Republican-led committee votes to block COVID measures at UW schools

Echoing Republicans’ fight last year to overturn Gov. Tony Evers’ Safer at Home public health order to stop the spread of COVID-19, the Republican-led Joint Committee for Review of Administrative Rules (JCRAR) voted along party lines Tuesday to prevent officials at the University of Wisconsin System and its campuses from instituting measures to contain the COVID-19 virus. 

Democrats and university officials denounced the move and legal experts say it may not even be effective. 

After the vote on Tuesday, UW-Madison announced it would institute an indoor mask requirement starting Thursday. Madison joins UW-Milwaukee, which announced last week that it would require masks indoors and weekly tests for the unvaccinated beginning Wednesday.

The measure, which passed in a 6-4 vote that was held remotely, is meant to stop university administrators from requiring students or staff to wear a mask indoors, get vaccinated against the virus or take regular COVID-19 tests. 

Under the measure, which was introduced last week by Sen. Steve Nass (R-Whitewater), the UW System would have to seek approval from the committee, with 30 days advance notice, to institute COVID-related policies. 

“Today, the legislature through JCRAR has told the UW System they can no longer ignore state law with regards to Covid-19 mandates impacting students and campus visitors,” Nass, who has been one of the Republican legislators most critical of both higher education and pandemic restrictions in the state, said in a statement. “Government issued Covid-19 mandates and lockdowns have failed miserably in dealing with this virus. The path forward in addressing Covid-19 is not through excessive government mandates, but in the restoration of Americans being able to make voluntary informed decisions based on their individual health circumstances.” 

Last year, campuses were able to keep down outbreaks of the virus through mask requirements and regular testing. The Republican move to force university COVID policies under the control of the committee’s rulemaking process also comes as the highly contagious delta variant of the virus spreads quickly through the state. 

University officials have repeatedly insisted they do not intend to require students and faculty to get vaccinated — even though several private universities in Wisconsin and public university systems across the country and the Midwest have done so. Yet, officials have spoken out against forcing policies into the rulemaking process so as to make sure campuses have every option available to them in the event of an outbreak once students return to campus in September. 

“Today’s action feels like a political statement; our focus is to ensure we are doing what needs to be done now to safely open for in-person teaching this fall,” UW System spokesman Mark Pitsch told the Wisconsin Examiner in an email. 

The four Democrats on the committee said the move was another example of Republicans being hostile to efforts to protect people from the deadly virus. They also complained that the Republicans rushed to a remote vote without a public hearing on the issue. 

“This is another example of the GOP’s abuse of the administrative review process and their retreat from open government,” the Democrats, Sen. Kelda Roys (D-Madison), Sen. Chris Larson (D-Milwaukee), Rep. Gary Hebl (D-Sun Prairie) and Rep. Lisa Subeck (D-Madison), said in a statement. “Legislators should deliberate and the public should be heard in important matters. Legislation that has the potential to harm our entire state needs public input. UW has the authority and duty to protect its students, faculty, staff and the broader community. UW also has a right to weigh in on efforts to limit that authority.”

Subeck (D-Madison) says she doesn’t believe the UW System has exceeded its authority by trying to prevent disease on its campuses. 

“We should trust the people we’ve hired to run our universities to make those day-to-day decisions,” says Subeck, whose district sits near the UW-Madison campus. “This is unnecessary meddling. This is one more example of Republicans playing politics with the health and lives of our students. We want students to be able to have in-person learning experiences in a way that is safe but enables them to have the fullest experience possible.”

If university officials move forward with COVID-19 protections anyway without submitting them to the rulemaking process, as UW-Madison and UW-Milwaukee have already done, the fight could end up in court. Subeck says she hopes the courts would side with the university — unlike last year when the Wisconsin Supreme Court ruled the state health department couldn’t institute statewide mandates to prevent the spread of the virus. 

“I think it is conceivable that [university officials] take their responsibility to staff and students seriously and they recognize that in order to hold classes they need these measures anyway,” Subeck says. “If they do go forward, I think then it would be up to the Legislature to determine whether to go forward with legal action, given the propensity the Republican leadership has had for wasting money with lawsuits, I would bet they’d go ahead and sue the university.”

“Certainly the university has long had the ability to set health and safety policies and procedures on campus, as relates to COVID that should be no different,” she continues. “It seems absurd on its face that the university cannot set its own policies and procedures for health and safety in their classrooms. This is very specific to the university system. I don’t know what the outcome might be, I would certainly hope it would be different. I think it’s absurd to say that the university can’t set policies around basic health and safety.”

Mel Barnes, an attorney with progressive legal firm Law Forward, says she thinks the outcome would be different from the Republican-led legal fights against the Department of Health Services last year. 

For one, schools often set policies that are more controlling than government policies that regulate the behavior of the public at large.

“Where there is a compelling reason for requiring participation such as in protecting the health of the employee or patients or because of OSHA standards, participation in health surveillance services may be required,” one UW-Madison policy, on the books since 2015, states. 

Barnes also pointed out that the Legislature had no problems with the COVID-19 policies universities had in place all of last year or the requirements that students in dorms be vaccinated against diseases such as meningitis and hepatitis. 

“I’m not sure exactly how they see this having legal effect,” Barnes says. “Obviously the UW System was providing COVID guidance and changing policies all through last year and had every legal basis to do so. They haven’t changed the law as far as what UW System would rely on for that authority.”

Barnes, who called Tuesday’s vote a statement rather than something with more legal force, says that courts around the country have been more sympathetic to university officials’ authority to institute measures against the spread of the virus. 

On Monday, the federal 7th Circuit Court of Appeals, which has jurisdiction over Wisconsin, ruled that Indiana University’s vaccine requirement was legal. 

“People who do not want to be vaccinated may go elsewhere,” Judge Frank Easterbrook wrote in the decision. 

Barnes also says that campus policies are different from last year’s statewide orders and likely to withstand a legal challenge despite the decision of the rules committee. With schools instituting requirements anyway, the Legislature as well as students, staff and faculty would have standing to challenge the policies, Barnes says. 

“I think there are a lot of ways this is different than the broader public health orders that were put in place last year and challenged in court,” Barnes says. “We’re talking about a university system where it’s not necessarily the general public. We’re talking about specific, enclosed physical spaces. The authority to act and the restrictions being considered are different. It’s relevant that other courts have looked at this issue around the country and come down clearly on the side that schools can require vaccines or mask policies or other ways of addressing the spread of COVID.”

“I would not be surprised if today’s vote is not going to change their plans to keep students safe and be proceeding under their existing authority,” she adds.