It is difficult to name a subject concerning our public schools that has been more emotional or ignited greater controversy than graduation ceremonies for the Class of 2020.

The COVID-19 pandemic has transformed what is traditionally a time of celebration and recognition for graduating seniors into a battleground of conflicting and deeply held convictions. School officials have been compelled to struggle with the most serious questions concerning the health and well being of their communities, balancing risks to the health of graduating seniors and their families with many communities’ insistence that anything less than an in person, traditional graduation ceremony is unacceptable and an affront to graduating seniors’ achievements.

An article concerning the legal issues that this topic generates cannot capture the complexity of this issue. The public health issues that the COVID-19 pandemic presents are the province of public health officials, physicians, and scientists. How to best balance our scientific knowledge with compelling social and political values are matters for elected policymakers to resolve. Nevertheless, we can examine the legal foundation for this debate, so that we know where we stand.

Legal Developments Affecting Graduation in 2020

On April 16, Governor Tony Evers directed the Secretary-Designee of the Wisconsin Department of Health Services (“DHS” or “Department”), Andrea Palm (“Secretary” or “Palm”), to extend Wisconsin’s “Safer at Home” Order from April 24 to May 26, 2020.

On April 16, the Secretary did so, issuing Emergency Order #28 (“EO #28” or “Order”). Section 4(a) of the Order stated, in part, that “[p]ublic and private K-12 schools shall remain closed for pupil instruction and extracurricular activities for the remainder of the 2019-2020 school year.”

On April 29, Deputy State Superintendent Michael Thompson (“Thompson”) issued a letter to Wisconsin’s District Administrators. The letter stated, in part:

Under DHS Secretary-designee Andrea Palm’s Order 328, school districts are closed through the end of the school year, which is June 30 under Wisconsin State Statutes. Absent any further orders, this means school facilities are closed through June 30 for instruction or other purposes except for the essential functions laid out in the order. This has given rise to many questions around graduation. DPI developed considerations for personally identifiable information related to virtual graduation ceremonies and is sharing a document developed by Madison and Dane County Public Health describing options around graduation based on current statewide health orders. If you have health questions around graduation options, DPI encourages you to contact your local county health department for guidance (emphasis added).

Thus, Thompson’s letter basically stated that only the “essential governmental functions” identified in Palm’s Order could take place on school grounds through June 30. However, Palm’s Order did not identify graduation ceremonies as an essential governmental function. Accordingly, according to Thompson, graduation ceremonies could not be held on school grounds until after June 30, and then only if they were not prohibited by any other authority or order.

On May 13, the Wisconsin Supreme Court struck down EO #28. However, the Court specifically exempted the portion of the Order that concerned public and private schools, ruling that “[t]his decision does not apply to Section 4. A. of Emergency Order 28.” Consequently, the portion of EO #28 that closed public and private schools for instruction and extracurricular activities remained in place.

Several county and municipal authorities implemented or maintained local health regulations in response to the Supreme Court’s decision. As a result, several local jurisdictions in Wisconsin still were made subject to “safer at home” orders in the wake of the Supreme Court’s decision, but this time those orders were issued by local, rather than state authorities.

On May 15, Deputy State Superintendent Thompson sent another letter to Wisconsin’s District Administrators. The letter began by noting:

In further reviewing the Wisconsin Supreme Court decision, please be aware that public and private schools remain closed for pupil instruction and extracurricular activities through June 30. For any activity that is not pupil instruction or an extracurricular activity, schools should consult with their local health departments as to how to engage in that activity safely, or whether to engage in that activity at all.

However, the letter also added the following:

As you consider activities such as graduation, which is not typically considered an extracurricular activity, please review earlier graduation guidance released by DHS and consult with your local health authority as to how to how to hold a safe alternative graduation activity on or off school grounds (emphasis added).

Thus, Deputy Superintendent Thompson’s letter acknowledged that graduation ceremonies at least could conceivably be held on school grounds before June 30 under the terms of EO #28. This represented a significant change from the earlier letter issued to District Administrators by Deputy Superintendent Thompson. Thompson’s letter also recognized the role that local health departments might play in regulating school districts’ activities.

On May 15, the Wisconsin Attorney General, Josh Kaul, (“AG”) issued an opinion that added yet another development to the legal landscape affecting high school graduations. The Outagamie County Executive, Thomas Nelson, asked the AG for an emergency opinion to address “the effect of the Wisconsin Supreme Court’s decision in Wisconsin Legislature v. Palm, 2020 WI 42, on local powers to combat COVID-19.” Thus, the AG took up the question of whether the Court’s decision “controls local powers.”

The Attorney General concluded that the Court’s decision did not preclude local health authorities from regulating individuals’ behavior in order to address the COVID-19 pandemic. The AG noted that the Supreme Court had only addressed the authority of DHS under statutes that do not “govern the authority of local health officers.” The AG did acknowledge that local officials might not have the authority to impose criminal sanctions for violating any local regulations that they might enact, but stressed that local authorities still had separate statutory powers to “prevent, suppress and control communicable diseases,” and “forbid public gatherings when deemed necessary to control outbreaks or epidemics.” Wis. Stat. § 252.03.

