DAVID N.

WOLF (6688)
LANCE SORENSON (10684)
JEFFREY B. TEICHERT (7000)
Assistant Utah Attorneys Generals
OFFICE OF THE UTAH ATTORNEY GENERAL
160 East 300 South, Sixth Floor
P.O. Box 140856
Salt Lake City, Utah 84114-0856
Telephone: (385) 910-4521
[email protected]
[email protected]
Counsel for Defendant Governor Spencer J. Cox

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

CONCERNED COALITION, a Utah 501(c)(4) Not

for Profit Corporation; A.B. as general guardian on GOVERNOR SPENCER J.
behalf of E.L., a minor; A.W. as general guardian COX’S OPPOSITION TO
on behalf of E.W., a minor; H.N. and D.N. as PLAINTIFFS’ MEMORANDUM
general guardians on behalf of L.N., a minor; J.P. as IN SUPPORT Of MOTION FOR
general guardian on behalf of R.P. and S.P., minor A TEMPORARY RESTRAINING
children; L.H. as general guardian on behalf of C.H. ORDER AND PRELIMINARY
and T.H., minor children; N.J. and S.J. as general INJUNCTION
guardian on behalf of C.J. and A.J., minor children;
S.S. as general guardian on behalf of D.S. and T.S.,
minor children; K.W. as general guardian on behalf Case No. 210904453
of O.W., a minor; and C.P., and C.P, as general
guardians on behalf of minor children M.P., L.P., Honorable Vernice Trease
and D.P.
Plaintiffs,
v.
SPENCER J. COX, in his official capacity as
GOVERNOR OF UTAH; and SALT LAKE
COUNTY;
Defendants.
 INTRODUCTION

This case is not about the best masking policy for Utah schools. Rather, this case is about

who is empowered, in our constitutional system, to determine mask policy for schools during a

pandemic, and whether those who are authorized to set that policy followed Utah’s Constitution

and statutes.

Here, Plaintiffs, who are guardians of 15 minor children in Salt Lake County and a non-

profit corporation organized on their behalf, challenge the constitutionality of two statutes

(collectively, the “Challenged Statutes”). Utah Code § 53G-9-201(5) provides that a “[Local

Education Agency (“LEA”)], an LEA governing board, the state board, the state superintendent,

or a school may not require an individual to wear a face covering to attend or participate in in-

person instruction[.]” Utah Code § 26A-1-114, however, empowers local health departments to

issue health orders for their jurisdictions, including mask mandates in schools, and provides that

county councils “may terminate a public health emergency or an order of constraint issued by the

local health department by majority vote.”1 This statutorily defined process has been followed in

different counties, which have implemented different mask policies.2 Plaintiffs challenge these

provisions as violating Utah Constitution, Article 10 §§ 1, 3 and Article 1 § 7.

Plaintiffs contend that, if a universal mask mandate is not enacted, they will be forced to

utilize distance learning rather than attend school in-person. They conclude that the lack of a

universal mask requirement therefore “excludes” them from education in violation of Utah

1
Utah Code § 26A-1-114(7)(d). See also Utah Code § 26A-1-114(9)(a)(iii).
2
See “Grand County Commission, Letter of Support for Mask Mandates,” (attached hereto as Exhibit
A);“Summit County Public Health Order 2021-01, August 21, 2021” (attached hereto as Exhibit B);
“Navajo Department of Health, Public Health Emergency Order No. 2021-015,” (attached hereto as
Exhibit C); “Public Health Order SEUHD 2021-01GC, August 18, 2021,” (attached as Exhibit D).
Defendant Salt Lake County, through its County Council, overrode its local health department masking
order.

1
Constitution, Article 10 § 1 (“Open Schools Clause”). Contrary to Plaintiffs’ assertions, just nine

months ago Judge Adam Mow was presented with the question of whether distance learning

satisfies the Open Schools Clause and held that “the Utah Constitution guarantees children

access to the curriculum of the school, not access to their chosen modality of instruction.”

Accordingly, Judge Mow upheld distance learning as constitutionally sufficient, even though it

was more difficult for some students. Bergstrom v. Utah, Ruling & Order Denying Plaintiffs’

Motion for Preliminary Injunction, Case No. 2009043, Slip Op. at 14, 21 (Utah 3rd District,

January 27, 2021) (“Bergstrom”)(Copy attached as Exhibit E).

