Utah parents sue state for banning school districts from enacting mask mandates

The new lawsuit claims the law is unconstitutional, discriminatory and leaves students at risk.

(Leah Hogsten | The Salt Lake Tribune) Celka van Dijk and her children Malin, 8, and Wilder, 5, on her lap attended Monday's press conference with a sign that read, "I'm no expert. Dr. Angela Dunn is. Listen to the expert." A group of Utah parents is suing the state for its ban on school districts enacting their own mask mandates, which they say leaves their kids unnecessarily unprotected and at-risk from COVID-19 in the classroom, Aug. 23, 2021.

A group of Utah parents is suing the state for its ban on school districts enacting their own mask mandates — which they say leaves kids “unnecessarily unprotected and at-risk” from COVID-19 in the classroom.

In the lawsuit filed Monday, the parents call on a judge to immediately strike down the ban. They fear that, with most Utah schools now open for the fall, the virus will spread quickly among unmasked and unvaccinated students, especially those at higher risk for serious illness.

“At the root of this is that I’m a scared mom without any other options at this point,” said Ashley Weitz, who is a plaintiff in the case.

The one thing that they believe would allow their kids to come back to classrooms safely, universal masking, has been blocked by the state. Now, theirs is the first legal challenge to come since Utah instituted the law this spring.

The filing in 3rd District Court includes 12 parents representing 15 students across the school districts of Salt Lake County. Nearly all of the kids either have a health condition that makes them more susceptible to severe infection from the coronavirus or a learning disability that makes staying home to learn difficult. Some have both.

Almost all are younger than 12 and are not yet eligible to get the vaccine.

Weitz’s child, Ezra, has acute asthma, for which he has been hospitalized. She worries that sending the 7-year-old to school in Salt Lake City, where he’d be surrounded by kids not required to wear masks, will mean certain sickness. But not sending him means that he won’t get the special needs resources he depends on for his education.

He’s been learning online since schools in Utah first shut down for the pandemic in March 2020. And it hasn’t been easy, Weitz said.

(Leah Hogsten | The Salt Lake Tribune) Ezra Weitz, has acute asthma, for which he has been hospitalized, as well as hemophilia, which causes his blood to not clot properly. His mother Ashley Weitz, a plaintiff in the lawsuit worries that sending her 7-year-old to school surrounded by kids not required to wear masks, will mean certain sickness. Weitz and other Utah parents are suing the state for its ban on school districts enacting their own mask mandates which they say leaves their kids unnecessarily unprotected and at-risk from COVID-19 in the classroom, Aug. 23, 2021.

She feels like her child is being discriminated against because of his disabilities and not able to access the education he is guaranteed to under the Utah Constitution. That is the primary argument of the lawsuit.

“We believe the law is unfair and unconstitutional,” said Greg Skordas, the attorney representing the families, during a news conference Monday. “Utah’s constitution is one that guarantees our children an education. That’s unfettered.”

He believes the state cannot consider online education as an equitable alternative. For one thing, it’s not being offered by every district. And it isn’t viable for all students — especially those who need in-person services like Ezra.

Last year, all Utah K-12 schools were under a mask mandate. And spread of the virus within classrooms was fairly limited.

Ezra sat in the front row of the news conference in a black mask, wearing sparkly boots and sunglasses that make him feel brave. “I like masks because they protect me,” he said. “And vaccines hurt a lot less than my blood draws.”

His mom added: “It’s really frustrating that it’s the most vulnerable kids who are still being disrupted the most.”

What the law says

The parents say that the highly contagious delta variant — which wasn’t as widespread when the Legislature passed the law — has added to their concerns. They are backed by many Utah doctors.

They want state leaders to support the recommendation from the Centers for Disease Control and Prevention that all students wear masks to limit spread; when more people have their face covered, the federal department says, infection rates decline.

The lawsuit names Utah Gov. Spencer Cox, Lt. Gov. Deidre Henderson and Utah Attorney General Sean Reyes as responsible for upholding what the plaintiffs see as an unconstitutional mask mandate ban that leaves their kids unsafe. Cox signed the so-called “endgame” bill into law in May.

His office did not respond to a request for comment Monday. A spokesman for Reyes declined to comment.

In the law, HB1007, the Republican-dominated Utah Legislature spelled out its plan for the end of the pandemic and 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, which started with a 30-day mask mandate for K-6 students last week. Summit County has said it will require masks for kids in elementary classrooms if infection rates get above 2%.

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 earlier this month by the County Council on party lines, with Republicans against it.

Since then, Salt Lake City Mayor Erin Mendenhall has put into place an emergency order for masks in city schools for students K-12. It’s unclear if that 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.

In the lawsuit, the parents ask for the County Council’s vote to be vacated and for Dr. Dunn’s mask order to stand. They say health departments and school districts — not county governments or the state — should have the authority to rule on masks.

“Take those roadblocks away and let the schools, let the health department, let those who really know what makes for a safe environment make the decisions,” Skordas said.

One parent carried a sign that said, “I’m no expert. Dr. Angela Dunn is. Listen to the expert.”

Hope for an expedited hearing

Jessica Pyper, a plaintiff in the case, has two kids. One attends a charter in Kearns and the other would be going to preschool in Jordan School District this fall. She plans to keep both home.

Her older son, who’s 10 years old, has Type 1 diabetes, which leaves him susceptible to illness. Her younger son, who’s 3 years old, needs speech therapy services. But if she sends her younger son to school for that, he could bring the virus back to her older son.

So instead, Pyper said she’s made the difficult choice to have her younger son wait to attend school while her older son does “home and hospital” to get an education. His charter isn’t offering an online option this year.

“We’re stuck in this space where we have to keep our kids home again because no one is doing anything to protect them,” she said. “But telling them to continue to stay home is very much not the answer. It’s not fair to them.”

Other parents in the lawsuit have kids with immunodeficiencies. One has a chronic auto-inflammatory condition. Another has cerebral palsy. Some have transferred their kids to private schools where masking can be enforced. But they say, with the costs, that’s not feasible for all.

The parents — many of whom are members of the grassroots Concerned Coalition that is fighting for universal face coverings in the classroom — say the state has made their already vulnerable children even more vulnerable by banning school districts from enacting mask mandates.

Skordas also notes in the lawsuit that the Utah Board of Education has previously required that all students get vaccinated against smallpox before they were allowed to attend public schools. He says requiring masks in the middle of a pandemic is less invasive but equally appropriate.

The parents and attorney are asking for an expedited hearing on the case with all schools being in session in the state by Tuesday.

“We need to get this decided right away,” Skordas said.

The attorney added that the parents are starting at the state level and may decide to later file a case in federal court, if needed. That complaint, he noted, would focus on violations of the Americans with Disabilities Act. Parents in Texas are currently suing their governor with that argument.

The U.S. Department of Education has also sent letters to each state with a mask mandate ban, including Utah, urging them to repeal it. Cox responded by standing by the law in Utah.

The issue of masks in the classroom has divided the state and country. Here, there have been politically warring groups of parents, with the other side in favor of prohibiting schools from requiring masks and “allowing freedom.”

Chris Phillips, co-founder of the Concerned Coalition, though, said Monday: “Our enemy is not other parents. It’s not other parents’ kids. It’s the disease.”

Several kids danced around the room during the news conference Monday. All wore masks.