What would happen if a Utah school district issued a mask mandate in defiance of the state’s ban?

The state’s constitution spells out possible consequences, and few districts seem willing to test it.

(Rick Egan | The Salt Lake Tribune) Students at Shoreline Junior High in Layton on Wednesday, Feb. 3, 2021. The Legislature has banned schools from requiring masks this year. But what if a district decided to defy that?

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In other states where lawmakers or governors have banned schools from requiring face masks, there are districts pushing back.

One school district in Arkansas sued the state — and a judge ruled in its favor — to drop the ban and let schools enforce mask mandates if they want. In Florida and Texas, some districts have decided to openly defy the state, moving forward with requirements for students and staff there despite the orders.

That is what’s happening in Oklahoma too, where a charter has said COVID-19 is spreading too rapidly not to take action.

But despite similar frustrations with the law banning mask mandates here, it doesn’t appear that any of the 41 districts in Utah are planning to join that fight. At least not immediately.

The districts and school boards most likely to push back, namely the four that fall in small left-leaning pockets within the deeply conservative state, have said they won’t be pushing back yet. The districts are starting the school year, instead, by strongly encouraging masks as allowed under the law.

And while the mayor of Salt Lake City on Tuesday afternoon raised the possibility of a mask mandate for schools in the capital, the Salt Lake City School District had earlier said it was not jumping into the debate.

“It’s not something we’re looking at right now,” confirmed Yándary Chatwin, the spokesperson there, before Mayor Erin Mendenhall’s comments. “We can’t force anything.”

Ben Horsley, the spokesperson for Granite School District in Salt Lake County, said, too, that its leaders are acting only on what’s “within our control and discretion” at this time. And so did Park City School District in Summit County.

That doesn’t mean defiance couldn’t still come in the future, if cases pick up or kids are getting severely ill. At least one of the districts is leaving that option open.

Superintendent Taryn Kay of Grand County School District, which covers Moab, said there aren’t efforts underway now to defy the state because the local health department there has helped the district get a temporary mask order for students K-6. It’s the only one in the Utah.

But Kay acknowledged that she will also be monitoring virus cases once it expires and “adjust as necessary.” That could include pushing back against lawmakers if the time comes.

She added: “I am hopeful that the Legislature will ultimately rethink their law prohibiting mask mandates before any Utah children are hospitalized or worse with a serious case of COVID that may have been prevented if a mask mandate were allowed.”

Outside of defying the state, there aren’t many other options for districts if lawmakers don’t reconsider. And most indications are that they won’t.

But there are likely consequences for districts that go that route.

The one legal option

The ban on school mask requirements in Utah has been a source of tension leading into this week and next, when most districts in the state will welcome students back for another academic year complicated by COVID-19.

There have been politically warring groups of parents, with one in favor of the Republican-majority Utah Legislature’s decision prohibiting schools from requiring masks. They say they want the freedom to choose for their children.

Those on the other side — which has been backed by many doctors in the state — say they’re upset that one of the best tools to protect kids from COVID-19 would be limited before the vaccine is available for those under the age of 12 and while the highly contagious delta variant spreads. Already, the state’s children’s hospital is full before classes have really begun.

That group believes the law is set up for schools to fail, without giving administrators the power to do what they feel is best for the students directly in their care.

The only way that a school can require face coverings is through a county’s health department and governing body. The first test of that, though, resulted in the effort being voted down last week.

Dr. Angela Dunn, the health director for Salt Lake County, had issued an order for students K-6 to wear masks while in the classroom. The county council voted 6-3 to overturn it two days later and one week before school starts. A large anti-mask crowd filled the council chamber and overflow area, at times heckling Democrats who spoke in support of face coverings for children.

(Trent Nelson | The Salt Lake Tribune) People sing the National Anthem under a Three Percenter flag after the Salt Lake County Council voted down Dr. Angela Dunn's mask ordinance for K-6 students, on Thursday, Aug. 12, 2021.

Some parents and educators have said the setup leaves them with little hope that a mask requirement would ever stick in a Utah school. Few districts in the state lean to the left and would likely have the support to pass a requirement through their governing body.

In fact, the commission over one conservative county in southeastern Utah — Washington — has already preemptively banned any lockdowns or mask mandates under what leaders are calling a “Liberty Policy.”

And even if a health department recommendation for masks at school were to pass, the Legislature still has the power to veto it.

At least one group, the Concerned Coalition of Utah, which is made up of parents, is planning to file a lawsuit against the state to challenge the ban.

Defying the state

Say a district in Salt Lake County still wanted to require masks and disagreed with the council’s vote. Would it be punished for pushing back against the state? Would any district ever actually attempt it?

Sharon Gallagher-Fishbaugh, the 2009 Utah Teacher of the Year, wishes at least one district might try.

“I think it would just take one district to call this into question,” said Gallagher-Fishbaugh. “I really hope there will be one district that will say we’re not going to go along with this ban.”

She pointed to Salt Lake City School District as the obvious choice. Last year, the district was the only one in the state to start the year entirely online as a precaution against COVID — despite pressure from the state to return in person, including threats of decreased funding and withholding teacher bonuses.

“And you saw their cases were much lower,” Gallagher-Fishbaugh said. “They did what they thought was right. They listened to medical professionals.”

Gallagher-Fishbaugh said she believes that districts should defy the state because their first responsibility is keeping their students safe.

Chatwin with Salt Lake City School District said the administrators there feel caught in a bind, trying to listen to health department leaders, who pushed for a mask mandate in Salt Lake County, as well as the law.

And if a district were to push back on mask requirements, it could face consequences.

The law itself, HB1007, that banned schools from instituting mask mandates, doesn’t spell out penalties. But a spokesperson for Gov. Spencer Cox, who signed the bill, confirmed that “the Utah State Board of Education can intervene if it believes a school district violates the law.”

That comes under the provisions of the Utah Constitution.

(Rick Egan | The Salt Lake Tribune) The State Board of Education listens to comments during a public hearing on Thursday, July 22, 2021.

Bryan Quesenberry, an attorney who represents the state school board, pointed to the section of code that states that any district or charter that violates the law can be ordered by the board to participate in corrective action.

The board could also decide to withhold funds — “temporarily or permanently” — or require that a school or district pay a penalty.

Quesenberry said he doesn’t know exactly how the board would respond, though, if a school administrator “decides to ignore HB1007.”

But the Utah Constitution is fairly strong in establishing the state government as the ultimate power here and any other bodies — like school districts — as subsidiaries.

‘Your personal choice’

Senate Majority Leader Evan Vickers, who sponsored the bill on the floor, said he doesn’t anticipate that any Utah school district will defy the state.

“I have to admit, we would expect our school districts to follow the law,” said the Republican from Cedar City.

But, if it becomes a problem, he said, he hopes legislators would be “adjust and react accordingly.” That could mean drafting another bill specifically detailing penalties for districts that defy.

Districts in the six other states — Arizona, Florida, Texas, Oklahoma, Iowa, South Carolina — where there are bans on issuing school mask mandates have faced mostly financial consequences for going forward with mandatory face coverings. In Florida, the governor has threatened to withhold school funding.

That has drawn fire from the Biden administration and the Centers for Disease Control and Prevention, where experts say that more people wearing masks provides better protection for all. President Joe Biden said governors should “at least get out of the way of people who are trying to do the right thing.” He has pushed for local control, where local school districts make the choice.

Vickers said there’s no more local control than letting parents decide what’s best for their kids.

“As far as a mask goes right now, I strongly believe that’s their choice,” he said. “That your personal choice. We’re just not going to mandate it or allow districts to mandate it.”