KSL+: Efforts to end mask mandate bans

Dr. Marc Harrison, Intermountain Healthcare: I’m here today…I would normally avoid a group like this. But I’m here today because what we’re talking about is so important.

Matt Rascon: This week on KSL+…

Dr. Marc Harrison: I hope that all of you who aren’t wearing masks aren’t carrying the Delta variant. Because if you are you could kill me. This is serious stuff.

Matt Rascon: The debate over how to combat COVID continues.

Gov. Spencer Cox: As much as I dislike it, I’m going to try to especially when I’m around unvaccinated people, and immunocompromised people, I’m going to try to wear a mask.

Matt Rascon: Weeks into the new school year, the impacts of the virus are apparent. Football games canceled, students and teachers getting sick. Case rates are higher than they were a year ago when the state decided to require universal masking in schools.

Chris Phillips, Concerned Coalition: This year, we have even more information about how to keep our kids healthy and in school. We have the right tools to win this war against COVID-19, even with new variants. Let me be clear, masks are safe and effective at preventing the spread of COVID-19. Our children generally tolerate wearing them well. What they don’t tolerate is the pandemic that continues to rage around us.

Matt Rascon: The state projects that in just the month of September, It’s possible 39,000 kids between five and 17 years old, could be infected. kids are hospitalized at a rate of about six per 1,000. By that math, that’s 234 kids that could be hospitalized in the state. And really in this region, there’s only one hospital designed to care for the sickest of kids. And that’s Primary Children’s, which is already full from COVID, RSV and typical summer trauma.

Jessica Pyper, parent: I’m terrified. I have not slept great in weeks.

Matt Rascon: There are a couple of things happening right now when it comes to masks and schools. The first–last week a group of parents filed a lawsuit, naming Governor Spencer Cox, Lieutenant Governor Diedre Henderson, Utah Attorney General Sean Reyes, and Salt Lake County as defense.

Greg Skordas, attorney: This is our call to action to protect our children and our community.

Matt Rascon: The plaintiffs include Utah parents who are caregivers of at risk children, and kids with disabilities along with the nonprofit group, Concerned Coalition

Greg Skordas, attorney: Really making it impossible for our schools to do what their chartered to do, what they’re required to do what they’re constitutionally mandated to do, which was to provide a free and safe education.

Matt Rascon: The lawsuit argues the laws preventing mask mandates violates Utah’s Constitution, restricting access to a free, appropriate public education, deprives students of due process and equal protection and causes harm to vulnerable individuals and families. Some of those words, you’re going to hear a lot of–free, appropriate public education, or FAPE. Nate Crippes from the Disability Law Center explains.

Nate Crippes, Disability Law Center: Under both the Rehab Acts and the IDEA, and they’re different in some ways, but they both have a provision that in public education, you have to provide a free and appropriate public education. And so there are provisions of law that kind of decided that they have to provide that. The challenge with something like the IDEA is, you know, a student has an IEP, and that, you know, that’s part of ensuring that they are provided that free and appropriate public education or FAPE. I think now what you have is, you know, school districts are…for students on an IEP kind of having to make sure that they’re provided. They do have an obligation to provide at this juncture. That hasn’t gone away because of the pandemic or anything. And so, if a student for some reason can’t return to school, because of the lack of a masks, you know, an IEP is going to have to make sure they’re going to still have to provide you know what supports that student needs to get their education.

Matt Rascon: The Federal Department of Education is launching an investigation into five states, including Utah for banning mask mandates, saying it denies students with disabilities access to a free appropriate public education under the Americans with Disabilities Act. Governor Cox sent a letter to the president of the Department of Education saying the Department of Education signed off on the state’s plan in July. Utah’s law is different than other states in that it allows local health departments to issue mask mandates. And the county can overturn the health order like we saw the Salt Lake County Council do in August. But the team at the Disability Law Center are worried about reports that Governor Cox offered to use an executive order to require masks but school superintendents shut him down. Here’s Nate Crippes again.

