Senator Asks Legislative Leaders to Sue UW System, Seeking Legislative Oversight of COVID Rules

The Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) held an executive session on August 3 to vote on the University of Wisconsin System’s COVID-19 policies. On a 6-4, party-line vote, the committee ordered the UW System to submit its COVID-19 protocols as an emergency rule within 30 days, arguing that measures such as regular testing or masking requirements must be promulgated as administrative rules, subject to JCRAR’s review and approval. Under the committee’s order, the UW System had until September 2 (the first day of classes at eight of the system’s 13 schools) to submit an emergency rule.

On August 24, on a call with media outlets, UW System Interim President Tommy Thompson said the UW System would not comply with the committee’s order. In an editorial piece published the same day, Thompson argued that the UW System’s COVID-19 policies are not subject to legislative review or approval, writing: “The UW System is not required to seek political approval for every internal management decision, nor should it. … [The UW Board of Regents] establishes policies for the UW System and engages in statutory rulemaking when necessary. We control access to our buildings and facilities. … The effort to block the UW System’s authority is both wrong on the law and wrong as a matter of public policy.”

Representative Adam Neylon (R-Pewaukee), a co-chair of JCRAR, replied in a statement saying he was “disappointed” by Thompson’s comments and that “the UW’s policies, which the University intends to enforce and which meet the statutory definition of rules, must go through the emergency rule-making process.” Senator Steve Nass (R-Whitewater) issued a statement indicating he would ask legislative leaders to sue the UW System if it did not meet JCRAR’s September 2 deadline.

Typically, the Joint Committee on Legislative Organization (JCLO) authorizes lawsuits on behalf of the Legislature, although each house also has the power to sue on its own. Assembly Majority Leader Jim Steineke (R-Kaukauna), who serves on JCLO, stated on social media that “a lawsuit from the legislature would only add more confusion during an already stressful time” for the UW System. Senator Rob Cowles (R-Green Bay) also indicated publicly that he does not support legal action against the UW System by the Legislature.

On September 7, Sen. Nass sent a letter to Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Devin LeMahieu (R-Oostburg) requesting that legislative leadership commence legal action against the UW System to force its compliance with JCRAR’s order. Sen. Nass’ letter cites a Wisconsin Legislative Council analysis arguing that while UW System has some authority over its own employment policies, it must promulgate an administrative rule to implement any COVID-19 policies for students and campus visitors.

While UW System schools currently require that masks be worn indoors (regardless of vaccination status) and require weekly COVID-19 testing for unvaccinated employees and students, Thompson has said that the system will not mandate vaccinations for its staff or students. The system is running a vaccine incentive program offering students outside UW-Madison a chance at winning one of seventy $7,000 scholarships if their university reaches a 70 percent vaccination threshold by October 15. Thompson also believes the system will reach his goal of offering 75 percent of its classes in-person during the fall semester, which is now underway at all UW System schools.

Thompson has said he plans to serve as interim president for about six more months while the UW System Board of Regents searches for a permanent replacement. Meanwhile, Thompson says he will focus on guiding the system through the challenges of COVID-19, reforming the system’s financial and human resources systems, and advocating for building projects on system campuses.