Decisions about whether schools should employ universal mask mandates during a

pandemic are difficult and sensitive, involving many competing interests. The Legislature, in

whom constitutional authority resides to set both public health and education policy, delegated

the power to issue school masking orders to local public health departments and local county

councils, rather than LEAs. The Constitution clearly vests power to make these determinations

in the Legislature, and the prudential considerations of the political question doctrine counsel the

Court to stay its hand in this case.

Should the Court choose to decide this political question, it must still deny Plaintiffs’

motion because Plaintiffs do not satisfy the four elements necessary for injunctive relief: (1)

Plaintiffs are unlikely to succeed on the merits because the challenged statutes have a rational

basis and do not close the schools to anyone; (2) there is no irreparable harm because every

student has a constitutionally sufficient educational option; (3) the Legislature and County

Council balanced the potential harms and created a constitutionally appropriate process for

imposing and lifting mask mandates; and (4) the public interest favors carrying out the will of the

people, as reflected in the statutes enacted by their elected representatives.

2
 The Legislature has authority under the Utah Constitution to establish the public policy of

the State, for both health and education, including explicit constitutional authority to establish

schools and make laws governing them. This remains true for the difficult policy issues related to

COVID-19, balancing competing concerns of public health, individual liberty, and the optimal

way to provide education in these trying times. Contrary to Plaintiffs’ assertions, no provision of

the Constitution vests this decision in the courts. Nor was the Legislature’s decision to provide

local control over these important decisions irrational. The Court should not enjoin the Salt Lake

County Council from carrying out the Legislature’s duly enacted education and pandemic

policies, nor should it invalidate the laws allowing the Council to exercise its legislative

oversight.
ARGUMENT

I. Plaintiffs’ Claims are Non-Justiciable Political Questions

“The Utah Constitution explicitly establishes separation of powers between the

legislative, judicial, and executive branches at the state level.” Skokos v. Corradini, 900 P.2d

539, 542 (Utah Ct. App. 1995). Indeed, the Constitution provides:

The powers of the government of the State of Utah shall be divided into three
distinct departments, the Legislative, the Executive, and the Judicial; and no person
charged with the exercise of powers properly belonging to one of these
departments, shall exercise any functions appertaining to either of the others, except
in the cases herein expressly directed or permitted.

Utah Const., art. 5 § 1 (emphasis added). The text of this provision demands that no branch of

government exercise another branch’s powers unless the Constitution “expressly” permits it.

While Courts do not always apply the Clause literally, the language itself establishes vigorously

protective barriers between the three branches of government. “Courts must hold ‘strictly to an

exercise and expression of [their] delegated or innate power to interpret and adjudicate.’” Skokos,

900 P.2d at 541–42.

3
 Utah Courts rely extensively on federal case law when interpreting and applying the

political question doctrine. See id. In Baker v. Carr, 369 U.S. 186, 217 (1962), the United States

Supreme Court outlined a six-prong test for determining when the doctrine applies:

Prominent on the surface of any case held to involve a political question is found
[1] a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or [2] a lack of judicially discoverable and manageable
standards for resolving it; or [3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or [4] the
impossibility of a court’s undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or [5] an unusual need
for unquestioning adherence to a political decision already made; or [6] the
potentiality of embarrassment from multifarious pronouncements by various
departments on one question.
These determining factors are separated by the word “or.” Thus, “[t]o find a political question,

[Courts] need only conclude that one [of these] factor[s] is present, not all.” Schneider v.

Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005).

The Baker criteria is informed by “prudential concerns calling for mutual respect among

the three branches of Government.” Corrie, 503 F.3d at 981; see also Nixon v. United States, 506

U.S. 224, 252–53 (1992)(Souter, J., concurring)(noting that applying the political question

doctrine requires case-by-case attention to “prudential concerns”). “The prudential doctrine is

generally reserved for self-imposed restraints that arise at the judiciary’s discretion rather than by

the command of the Constitution.” Corrie, 503 F.3d at 981.

A. Plaintiffs Have Not Identified Manageable Judicial Standards.

Plaintiffs have not satisfied the second prong of the Baker test, which requires “judicially

discoverable and manageable standards for resolving” the issues before the Court. Baker, 369

U.S. at 217. Instead, Plaintiffs cite Spackman v. Board of Educ. of the Box Elder County Sch.

Dist., 2000 UT 87, 16 P.3d 533 (2000), for the general proposition that “any law or rule” is

unconstitutional “which would separate or divide the children of the state into classes or groups,

4
and grant, allow, or provide one group or class educational privileges or advantages denied

another.” (Pl.’s Memo at 8.) Based solely on this broad principle, Plaintiffs argue that any policy

other than a mask mandate is unconstitutional because “special needs children” may be placed at

increased risk from attending school in-person without a universal mask mandate. (Pl.’s Memo at

9.) To adjudicate these issues, “the Court’s inquiry necessarily proceeds to the point of deciding

whether the duty asserted can be judicially identified and its breach judicially determined, and

whether protection for the right asserted can be judicially molded.” Baker, 369 U.S. at 198.

Where there are “no judicially discernible and manageable standards for adjudicating,” then the

question is non-justiciable. Vieth v. Jubelirer, 541 U.S. 267, 281 (2004). And contrary to

Plaintiffs’ position, the Spackman Court urges “deference to existing remedies” fashioned by

legislative bodies, rather than judicially created remedies, out of “respect for the constitutional

separation of powers.” Id. at 539.

Moreover, there is no limiting principle in Plaintiffs’ assertion. One could just as easily

argue that the constitution requires the political branches to mandate vaccination, 25 feet of

social distance, individual plexiglass cubicles, or universal distance learning. If accepted by this

Court, the principle offered by Plaintiffs necessarily means that Utah’s Constitution requires

whatever mandates are preferred by any particular group of students who do not feel safe

attending school. Plaintiffs have not articulated meaningful standards for determining what

protective measures are required or how to structure a school environment that will not

discourage the participation of any student or group.

In the present case, Plaintiffs ask the judiciary to fashion a remedy which holds

legislative action unconstitutional, and they do so without providing any guiding or limiting

5
principles. Accordingly, it would be imprudent for the Court to answer these political questions

and intrude on the legislative and executive branches’ authority.

B. Plaintiffs Demand Specific Policy Outcomes.

The third factor in the Baker test deems it imprudent for courts to adjudicate where there

is an “impossibility of deciding without an initial policy determination of a kind clearly for

nonjudicial discretion[.]” Baker, 369 U.S. at 217. The policy judgments presented in this case

include how to balance priorities and methods of avoiding infection with educational objectives,

parental authority, student mental health, and personal freedom. The “initial policy

determination” Plaintiffs ask this Court to make is that a mask mandate is indispensable to

contain COVID-19. Plaintiffs present technical information and policy analysis in support of that

claim. (Pl’s Memo. at 3-4, 10-11 20-23.) But the Court is not well positioned to determine,

which policies will be most effective in preventing COVID-19 infection without creating

unintended harmful outcomes such as impairment of education, mental health issues, erosion of

personal liberty, or decreased attendance caused by the requested mask mandate.

More than 100 years ago, parents sought to “exclude from the public schools all children

who had not been vaccinated” for smallpox. Jacobson v. Commonwealth of Massachusetts, 197

U.S. 11, 34 (1905). Here, Plaintiffs similarly want this Court to exclude children from school

who refuse to wear masks. Notwithstanding evidence both recommending and opposing

vaccination, the Supreme Court held that setting the appropriate vaccination policy was the

province of the legislature and not the courts:

The possibility that the belief may be wrong, and that science may yet show it to
be wrong, is not conclusive; for the legislature has the right to pass laws which,
according to the common belief of the people, are adapted to prevent the spread of
contagious diseases. In a free country, where the government is by the people,
through their chosen representatives, practical legislation admits of no other
standard of action, for what the people believe is for the common welfare must be
accepted as tending to promote the common welfare, whether it does in fact or

6
 not. Any other basis would conflict with the spirit of the Constitution, and would
sanction measures opposed to a Republican form of government. While we do not
decide, and cannot decide, that vaccination is a preventive of smallpox, we take
judicial notice of the fact that this is the common belief of the people of the state,
and, with this fact as a foundation, we hold that the statute in question is a health
law, enacted in a reasonable and proper exercise of the police power.
Jacobson, 197 U.S. at 35 (emphasis added). Here, the challenged statutes represent the

Legislature’s carefully crafted policy to promote the common welfare, reflecting the will of the

people and weighing all relevant factors. “[N]o court . . . is justified in disregarding the action of

the legislature simply because in its or their opinion that particular method was—perhaps, or

possibly—not the best either for children or adults.” Jacobson, 197 U.S. at 35. Contrary to the

United States Supreme Court’s direction, Plaintiffs ask this Court to hold that the policy choices

of the respective legislative bodies are “not the best . . . for children[.]” Id.

C. Plaintiffs’ Requested Relief Disrespects the Judgment of Legislative Bodies

The fourth Baker factor cautions against “the impossibility of a court’s undertaking

independent resolution without expressing lack of the respect due coordinate branches of

government[.]” Baker, 369 U.S. at 217. Fundamentally, Plaintiffs’ argument is that the Salt Lake

County Council made the wrong policy decision when it terminated the mask mandate.

The Utah Supreme Court warned about the imprudence of the Courts stepping in to

reverse legislative decisions on matters of special public concern. “Public interest or importance

may often cut against the propriety of the exercise of judicial power. The matters of greatest

societal interest—involving a grand, overarching balance of important public policies—are

beyond the capacity of the courts to resolve.” Gregory v. Shurtleff, 2013 UT 18, 299 P.3d 1098,

1132 n.29 (emphasis added). There is no matter of greater “societal interest” in Utah, or the

United States, than how to return our society and economy to normal without unduly spreading

COVID-19. It is hotly debated in the media and within our governing legislative bodies.

7
Mitigating the risks of COVID-19 involves matters of scientific uncertainty. It would be

imprudent for the Courts to wade into this policy discussion by invalidating legislation.

The United States Supreme Court explained that “the political question doctrine excludes from

judicial review those controversies which revolve around policy choices and value

determinations[.]” Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986). The

issues here similarly involve “a grand, overarching balance of important public policies,”

including the need to contain COVID-19 while also giving weight to the educational needs of

Utah’s school children, safeguarding the rights of parents to choose for themselves how best to

rear their children, and protecting student mental health. Utah’s Constitution does not answer the

question of how to properly balance these important interests; but it clearly defines the roles of

the three branches of government, leaving these types of policy decisions in the capable hands of

the legislative and executive branches.

The legislative decisions of municipalities are generally political questions and cannot be

disturbed by the courts absent fraud, bad faith, or abuse of discretion. The Supreme Court held

that, “a municipal board’s decisions involving” considerations of “necessity, expediency or

propriety” are political issues where Courts should not interfere. Skokos, 900 P.2d at 542. In this

case, Plaintiffs seek to invalidate a decision of the Salt Lake County Council to overturn the

Health Department’s mask mandate, as well as the state statute granting the Council that power.

A municipal council’s decision balancing the management of a health crisis with the educational

preferences of the communities, mental health concerns, educational values, and personal liberty

are inherently political questions.

Striking down the Legislature’s carefully crafted process for imposing mask mandates

would do violence to our constitutional system and the separation of powers scheme.

8
Montesquieu, whose writings were frequently consulted by James Madison and other American

founders wrote: “[T]here is no liberty, if the judiciary power be not separated from the

legislative and executive. Were it joined with the legislative, the life and liberty of the subject

would be exposed to arbitrary control; for the judge would be then the legislator.” Montesquieu,

The Spirit of Laws, Loc. 2378 (Halcyon Press Ltd. Kindle Edition)(1752)(emphasis added).

While one Court decision out of harmony with the constitutional separation of powers is unlikely

to set Utah on a straight road to tyranny, a constitution is not just for the moment. It is for the

ages. “The purpose behind the separation of powers is to preserve the independence of each of

the branches of government so that no one branch becomes a depository for a concentration of

governmental powers.” Matheson v. Ferry, 641 P.2d 674, 681 (Utah 1982)(Howe, J.,

concurring). While a single case may not have an immediate impact, Courts must be vigilant to

exercise appropriate restraint and defer to the legislature to prevent the erosion of liberty.

II. Even if Plaintiffs’ Claims Were Justiciable the Court Should Deny Plaintiffs’
Motion for a TRO.
A. Legal Standard
1. Preliminary Injunctive Relief Should Not be Lightly Granted.
A preliminary injunction is an “extraordinary remedy never awarded as of right.” Winter

v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008); Sys. Concepts, Inc. v. Dixon,

669 P.2d 421, 425 (Utah 1983); Sutton v. Marvidikis, 310 P.2d 735, 736 (1957)(“the highly

extraordinary and drastic injunctive procedure most sparingly and cautiously should be

employed”). A court may issue a restraining order or preliminary injunction only if the applicant

demonstrates each of the following elements: (1) The applicant will suffer irreparable harm

unless the order or injunction issues; (2) The threatened injury to the applicant outweighs

whatever damage the proposed order or injunction may cause the party restrained or enjoined;

(3) The order or injunction, if issued, would not be adverse to the public interest; and (4) There is

9
a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or

the case presents serious issues on the merits which should be the subject of further litigation.

Utah R. Civ. P. 65A(e). If Defendants prevail on any of these four criteria, preliminary injunctive

relief cannot be granted.

2. The Requested Injunction is Highly Disfavored.

“Injunctive relief is fundamentally preventive in nature, and an injunction serves to

‘preserve the status quo pending the outcome of the case.’” Zagg, Inc. v. Harmer, 2015 UT App

52, 345 P.3d 1273, 1275 (quoting Hunsaker v. Kersh, 1999 UT 106, ¶ 9, 991 P.2d 67). There are

“three types of specifically disfavored preliminary injunctions” which include, “(1) preliminary

injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3)

preliminary injunctions that afford the movant all the relief that it could recover at the conclusion

of a full trial on the merits.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389

F.3d 973, 975 (10th Cir. 2004)(emphasis added).3

In the present case, the requested injunction would alter the status quo, and would be

mandatory—requiring an affirmative mask mandate, rather than to forego some conduct. There

is:
a heightened standard for granting any of the three historically disfavored
preliminary injunctions.
....
[A]ny preliminary injunction fitting within one of the disfavored categories must
be more closely scrutinized to assure that the exigencies of the case support the
granting of a remedy that is extraordinary even in the normal course.
Id. at 975 (emphasis added). Here, Plaintiffs seek to have this Court impose a policy requiring

everyone to wear face coverings in public schools. “Because [such] preliminary injunctions are

3
Utah Courts “look to the express language of our rules of civil procedure and, to the extent that they are
similarly worded, to the federal rules and cases interpreting them.” First Sec. Bank of Utah Nat. Ass'n v.
Conlin, 817 P.2d 298, 299 (Utah 1991).

10
disfavored, before a district court may grant such relief, the movant must make a heightened

showing of the [Rule 65A] factors.” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769,

776 (10th Cir. 2009).

B. Plaintiffs Are Unlikely to Succeed on the Merits

1. Every Reasonable Presumption Should Be Applied in Favor of
Constitutionality
When a party challenges the constitutionality of a law, the Court should make “every

reasonable presumption in favor of constitutionality and . . . not nullify a legislative enactment

unless it is clearly and expressly prohibited by the Constitution.” Utah Farm Bureau Ins. Co. v.

Utah Ins. Guaranty Ass’n, 564 P.2d 751, 753 (Utah 1977); see also State v. Drej, 2010 UT 35, ¶

9, 233 P.3d 476 (“[W]e presume the legislation being challenged is constitutional, and we

resolve any reasonable doubts in favor of constitutionality”)(internal citation omitted); Merrill v.

Utah Labor Comm’n, 2009 UT 26, ¶ 5, 223 P.3d 1089 (internal citation omitted)([T]he party

challenging a statute bears the burden of proving its invalidity); and State v. Herrera, 1999 UT

64, ¶ 18, 993 P.2d 854 (“Given the importance of not intruding into the legislative prerogative,

we do not strike down legislation unless it clearly violates a constitutional provision”).

