Into Their Own Hands

Iowa’s public universities say they can’t require face coverings due to a state Board of Regents policy banning mask mandates. Faculty groups across the state have argued against that policy, thus far in vain, both by appealing to the board itself and by asking campus administrations to assert local control on the matter.

Now professors and graduate instructors at the University of Iowa are trying a different tactic: invoking state law, which they say entitles them to require masks in their own classrooms if they so choose.

The particular state law in question is Chapter 20 of the Iowa Code, Section 8, Subsection 3, which states that public employees have the right to engage in concerted activities “for the purpose of collective bargaining or other mutual aid or protection,” insofar as any such activity is not prohibited by law. Concerted activities are often understood to be about unionization, but they’re more broadly defined as co-workers acting together to improve the workplace.

Loren Glass, president of the campus advocacy chapter of the American Association of University Professors and chair of English at the University of Iowa, and Hadley Galbraith, president of the graduate student union and a Ph.D. candidate in French at the university, recently wrote to Barbara Wilson, president of the institution, to notify her of their position.

“We have consulted a lawyer, who advises us that faculty, graduate instructors, and staff are public employees who have rights under Chapter 20, specifically the right to engage in concerted activities for mutual aid or protection in their primary workspaces, the classroom and personal office, insofar as the activities do not violate some other law of Iowa,” Glass and Galbraith wrote. “Accordingly, we believe that faculty, graduate instructors, and staff have the right to require masking in their classrooms and personal offices for the purpose of mitigating the spread of COVID-19 and protecting our colleagues and coworkers.”

Glass and Galbraith told Wilson that they’d be informing members of their right, and that the university would be legally at risk in not recognizing it. They also asked the university to consult its legal counsel and explain why it was effectively “violating” public employee rights under Chapter 20.

The National Labor Relations Board lists these examples of concerted activities: talking with one or more co-workers about wages and benefits or other working conditions; circulating a petition asking for better hours; participating in a concerted refusal to work in unsafe conditions; and joining with co-workers to talk directly to an employer, to a government agency or to the media about problems in the workplace.

The employer “cannot discharge, discipline, or threaten you for, or coercively question you about, this ‘protected concerted’ activity,” according to the NLRB, which oversees labor issues at private institutions. “However, you can lose protection by saying things about your employer that are egregiously offensive or knowingly and maliciously false, or by publicly disparaging your employer’s products or services without relating your complaints to any labor controversy.”

Nate Willems, an Iowa-based employment lawyer whom the AAUP chapter consulted about the letter, said, “In Iowa, when somebody says ‘Chapter 20,’ you think they’re talking about public sector unions, which is often true. But these rights are not exclusive to unionized employees.”

Comparing Chapter 20 of the Iowa code to Section 7 of the National Labor Relations Act, which affords workers the right to organize and otherwise engage in concerted activities, Willems said that instructors have the right under Iowa state law to “exercise their traditional authority over the classroom.”

Chapter 20, like any other law, supersedes a regents’ policy, he said -- even one rooted in Iowa’s controversial law against mask mandates in K-12 schools.

Separately, the graduate student union filed a workplace safety complaint against the university with the Occupational Safety and Health Administration.

Galbraith said that while the university has moved many classes with 150 or more students online, graduate student instructors are still responsible for meeting with students face-to-face in discussion sections. She said she didn’t know of any graduate instructors who have contracted COVID-19 from teaching this term, but that she was aware of faculty members who have reported exposure from teaching.

Regarding Chapter 20 and requiring masks, Galbraith said the union is “hopeful that we can take some collective action in the near future.”

Glass said that while many faculty members would prefer vaccine and mask mandates, the AAUP is for now asking the university to recognize individual faculty and staff members’ right to require masks in their own classrooms and offices while meeting with students.

“This is a matter of faculty rights and employee rights, and not just a question for folks with disabilities,” Glass said, referring to the disability-based accommodations many employees have sought during COVID-19. “This is a violation of all of our rights as employees. This is an argument, whether legal or moral, that teachers have a right to be safe in their classrooms -- to be able to dictate the terms, within legal bounds, of behavior and comportment in their classrooms."

Wilson responded to Glass and Galbraith via email late Monday, saying that she’d consulted with the board about their letter.

