Utah students and staff who don’t wear masks in schools can be charged with a misdemeanor

Students and staff in Utah who don’t wear a mask in K-12 schools in accordance with the governor’s mandate can be charged with a misdemeanor.

The potential criminal penalty for violating the order was confirmed by Gov. Gary Herbert’s office late Wednesday. Spokeswoman Anna Lehnardt said it’s up to leaders of schools and charters to decide whether they want to seek charges as they respond to the continuing coronavirus pandemic.

“It’s enforced on a district and superintendent level,” she added. “But we’re not thinking, ‘Let’s slap a bunch of kids with misdemeanors.‘ ”

Herbert had issued the mask mandate for public schools in July. As classrooms have begun reopening across the state this week, though, it’s become a new source of frustration for many parents — with a focus on the enforcement.

During a legislative meeting Wednesday, one mother questioned why there should be potential misdemeanor charges associated with something she sees as a personal choice.

“Our children should not have to suffer criminal consequences for getting an education,” said Angie Martin, who has a child attending high school in Cache County.

Lehnardt said she expects charges will rarely be pursued. And schools have the choice, too, to push students who won’t wear a mask to do online work. There are also exceptions to the order for those with medical conditions and during breakfast or lunch times.

If a criminal prosecution is sought, though, a school employee or a student — including those in kindergarten — could face a class B misdemeanor. That is the standard for any violation of a public health order, Lehnardt added. And it can be punished with a sentence of up to six months in jail and a fine of up to $1,000. That is the same level of charge, for example, as a first offense for driving drunk.

“We want our teachers to be safe,” Lehnardt said, describing the reasoning behind the penalty.

Lawmakers discussed Wednesday whether the K-12 mask mandate was among the emergency executive orders issued by Herbert during the pandemic that are set to expire this week. But it is not, and it will remain in effect.

Legislative leaders won’t be renewing the governor’s other orders — including a mask requirement in state buildings — and it would be up to Herbert if he wants to reissue those. The school face-covering mandate, though, “is not in danger,” Lehnardt said, because it was issued in conjunction with the Utah Department of Health.

That hasn’t stopped parents from pushing back against the mandate, though, and trying to get it repealed.

Danielle Cottam, for instance, has taken her five children out of school so they don’t have to abide by the order. In the middle of what was supposed to be a school day Wednesday, they instead played with a crowd of other mask-free kids at a splash pad in St. George.

“I should have the kids in school,” Cottam acknowledged. “But I chose to keep them home because of the mask crap. … It’s totally unconstitutional. It’s not even giving us a choice. I think I should have a right to choose whether or not my kids have to wear it.”

The mother is part of a growing group of families that are gaining volume as they push back against Herbert’s order — with a large faction in southern Utah.

Questioning the mandate

It’s also possible the mandate sees a challenge in court over the governor’s authority to issue it.

In a news release Wednesday, Uintah School District in eastern Utah said it wanted to correct “misinformation circulating in our community,” and emphasized that students will be required to wear masks unless the mandate is overturned.

“Until the Utah Legislature passes a law stating that the governor does not have the authority to issue the mask order or a court of competent jurisdiction rules that the governor’s order is illegal, the current mask order is the law in our state. The Uintah School District will abide by the law.”

The district said it will work to make “reasonable accommodations for any student,” especially those receiving special education services or anyone with disabilities. But for those who simply don’t want to wear a mask, the district said, “it may become necessary to transfer a student to Uintah Online.” Their school work would then be done all virtually.

The mask mandate came under fire by two lawmakers during an Interim Education Committee meeting Wednesday. Rep. Mark Strong, R-Bluffdale, asked whether the state was “making a big deal out of something that’s not quite a big deal” with the school restrictions.

Dr. Angela Dunn, the state’s epidemiologist, responded: “For every comment I get that we’re being too restrictive, I get another that tells me I’m killing children by opening schools.” Masks, she added, are the best option for now without a vaccine, though the state is also working to get rapid saliva tests once those are federally approved.

Rep. Lowry Snow, R-Santa Clara, challenged the requirement, too. He said he visited two schools last week in Washington County School District, which sits in the southwestern corner of Utah. The district was the first in the state to open.

On the first day, teachers were wearing clear plastic face shields instead of masks. Lowry applauded that, saying: “With young children, I would think being able to see a teachers’ facial expressions during teaching would be important.”

In politically conservative Washington County, which national media outlets have held up repeatedly as an example of lax community attitudes toward the virus, the mask order had already been a tough sell. The shields felt like a good compromise to some.

"We had the best opening we've had in years," said district spokesman Steve Dunham. "Really, it was smoother than a normal year."

(Chris Caldwell | The Spectrum and Daily News) Faculty members at Snow Canyon High School distribute masks to students on the first day of class in Washington County School District Thursday, Aug. 13, 2020.

Then, one day after schools opened and pictures circulated of many wearing the shields, Herbert modified his school mask order to forbid plastic face shields as an alternative to a fitted mask. They have not been found to be as effective at preventing spread of the coronavirus, the governor said.

The next morning, district officials sent an email to parents alerting them that, regardless, shields alone would still be acceptable. Several parents were jubilant, congratulating the district for standing up to the governor.

Then, in an emergency meeting on Monday night, the school board voted to follow Herbert’s modified order, requiring masks under plastic shields.

"We [needed] some extra time to put this into place because we have had such a smooth opening, and we didn't want to upset the apple cart," Dunham said.

Now some parents say the fragile peace over masks has been disrupted — and families may remove their kids or simply refuse to mask up.

"I know that there are a lot of parents that allowed their kids to go to school because they could use shields [instead of masks]," said Candice Nay, a parent of three students at Pine View Middle and High Schools in St. George.

Cottam agreed that the loss of plastic shields as an alternative may be the last straw for families who already were unhappy about the mask order. ”I just think if things keep going this way, there’s going to be an uprising, and it’s going to get ugly,” Cottam said.

A rally against Utah’s school mask order is set for Friday morning outside the Washington County School District office.

What parents fear about masks

Cottam’s children, who range in school age from kindergarten to 7th grade, had planned to attend school even after Herbert announced the mask order. The mother got a medical note from a St. George chiropractor that said her kids should not wear masks and that it was “inappropriate” to include further detail.

Initially, school officials told Cottam that was enough for the kids to attend barefaced. But then the district sent her a form requiring a physician statement detailing the students' medical conditions that are incompatible with mask-wearing. A "District Review Committee" would screen the exemption requests, the form states.

“I wasn’t even going to deal with it,” she said. “So I chose to keep them home. It’s my kindergartner’s first year. I wasn’t going to put him in a mask.”

Cottam’s daughter, London, said at first she was disappointed not to join her friends and cousin in sixth grade. But she said the one time she has worn a mask — to go back-to-school shopping — she left the store feeling nauseated.

"I kind of wanted to go to school," said London, 11. "But I didn't want to wear a mask because I will vomit or get a bad headache from it."

The American Lung Association says face masks don’t cause oxygen deprivation and carbon dioxide levels are generally unaffected, though anyone with an underlying lung disease should consult with a doctor. Dunn added Wednesday that masks are even safe for kids with asthma and allergies. “There’s really no medical reason not to encourage these individuals to be wearing masks,” the epidemiologist said, especially because they protect others more than the person using the mask.

The state health department is currently working on a document to provide answers to frequently asked questions, including on the safety of masks. An early draft shared with The Salt Lake Tribune also included information on the misdemeanor charges.

“There’s a lot of misperceptions out there that we’re trying to overcome,” Dunn said.

But Nay also believes masks will cause students to get sick. “To me, it’s a safety hazard,” Nay said.

She has read that bacteria can build up on masks and cause the wearer to become ill — though doctors say regular laundering of masks eliminates mold, bacteria and other contaminants.

Nay and Cottam both say health and safety are not their only concerns. Both moms say they believe government officials have overstated the dangers of coronavirus to create an opportunity to control people’s lives, and mask requirements are just one way to get people used to being told what to do.

The possibility of a misdemeanor charge has further fueled Nay’s worries.

“I know everybody has different views on it, but that’s out of hand,” she said. “At least give the parent the misdemeanor. Don’t give my kids, who are that young, a misdemeanor.”