Utah Gov. Spencer Cox, Salt Lake County argue judge should reject COVID-19 school mask lawsuit

State, county respond to parents suing over ban on school districts creating their own mask mandates.

(Leah Hogsten | The Salt Lake Tribune) "There is no way the Legislature is going to approve a mask mandate at this stage," Gov. Spencer J. Cox said Aug. 31, 2021, during his administration's update on the ongoing pandemic at the Capitol. Cox and Salt Lake County filed their responses in court Sept. 23, 2021, to a lawsuit over masks in schools.

Defending the state’s ban on school districts creating their own mask mandates, lawyers for Gov. Spencer Cox and Salt Lake County argue Utah lawmakers had the power to set that policy — and point out that students who feel unsafe can still learn remotely.

The governor and county are responding to an August lawsuit filed by a group of parents over the ban on school districts. A new law allows local health officials to decide whether to require masks in schools, and empowers county councils to overturn mandates they attempt.

In memorandums filed Thursday in 3rd District Court, Cox and the county asked a judge to deny the parents’ request to immediately strike down the ban.

“This case is not about the best masking policy for Utah schools,” Cox’s filing states. “Rather, this case is about who is empowered, in our constitutional system, to determine mask policy for schools during a pandemic, and whether those who are authorized to set that policy followed Utah’s Constitution and statutes.”

The lawsuit was filed by 12 parents representing 15 students across the school districts of Salt Lake County. The students either have a health condition that makes them more susceptible to severe infection from COVID-19 or a learning disability that makes staying home to learn difficult. Some of the children have immunodeficiencies and acute asthma, and almost all of them are younger than 12 and not yet eligible to get the vaccine.

Their parents — many of whom are members of the grassroots Concerned Coalition, which is fighting for universal face coverings in the classroom — argue that the law is unconstitutional, discriminatory and leaves students at risk.

In a statement Friday, the group said “while we are disappointed” in the responses filed by Cox and Salt Lake County, “we are not surprised.”

Thousands of school-aged children “have already tested positive for COVID-19 since school started one month ago. The number of children who have had COVID-19 is likely much higher than that,” according to the statement. “This is unacceptable and we won’t allow it to be ignored. Concerned Coalition is committed to fighting for our children to attend school safely.”

Where the law and mask requirements currently stand

Earlier this year, the Republican-dominated Utah Legislature passed HB1007, which explicitly prohibited school districts from creating any requirements for masks for the 2021-2022 academic year.

Instead, under the accompanying SB195, any face covering mandates in schools must come as a recommendation from a county health department, with the local county governing body having the authority to repeal them.

The only district that has successfully gone through the approved process is Grand County School District in southeastern Utah. Summit County has said it will require masks for kids in elementary classrooms if infection rates get above 2%. That was recently extended to middle schools and junior high campuses in the county, starting Monday.

The Salt Lake County Health Department had previously tried to issue a mask requirement for schools countywide. But that order, issued by its health director, Dr. Angela Dunn, was voted down by the County Council on party lines, with Republicans against it.

In the lawsuit, the parents asked for the County Council’s vote to be vacated and for Dr. Dunn’s mask order to stand.

Meanwhile, the Salt Lake City Council voted earlier this month to extend Mayor Erin Mendenhall’s mask mandate for K-12 schools in the capital city.

It is unclear if Mendenhall’s emergency order will be allowed to stand; some lawmakers have already discussed challenging her. The Legislature also gave itself the authority to veto any county’s mask mandate for schools.

What Cox and Salt Lake County say

In their responses, both Cox and Salt Lake County referenced a previous lawsuit filed by Salt Lake City parents fighting to reopen schools.

In January, a district judge ruled that Utah’s children are not entitled under the state constitution to an in-person education, leaving how and where learning happens — including entirely online during the pandemic — up to each local school district.

“The fact that some may voluntarily choose to not attend school in-person because of their unique circumstances does not mean the schools are closed to them,” according to Cox’s response.

Students can still choose to wear masks if they want to, the governor’s response states, and schools can still implement social distancing, extra sanitation practices and other ways to prevent the spread of COVID-19.

“The input received by our office indicates that many parents of our school children do not want statewide health mandates and want the decisions made at the local level,” Utah Superintendent Sydnee Dickson said in a document filed in the case.

Dickson referred to guidance for schools around the state, which advises that staff working with a student who has a disability or is at risk of severe illness due to COVID-19 may determine that the student and all the other students and staff in the classroom “must wear face coverings” so that the student can “receive a free appropriate public education.”

“In order to ensure that no individual is required to wear a face covering in order to participate in in-person instruction, any student who also attends school in the at-risk student’s classroom who declines to wear a mask shall be allowed to transfer to a different classroom,” the guidance states.

Even if schools were allowed to create their own mask requirements it is unlikely that they would, according to Salt Lake County’s filing pointing to an August meeting between Cox and local health officials and superintendents across the state. It said the attendees rejected the governor’s offer to issue an executive order allowing local education officials to require masks for students and staff in schools.

Mask requirements “are a deeply divisive issue,” and the state Legislature allowed local health departments to “consider scientific evidence and mask proposals, leaving the final decision” to county councils “to reflect the will of the people,” according to the responses from the state and county.

When creating public policy during the pandemic, the Legislature had to balance “competing concerns of public health, individual liberty and to the optimal way to provide education in these trying times,” according to Cox’s response.

The court should not determine “which policies will be most effective in preventing COVID-19 infection without creating unintended harmful outcomes,” Cox’s response states, “such as impairment of education, mental health issues, erosion of personal liberty, or decreased attendance caused by the requested mask mandate.”

The judge should consider, though, when vaccines may be available for children when making a decision, according to the county’s response.

Salt Lake County said it “does not mean to minimize the challenges” faced by families that filed the lawsuit “due to COVID-19.” Still, the county and Cox asked the judge to deny their requests.

Tribune reporter Courtney Tanner contributed to this report.