Nate Crippes: We’ve been concerned about this legislation for months now. I mean, we’ve known about it. We knew it was kind of potentially going to have an issue. And I think there were some challenges with kind of how the state has laid it out. No other states have brought, you know, some lawsuits. Obviously, this wasn’t an executive order kind of outright banning masks, there’s kind of more nuance to it in our state. And so it’s something we’ve been looking at for a while. And I will say that, you know, we had hopes that the Department of Education might look into this for this reason, I think it’s certainly a question worth investigating, from the federal administration. When they, I guess it was last week or two weeks ago, they announced that they were kind of considered, they’d sent a letter to the state saying they were considering, you know, looking into these states with mask bans. I know, Utah was one of many states that got a letter on this. And we had some conversations internally. And we thought, Well, you know, let’s think about whether or not we want to submit something to OCR [Office of Civil Rights] to kind of explain our perspective on this. And so we had planned to do that. And then yesterday, they announced that they were opening an investigation. And so in an effort to I think, try and provide them some context from our thinking. Over the last few months, the reporting that we mentioned in the letter from the Salt Lake Tribune, that the superintendents really rejected the authority from the governor to potentially enact a mandate, really does, you know, make this a little, a little more interesting in the sense that, I think initially, what you had was a legislative action, that gave some leeway for local health departments to maybe do something but really took anything away from local education. They took the authority away from them, but it seemed as though now, I think, from OCR’s perspective, it’s interesting, because these are, these are the people who get the funding, you know, they get this this education funding, and they’re saying, No, we don’t want the authority to enact these mask mandates. And so I think it’s worth, you know, an investigation into whether or not you know, that, that is them failing to meet their obligations. And so we just tried to spell that out a little bit in the letter, you know, show the standard of I think what, you know, discrimination should you know, the the ADA and Rehab Act claims, the standards for that.

Matt Rascon: For many families, this isn’t just about statutes, case, law and loopholes. This is about life.

Ashley Weitz, parent: My name is Ashley Weitz, thank you all so much for being here. I’m here because my child, my seven year old, rising second grader, already faced an uphill battle in public education in having granted to him the rights that are his for a free appropriate public education, for free and equal public education. As the virus continues to rage, our schools are missing the safeguards, the basic, the very basic risk mitigation strategies that we know help and we know work to minimize spread. I am a disabled single mother, my child is at risk. My child has multiple chronic health conditions and his health care providers have recommended that he not return to school in person until vaccines are readily available until we’ve gotten through this impending respiratory season. I would not be sending my son to school in person, regardless of a mask mandate in schools.

But we have now been waiting about 560 days of our 45-day IEP evaluation with the district, that is unable to implement those risk mitigation strategies that would make his access more equitable, more would make it safer, when we can’t ensure that therapists and specialists will be masked in district buildings, we can’t ensure that Ezra has equitable access to those services that are guaranteed both by the state of Utah and in federal statute.

We’ve heard a lot about minimizing disruptions to education. We’ve heard a lot about minimizing upheaval in children’s lives. I am here today because it is children like Ezra who are at the most risk and the most vulnerable, who seemed to be falling through every crack that has been created by what I view as legislative overreach. When his district does not have the authority to mandate masks in district buildings, we do not have access. I’m also here because there are 28 other counties in Utah. With many, many children, who are in very similar situations, there are 40 other school districts in Utah, with many, many other children for in similar situations with families who are faced with no good options.

Life is both hard and wonderful and beautiful as a single mother. And when you are the entire support system, situations like these are very, very scary. And feeling like you can’t rely on those communities. On those systems that are there. To ensure safeguards. Make it feel like this situation is impossible.

Matt Rascon: Nate says that accommodations for students with disabilities could look like having one classroom that has masks or substantial upgrades to air filtration systems. What allows a student access to a free appropriate public education will vary from student to student but right now, he worries that these laws discriminate against disabled students. For now, parents are keeping their kids home or sending them to school and hoping for the best until a vaccine is approved for children under 12 years old. That does it for us this week here on KSL+, I’m Matt Rascon, and we’ll see you again next week.