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Utah, SLCo ask judge to dismiss school mask mandate lawsuit

Masks in schools
Posted at 10:02 AM, Dec 08, 2021

SALT LAKE CITY — Attorneys for Salt Lake County and the state of Utah have asked a judge to dismiss a lawsuit filed over laws that severely restrict K-12 mask mandates.

A group of parents of students and the Concerned Coalition of Utah filed a lawsuit, arguing that the legislature's recently passed laws that limit the ability of school districts to impose COVID-19 mask requirements interfere with childrens' right to an education under the state constitution.

"This case is not about the best masking or educational policies for Utah schools. Rather, this case is about who is empowered, in our constitutional system, to determine mask and educational policies for schools during a pandemic, and whether those who are authorized to set policy followed Utah’s Constitution and statutes," assistant Utah Attoney General David Wolf wrote in the motion. "The answers to those questions are clear: The Legislature, in whom constitutional authority resides to set both public health and education policy, may lawfully delegate the power to issue school masking orders to local health departments with oversight from local county councils."

The filings were expected. FOX 13 reported the Utah Attorney General's Office had informed a judge it was asking to have the lawsuit thrown out, delaying a request by the parents and the coalition to impose a restraining order, blocking the laws from being enforced. Lawyers for the parents and the Concerned Coalition of Utah complained the case was "stalling."

The Utah State Legislature passed laws prohibiting school districts from imposing mask mandates on their own. They can seek one through a local health department, which can issue a public health order. However, a county council or commission can overrule them. It happened when Salt Lake County's council overturned a mask mandate (Salt Lake City Mayor Erin Mendenhall issued her own under emergency powers). Grand County's commission imposed a mask mandate on the advice of its local health department. Summit County has had one off and on in schools based on COVID-19 cases.

The Salt Lake County District Attorney's Office argued that the children are not being unfairly deprived of an education.

"Because Plaintiffs’ children have access to curriculum through online instruction, they are not deprived a free and appropriate public education and their first claim for relief must fail," deputy Salt Lake County District Attorney Perrin Love wrote.

In its filing, the Utah Attorney General's Office argued the parents' now have the ability to have their children vaccinated so the case should be thrown out as moot.

"Plaintiffs ask this Court to grant extraordinary relief based on the theoretical possibility that the Health Department might issue a mask mandate. A highly effective vaccine for children ages 5 to 11 is now available as the Order anticipated," Wolf wrote. "Even without universal vaccination, Plaintiffs have not alleged that the Salt Lake County Health Department would issue another health order requiring masks to be worn in schools under these circumstances. Accordingly, Plaintiffs’ claims are moot and must be dismissed."

The Concerned Coalition of Utah and the parents' attorneys will respond to the filings before 3rd District Court Judge Vernice Trease decides whether to dismiss the lawsuit entirely, or let it go forward and temporarily prohibit Utah from restricting mask mandates.

Read the Utah Attorney General's filing here:

Read Salt Lake County's filing here: