publicly taking at the time that that executive order was in effect.
Rice: You talked to Governor Holcomb? Or are you taking a newspaper reporter’s story about what he said? Is that how you’re understanding what Governor Holcomb said—just that newspaper article, or did you actually have contact with the governor?
Shipp: I did not have personal contact with the governor.
Rice: And so you’re reading that from a newspaper article?
Shipp: Of the newspaper of record for Indiana, yes.
Rice: And do you believe that newspaper reporters always get everything correct when they write a story?
Shipp: No.

Shipp argued that because the Monroe County board of health had subsequently amended the Aug. 5 order to include a clarifying statement, it warranted the conclusion that the original order had been ambiguous.

The additional, clarifying statement is in bold and underlined in the county’s document: “If the CDC recommends wearing face coverings, schools SHALL require students to wear face coverings during school, unless an exception listed in Paragraph 2 applies.”

About the revision, Shipp said, “So the very fact that these changes were made indicates that the original language was determined either to be unclear or else to support Seven Oaks’s interpretation.”

Rice quizzed Shipp on the reasons why he had not attended board of health meetings leading up to the enactment of the mask mandate:

Rice: So you’ve never attended a board of health meeting, is that correct?
Shipp: Correct.
Rice: You do understand that the regulatory process for putting in place the masks begins at a local board of health, correct?
Shipp: Yes.
Rice: So that’s part of the democratic process. Can you explain why, if you are interested in democracy, you did not participate in the democratic process, and share the information that you shared today with the board of commissioners, with the board of health?
Shipp: I object to the relevance of this question. Perhaps Jeff [Cockerill, county attorney] can chime in here.
Rice: I’m asking you, why you did not attend a board of health meeting.
Shipp: As those who know me will tell you, I’m kept very busy running the school.
Rice: OK. So you did not have time to attend a board of health meeting?
Shipp: That’s correct.
Rice: Did you have time to email any of the information or your objections that you shared today with commissioners, with the members of the board of health or [county health administrator] Penny Caudill?
Shipp: I hadn’t thought it necessary, until we were cited, because I thought that we were operating within the guidelines that have been set forth.
Rice: So your objections to the local mask regulation, … you did not want to share those with the board of health, until you were cited?
Shipp: I would just remind you that our understanding of the relevant orders in place at the time of the citation didn’t pose any problem for the school’s policy.

The other two standards of review for an appeal, under the newly enacted county code, also got plenty of attention at Wednesday’s hearing.

The standard of review that describes a compelling interest justifying deviation includes a conclusion that the appellant has “taken measures that ensure public health.”

Ensuring public health was something that Shipp contended Seven Oak had done, in part through maintaining physical distance. In his cross examination of county health administrator Penny Caudill, Shipp asked, “I wonder, do you have any evidence…that Seven Oaks…has been a source of disproportionate community spread as a result of its masking policy?” Caudill replied, “Not that I’m aware of.”

Commissioner Penny Githens reacted to that line of reasoning by saying about public health, “So my understanding is that this needs to be proactive, not reactive.”

On the question of whether enforcement of the health order would have an adverse impact on people experiencing a disability, Shipp pointed to the 13 percent of the student body at Seven Oaks that qualifies for special education services.

From the written papers filed by the school: “For many of these students, the inability to distinctly see and hear classmates and teachers, or to have the benefit of social cues, presents a barrier to effective learning, whether academic or social and emotional.”

Commissioner Githens quizzed Shipp on Seven Oaks’s students with disabilities:

Githens: And then, again, referring back to the data that you provided the state for the October 1 counts for 2020. You list several students that have severe disabilities. And when I went through your list of who was on the Seven Oaks staff—Who is qualified to work with students with severe disabilities? By name, who’s that staff member?
Shipp: I’m sorry, what is your question?
Githens: OK, you’re arguing that you should have exemptions based upon disabilities of some of your students. And some of your students, according to the count that was given last year to the State Department of Education, you have several students with severe disabilities. And I want to know who on your staff is qualified, is licensed, to work with students with severe disabilities.
Shipp: I’m sorry, I’m not sure I understand the relevance of your question. I’ve merely…
Githens: …It doesn’t matter if you understand the relevance. I’m asking the question, because you raised the issue about disabilities and needing waivers for certain…well, you’re asking for us to make a decision. And so I’m asking how you get to that conclusion that they’re needed for those students, when you don’t have anybody on staff who’s qualified to work with them.
Shipp: I’m sorry, the disabilities I pointed to, by and large, are not in the category of severe disabilities.
Githens: Autism is, according to the state. So is traumatic brain injury….the orthopedic impairment that you had listed. That’s state data that you reported. So, who is qualified to be giving you the information that you would need to make these arguments?
Shipp: I’ve tried to show the bases of my arguments. I didn’t actually appeal to our special education teachers, because I thought that the best authority are not necessarily daily practitioners in many cases, but those who are conducting scientific studies relevant to the consideration relevant to the argument.
Githens: Without proper people on staff, you can’t give us data that shows that any of these kids are being held back, because they would have masks on. You have no data for those kids. And you don’t have anybody qualified to be working with them.
Shipp: I’m sorry. This line of questioning seems to obscure more than illuminate. Again, I realize, you said you’ve not had much time yet to wade through the evidence that I’ve submitted. I would encourage you to take that time. I know that there’s a window for consideration that’s allowed under the state ordinance and I think you’ll find that some of your concerns are alleviated as you work through the evidence that I’ve submitted.

After more than two and a half hours of presentations and cross examinations, county commissioners were inclined to take everything under advisement and leave a decision until later.

Commissioner Lee Jones put it like this: “It seems to me that we were given a huge amount of information on Friday that is all relevant to this topic.”

Jones continued, “And I don’t think any of us actually managed to study every bit of that information.” She added, “So I would be rather inclined to put off a vote until we can really go through all that information then and get a good understanding of it.”

County attorney Jeff Cockerill suggested that a vote could come as soon as the work session that follows this Wednesday’s (Sept. 22) regular 10 a.m. weekly meeting of the commissioners. If commissioners are not ready for a vote by then, then the following week’s work session would be a possibility, Cockerill said.