The Montana Department of Health and Human Services, along with Governor Greg Gianforte, announced a new “emergency rule” this afternoon concerning mask mandates in schools. This has been a hot button issue for concerned parents who have been protesting and attending school board meetings to demand their rights to make health decisions for the children. Unfortunately, the wording of the “new rule” appears to make it all but useless as multiple school boards have already dismissed the notion of allowing parental consent as well as the Associated Press reporting on the rule as being an “urging” and an “encouragement.”

The confusion arises with the word “should.” While the word “should” can be used to express obligation, it often falls short of this interpretation when used in a legal context. If the Governor and the DPHHS were hoping to create a new rule, they should have used the word “shall,” as many commenters on the Governor’s Facebook post announcing the rule have pointed out. This wording appears to give school boards a way out, and in practice it doesn’t create much of a rule at all, merely requiring the school boards to show that they’ve “considered” parental concerns.

Multiple school districts, including Billings and Helena have already issued statements regarding the new rule and have doubled down on their decisions to mandate masks for students. They believe they have done their due diligence in providing a way for children to opt-out of mask mandates by allowing them to stay home and participate in “remote learning.”

Many commenters on social media are seeing this as a political move by the Governor, although it appears to be upsetting those on both ends of the political spectrum.

One commenter stated:

“The use of SHOULD is a brilliant political maneuver, as it has zero enforcement impact and is therefore useless, except to allow your supporters to believe you actually did something. The reality is that instead of leading the state through strife, you’ve created more confusion among your constituents and further stressed local situations.”

Others have lambasted Governor Gianforte for what they see as his ostensible opposition to mask mandates in schools.

The interpretation of this supposed new rule will continue to be debated in the coming days and we plan on reaching out to the drafters of the rule for comment on the language tomorrow. As it stands now it appears up to the school boards to decide which guidelines or “rules” they choose to follow.