Articles / 05.12.2020

You Can Leave Your Mask On: Respecting New Boundaries During COVID-19

By Susan Stone, Kristina Supler & Melissa Yasinow

COVID-19 collegeWhile Joe Coker crooned, “[y]ou can leave your hat on,” during the titillating movie “9 ½ Weeks,” no one could have predicted in 1986 that in 2020, lovers might be singing, “you can leave your mask on.” While we make this comment tongue in cheek, there is a note of seriousness. Will we ever be 100 percent comfortable with anyone breathing too close to us? Or will we continue to live somewhat hermetic lives just to feel safe from disease? Human contact is essential for connection and mental wellness. But, as attorneys representing students, we wonder how these new social norms will play out in college.

It’s not easy for college students to build friendships and romantic relationships even during the best of times. COVID-19, however, has put those challenges into overdrive. Previously, in our “Don’t Kiss With COVID-19!” blog, we discussed the Title IX implications for students who have sex knowing they have coronavirus. Now, however, we know that people, particularly college students, can unknowingly carry the virus without symptoms and can infect others just by physical proximity. We must now examine potential misconduct issues in non-sexual, regular student conduct contexts.

Although it’s pretty straightforward not to kiss someone if you know you have COVID-19, it’s far less clear how to handle the more subtle social mores of social distancing. At a minimum, for those students returning to college or for freshmen new to campus life, colleges will be forced to adopt as rules many of the precautions we already take, such wearing masks in public, practicing minimum physical distancing (i.e. size and space limits for enclosed places) and enacting strict handwashing standards. Each of these COVID-19 protections, however, comes fraught with peril for well-intentioned students during this unprecedented time.

While a cautious student may wear a mask in class or in public, it is unclear if they must wear them while walking around their own residence halls, entering a friend’s dorm or just hanging out in their own room with a roommate. In social situations, the simple act of failing to wear a mask without the consent of all nearby parties could be considered student misconduct. Also, the act of hugging a long-lost friend —which is hardly unreasonable after being cooped up at home for months—is complicated by new issues of consent. Otherwise unremarkable and spontaneous acts of friendship can be misconstrued as dangerous if a person does not want anyone within six feet of them (regardless of the amount of PPE worn), or consents to being touched under only certain conditions, such as after both parties have washed their hands. Will students be frightened if a friend enters a room without a mask and coughs or sneezes? Worse, will an unmasked sneeze trigger other students suffering from anxiety over whether COVID-19 will be contracted after the cough and sneeze? It’s not an irrational thought these days.

To further complicate matters, universities often have vague policies – and certainly have no experience applying them to a pandemic. One public university in Ohio, for example, forbids students from engaging in any act that endangers the safety, physical or mental health or life of any person, or creates a reasonable fear of it. We are concerned that universities will be forced to rush new policies without knowing how those policies will be applied or understood in real life.

In the end, we want students to resume a normal life. Along with every other facet of our world, what that looks like is so uncertain. All we can do is be safe as possible. Not to be trite, but perhaps we will all just have to leave our mask on… even in the most intimate of situations.

If you have concerns about the nuances of student boundaries, consent and COVID-19, we are here to help. For more information, please contact Student & Athlete Defense and Title IX attorney Susan Stone (scs@kjk.com or 216.736.7220) or Kristina Supler (kws@kjk.com or 216.736.7217).

 

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