Consequently, the AG concluded that “[a] local order issued under Wis. Stat. § 252.03 that “does not threaten criminal penalties” and that “speaks specifically to the local authority’s statutory power to ‘prevent, suppress, and control communicable diseases’ and ‘forbid public gatherings when deemed necessary to control outbreaks or epidemics’” would not be affected by the Supreme Court’s decision. It should be noted, however, that the AG did not conclude that the local regulations described in his opinion were necessarily lawful or that they would survive legal challenges that might be brought on other grounds; he concluded only that the Supreme Court’s decision did not affect local health regulations that satisfied these requirements.

Graduation 2020: What Now?

The net effect of this legal activity is relatively clear. First, a graduation ceremony on school grounds is not prohibited by state law, because it is now generally agreed that a graduation ceremony is not “instruction” or an “extracurricular activity” under Section 4 (a); the only provision of EO #28 to survive the Supreme Court’s decision.

In addition, however, orders that are issued by county and local authorities to combat the spread of COVID-19 are not affected by the Supreme Court’s decision and, accordingly, remain valid and binding unless and until they are successfully challenged in our courts. In this regard, the AG’s use of the phrase “[a] local order issued under Wis. Stat § 252.03” indicates that — while informal statements or guidance provided by local health authorities certainly may be well informed and worthy of serious consideration — it is formal orders issued by local authorities under their statutory powers that qualify as mandates that a school district might be required to follow.

As a result, a school district can lawfully hold a graduation ceremony on or off school grounds, before or after June 30, 2020, provided that doing so is not prohibited by local health authorities under one or more orders that have been issued under their statutory powers.

That being said, a course of action can be legal, but may not be the wisest approach. School officials will naturally want to provide graduating seniors and their families with a graduation ceremony that they can enjoy and be proud of. At the same time, however, school officials will be understandably concerned about any course of action that might put students, their families, and/or school personnel at risk of contracting or transmitting COVID-19. Consequently, Wisconsin school districts’ decisions concerning graduation ceremonies have involved any number of strategies to balance the need to protect public safety and health with the social and cultural expectations that our communities have for graduation ceremonies.

A framework for considering graduation options should include the following steps. First, a school district should verify whether local authorities have prohibited or have other concerns about the type of ceremony that the school district wants to have. If a plan is prohibited, the school district will have to go back to the drawing board to find an approach that is not.

If there is no order in place prohibiting the ceremony, it may be legal to proceed with a ceremony (even though a local health official might express reservations about the plan), but health officials’ input may still be relevant to determining the best course of action. Local health officials’ feedback also could certainly be considered if a school district were sued for negligence some time after the ceremony was held, because a negligence claim raises the issue of whether the school district exercised “due care” in planning and holding its graduation ceremony. Disregarding local health authorities advice at least could conceivably be used to claim that a school district failed to exercise due care. Consequently, even if the laws imposed by state and local authorities do not prohibit a proposed graduation ceremony, individuals theoretically could still file lawsuits and use local health authorities’ guidance to bolster their claims for civil legal relief.

In addition, school districts should consult their insurance representatives and review their insurance policies to make sure that they have appropriate liability coverage. Most school districts’ policies provide coverage for negligence, but would not generally cover deliberate, reckless behavior. As a result, any plan for a graduation ceremony as well as the implementation of that plan should demonstrate that the school district has exercised due care.

In this regard, a lawful graduation ceremony plan should consider any number of factors, including:

• Does the ceremony comport with DHS guidelines concerning graduation ceremonies? If not, can deviations from those recommendations be justified under a due care analysis?

• Is the planned ceremony consistent with the guidance being given or regulations issued by local health authorities? To this end, have local health officials been contacted to assist in planning, as well as other local officials as warranted (e.g., local law enforcement assistance with “drive through” graduation ceremonies)?

• How will social distancing be maintained? In this regard, how will social distancing be maintained when people are coming to or leaving the ceremony? How will it be maintained during the ceremony?

• Will facemasks be required? In this regard, will the school district issue facemasks to individuals that attend the ceremony?

• What restroom facilities are available and how will individuals’ use of restrooms be regulated to maintain social distancing?

• How long will the ceremony be and can the planned safeguards realistically be observed for that length of time?

• How will diplomas or diploma cases be provided to graduating seniors? How will social distancing and other safeguards be maintained for this aspect of the ceremony?

• Will there be mandatory health checks for those who attend (e.g., will individuals’ temperatures be taken before they enter the facilities or area where the ceremony will take place)?

• Will sanitation aids be provided to individuals that attend the ceremony (e.g., hand sanitizer)?

• What limits on the number of guests should be imposed to preserve safety?

• Should attendees be asked to sign a waiver and release to attend the ceremony?

• What advance communications to students and their families are needed to optimize compliance with safety protocols that are being implemented for the ceremony?

• How much of a ceremony should be held virtually to eliminate safety concerns?

These are, of course, only some of the many questions that should be considered by school officials planning graduation ceremonies. Careful, methodical planning is needed — now more than ever — to provide for graduation ceremonies that can be enjoyed by graduating students and their families, but do so in a way that protects their safety, as well as the safety of the general public.

For questions regarding this article, please contact your Renning, Lewis & Lacy attorney.

Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship.