Gov. Gretchen Whitmer
Provision of preK–12 education for the 2020–2021 school year
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended (EMA), MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended (EPGA), MCL 10.31 et seq.
Since then, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the EPA, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the EMA.
Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v. Whitmer. On May 21, 2020, the Court of Claims ruled that Executive Order 2020-67 is a valid exercise of authority under the Emergency Powers of the Governor Act but that Executive Order 2020-68 is not a valid exercise of authority under the Emergency Management Act. Both of those rulings are being challenged on appeal.
On June 18, 2020, I issued Executive Order 2020-127, again finding that the COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan. That order constituted a state of emergency declaration under the Emergency Powers of the Governor Act of 1945. And, to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature had declined to grant an extension request, that order also constituted a state of emergency and state of disaster declaration under that act.
The Emergency Powers of the Governor Act provides a sufficient legal basis for issuing this executive order. In relevant part, it provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
Nevertheless, subject to the ongoing litigation and the possibility that current rulings may be overturned or otherwise altered on appeal, I also invoke the Emergency Management Act as a basis for executive action to combat the spread of COVID-19 and mitigate the effects of this emergency on the people of Michigan, with the intent to preserve the rights and protections provided by the EMA. The EMA vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)–(2). This executive order falls within the scope of those powers and duties, and to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature has not granted an extension request, they too provide a sufficient legal basis for this order.
To suppress the spread of COVID-19 and prevent the state’s health care system from becoming overwhelmed, it was reasonable and necessary on March 13, 2020 to issue Executive Order 2020-5, which temporarily closed schools. That order was followed by Executive Order 2020-35 on April 2, 2020, and then Executive Order 2020-65 on April 30, 2020, closing in-person instruction for the remainder of the school year and providing for continuity of learning plans. Although the virus has remained aggressive and persistent, those orders were a key piece of the infection-suppression strategy that curtailed the spread of the COVID-19 in Michigan. Where Michigan was once among the states most heavily hit, our per-capita case rate is now roughly equivalent to the national average.
This executive order provides a structure to support all schools in Michigan as they plan for a return of preK-12 education in the fall. Under the order, school districts must adopt a COVID-19 Preparedness and Response Plan laying out how they will cope with the disease across the various phases of the Michigan Safe Start Plan. In turn, the accompanying Michigan Return to School Roadmap offers a guide to the types of safety protocols appropriate during each phase. There’s no one-size-fits-all solution: what works in Lansing may not work in Sault Sainte Marie. Districts will retain flexibility to tailor their instruction to their particular needs and to the disease conditions present in their regions.
In the coming weeks and months, I will be working closely with the legislature to develop a comprehensive return-to-school plan that meets the needs of Michigan students while protecting students, families, and communities from the risk of infection. In the meantime, this executive order and the Return to School Roadmap will provide the scaffolding for districts to develop their plans for getting our kids back in the classroom.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
Given under my hand and the Great Seal of the State of Michigan.