This story has been updated. Here’s what’s new:
Parents who didn’t want their children to have to undergo rapid antigen testing for COVID-19 in order to learn in person sued the Park City School District in March over its “Test to Stay” policy, which was requiring testing every two weeks to stay in class.
On Thursday, Holly and Mark McClure — whose two children attend Treasure Mountain Junior High School and Park City High School — agreed to drop the federal lawsuit, in light of a bill Gov. Spencer Cox recently signed into law and an updated order from the Utah Department of Health, court records show.
SB107 “makes clear that whether a student chooses to submit to a test for COVID-19 is not among the identified criteria for evaluating eligibility to in-person learning and clearly allows a student who refuses to test for COVID-19 to participate in in-person learning,” their motion states.
A federal judge dismissed the case last week with prejudice, meaning it cannot be filed again.
Here is the original story:
Parents who don’t want their children to have to undergo rapid antigen testing for COVID-19 in order to learn in person are suing the Park City School District over its “Test to Stay” policy, which was requiring testing every two weeks to stay in class.
The lawsuit, which was filed Wednesday in Utah’s U.S. District Court, claims that an order from the Utah Department of Health “permitting schools to implement mandatory COVID-19 testing as a condition of in-person learning is an unconstitutional invasion of rights.”
Holly and Mark McClure, whose two children attend Treasure Mountain Junior High School and Park City High School, filed the case against the school district and its school board members, Superintendent Jill Gildea and State Superintendent Sydnee Dickson, as well as leaders of the Summit County and state health departments.
Gildea declined to comment Thursday, saying her office had not had time to review the complaint yet. Erin Grady, president of the district school board, said in an email Thursday, “We learned about this late yesterday and are going to be taking some time to review the complaint.”
Spokespeople for Summit County and state health departments also declined to comment about the pending litigation. Tom Hudachko, director of communications for the Utah Department of Health, added, “Our goal has been to ensure Utah school children have access to safe, healthy, in-person learning opportunities.”
Generally, the “Test to Stay” protocol is triggered when an outbreak at a school hits a 15-case threshold; at that point, school officials decide whether to move classes online for 10 days, or instead offer testing to students want to remain in the classroom, according to a document explaining the policy on the Park City School District’s website.
Under that option, students “who choose not to get tested should move to virtual or remote learning for at least 10 days,” the document states. Those who opt into being tested and test positive also must isolate at home.
Those who test negative may continue in-person learning, if they have not had close contact with someone who has COVID-19 and are not showing symptoms of the virus.
According to the lawsuit, the two schools that the McClure’s children attend shifted students online for 10 days after a mid-January outbreak.
But then, when in-person learning resumed, the schools began requiring that students undergo repeated testing every 14 days, the suit said.
A Jan. 15 letter from Treasure Mountain Junior High principal Caleb Fine, included in the lawsuit, explained that his school and Park City High School were adopting the more frequent “Test to Stay” protocol that had been used for athletics and extracurricular activities.
That regular testing would continue as long as the school had “adequate testing supplies and community transmission rates are high,” he said.
The most recent round of testing for the entire high school student body occurred on March 5, the lawsuit said. Parents were notified this week that the regular testing is now on hold, due to a “significant drop in cases on campus and a reduced positivity rate in Summit County,” the suit said.
When the McClure’s children did not attend their scheduled COVID-19 testing at school, once in-person learning resumed after the outbreaks in January, both of them were “isolated” from other students, according to the lawsuit.
The parents told the schools that they did not consent to the testing — nor to continued remote learning — which the lawsuit says “poses potential irreparable harm to children.”
The parents “strongly believe that in-person schooling is the best option for their children and have long pushed for in-person schooling since the COVID-19-related shutdowns started,” according to the complaint.
At the same time, they “stringently objected to the compelled testing of their children” in order to return to school and argued it was a parent’s right “to make medical decisions for their children.”
In the complaint, the McClures also questioned the rapid testing methods that were used, which they said could create false positives, and the thresholds in place to determine when students will be tested. They also worried about privacy with the testing and how information would be stored.
The McClures question why students who refuse testing have to learn virtually, while “teachers and staff are expected to continue their normal job duties in-person if they choose not to get tested or test negative,” according to the document.
Their lawsuit states that “COVID-19 poses a low risk to children,” who wear masks and follow other health safety guidelines to prevent the spread of the virus.
A new study published Wednesday that included Utah kids found that teens and young adults actually have a higher chance of getting infected with the coronavirus than older adults, contradicting past research. And earlier this week, Utah saw its first death of a child due to COVID-19.
The McClures argue that the Park City schools’ “Test to Stay” policy violates the right to due process and equal protection clause under the Fourteenth Amendment, as their children are “denied in-person instruction” due to their objection to “invasive, experimental testing.” The lawsuit also claims the program goes against the right to privacy under the Fourth Amendment, as well as sections of the state constitution outlining parents’ rights with their children’s education.
Some Utah schools lost 40% of their in-person days in the fall to COVID-19 closures, according to a state report released last month. Auditors recommended embracing the traditional “Test to Stay” program — moving online for 10 days, or offering testing for students who want to remain in class — to help address that issue.
During the recent session, the state Legislature passed a bill that pushes for a return to in-person instruction at Utah schools. According to SB107, the traditional “Test to Stay” program would be triggered once 2% of the school’s students at an institution with more than 1,500 students test positive, or once 30 do at a school with fewer than 1,500 students.
The current outbreak marker is 1% of a school’s population, which many schools have hit quickly and multiple times.
The Legislature also passed a so-called “pandemic endgame” bill, which lifts the statewide mask mandate on April 10. Masks will still be required in schools and for large gatherings, though.
Tribune reporter Sara Tabin contributed to this report.
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