“I have appreciated our conversations about the COVID pandemic and your continued advocacy,” Wilson wrote. She shared a board statement saying that the body "respects the rights of public employees to engage in concerted activity as protected by Iowa Code Chapter 20, which includes the ability of covered employees to work together to seek changes in employment policies." 

Chapter 20 "does not, however, give employees a right to unilaterally alter or violate existing employer policies," the board said. "In accordance with Board of Regents guidance issued on May 20, 2021, masks may not be required on regent campuses except in specific situations such as public transportation, research, and health care settings. All employees are expected to comply with this guidance.”

Glass said that he still planned to file a prohibited practice complaint with Iowa’s Public Employment Relations Board, as "the existing policy is precisely what we’re objecting to."

Teresa Marshall, president of the university’s Faculty Senate and Michael W. Finkelstein Centennial Professor of Teaching in preventive and community dentistry, said that senate officers support efforts to mitigate effects of COVID, "including supporting mask and vaccine mandates.” Regarding her colleagues' letter on Chapter 20, Marshall said she and other senate officers “support their efforts to advocate on behalf of their peers.”

Natalie Fixmer-Oraiz, F. Wendell Miller Associate Professor of communication studies, said she "fully supports" the invocation of Iowa law to allow instructors to mandate masks in their classrooms. 

"We remain in the midst of a global health crisis and the science is clear -- universal masking works, voluntary masking doesn’t," she said. Faculty and staff members and graduate students "are entitled to a safe workplace, and our students deserve a safe learning environment. As educators, we can only nurture students' intellectual, professional and personal growth if we embrace evidence-based research and public health guidelines. Nothing less will do."

At the University of Georgia, faculty members aren’t relying on state law but rather each other in requiring masks in their classrooms. More than 50 professors have now pledged to require masks in their classrooms “until local transmission rates improve,” despite a University System of Georgia policy against mask mandates and the threat of discipline -- up to termination -- for those who don’t follow the rules.

All “reputable research shows that vaccination, social distancing and mask requirements can reduce COVID-19 infections, hospitalizations, and deaths,” the faculty petition says. “Due to the extreme inaction and inappropriate requirements placed on state-run universities by the Governor-appointed Board of Trustees and the Chancellor of the University System of Georgia (USG), we have chosen to take what action we can to protect the students and staff we directly teach or supervise, even if these actions are in defiance of current USG rules.”

Acting system chancellor Teresa MacCartney responded to the faculty petition last week, saying in a letter, “The good news on University of Georgia’s campus as well as on USG campuses throughout our state is that COVID-19 cases are declining. Specifically at UGA this week, there were 77 new cases reported, which is a sharp decline over previous weeks.” Surveillance testing positivity rates are also down significantly, MacCartney said, so “your intent to disregard USG policy and require masks ‘until local transmission rates improve’ is not necessary.”

Georgia has “no state mask mandate,” MacCartney said. “As a system, we strongly encourage mask usage in campus facilities and urge those who want to wear masks to do so.” Vaccination is also strongly encouraged, she added, as it’s the “single most effective way to keep from spreading and getting the virus.”

Peter Lindsay, a professor of political science and philosophy at Georgia State University, said his students have been masking in class but that he signed the letter in solidarity with his colleagues. He also said that mask mandate bans driven by Republican lawmakers in Georgia and other states contradict traditional Republican values about local control.

“The Republican Party long stood for local educational autonomy -- ‘Don’t have federal government, don’t have state government, intruding in your curriculum,’” he said. “And here [in Georgia] we have a Republican governor” -- Brian Kemp -- “who says, ‘You have to do what we tell you to do.’ There is no university autonomy or no college autonomy.”

These aren’t the first actions faculty members have taken to try to force mask mandates. Earlier this year, the University of Northern Iowa’s faculty union filed an OSHA complaint against that university over its stance on masking. The state OSHA office decided not to open an investigation, however, saying that the university had the right to establish policies for workers to follow. In so doing, the office cited Iowa’s state law against mask mandates in schools. A federal judge has since issued a restraining order against that law, and the order was extended Monday by two weeks. Some local schools are already requiring masks as a result.

UNI’s faculty union is still considering filing a lawsuit to enforce its safety requests, including mask mandates for the unvaccinated while local transmission rates are still elevated.