2. The Defendants Have Not Closed the School System to Plaintiffs

a. No Child is Forbidden From Attending School
The Legislature has broad authority under the Utah Constitution to establish public

education policy. Utah Constitution, Article 10 § 1, declares, in relevant part:

The Legislature shall provide for the establishment and maintenance of the state’s
education systems including: (a) a public education system, which shall be open to
all children of the state[.]
Plaintiffs contend the laws passed by the Legislature and the action taken by the County Council

violate this provision because they allegedly forbid masking (not true)—and 15 special needs

children have chosen to refuse to attend in-person education without a universal mask mandate,

11
in fear of contracting COVID-19. But there are also children who will refuse to attend school in-

person if required to wear masks. Superintendent of Public Instruction, Sydnee Dickson, testifies

that, “The input received by our office indicates that, many parents of our school children do not

want statewide health mandates.” (Declaration of Sydney Dickson (“Dickson”) ¶ 6.)

The only authority Plaintiffs cite for their interpretation of the Open Schools Clause is

general language from Spackman v. Board of Educ. of the Box Elder County Sch. Dist., 2000 UT

87, 16 P.3d 533, stating that the Clause forbids “any law or rule which would separate or divide

the children of the state into classes or groups, and grant, allow, or provide one group or class

educational privileges or advantages denied another.” (Pl.’s Memo at 8.) However, in Spackman,

the school, “informed Spackman’s parents that she would not be allowed to attend school”

because of an injury she had sustained. Spackman, 16 P.3d at 534. In the present case, no

government authority has informed Plaintiffs that any child will be forbidden from attending

school.
b. The Open Schools Clause Does Not Guarantee Plaintiffs’
Preferred Modality of Instruction
While the challenged statutes do not exclude any student from school, the Logan City

Sch. Dist. Court made clear that a student could be excluded for reasons relating to “the child’s

own . . . health.” Id. The Court also clarified that the Open Schools Clause does not mean that

“every school building shall be open to every school child in the state” but that the “the system

of public schools shall be open to all children of the state.” Id. at 351 (emphasis added). “[W]hen

the public schools are open to all children on the same and equal terms, compliance has been had

with this clause of the Constitution.” Id. “When their home district provides a school suitable in

its curriculum, faculty, and facilities for their stage of educational growth and development, free

and open to them, and reasonably convenient for attendance, they are given all the Constitution

12
assures or provides for them.” Id. The public schools of Utah are open to all children on these

terms.

Policies may have a disparate impact because of the inherent individual variation between

students. The fact that some may voluntarily choose not to attend school in-person because of

their unique circumstances does not mean the schools are closed to them. In a case testing the

constitutionality of the Salt Lake City School District’s distance learning program, Judge Adam

Mow ruled that distance learning is a constitutionally sufficient method of delivering the

curriculum. Bergstrom at 21. While this Court is not bound by another Third District Court

ruling, Judge Mow’s conclusion is correct and consistent with the Utah Supreme Court’s well-

established precedent interpreting the scope of Article 10 § 1. Plaintiffs are unlikely to prevail on

the merits because distance learning is a constitutionally adequate substitute for in-person

learning.

The Bergstrom Court echoed the Logan City Sch. Dist. v. Kowallis, 94 Utah 342, 77 P.2d

348, 350-51 (1938) holding that, “there is no requirement that every school building shall be

open to every school child in the state. The provision is that the system of public schools shall be

open to all children in the state.” Id. at 13 (emphasis added). Offering a less drastic remedy than

exclusion, such as safer distance learning, is constitutional. In the present case, no child is

excluded.

In denying the plaintiffs’ motion for a preliminary injunction, the Bergstrom Court was

sympathetic to the difficulties some students had with distance education, but correctly held that

distance learning satisfied the access to education guaranteed by the Constitution:

While the Court is sympathetic to the many difficulties Plaintiff’s children face in
trying to navigate both the current pandemic and the issues with distance learning
SLCSD offers, Plaintiff’s children have been afforded the access to education
guaranteed to them in Article X, Section 1 of the Utah Constitution. As Starkey and

13
 Kowallis clarify, the Utah Constitution guarantees children access to the curriculum
of the school, not access to their chosen modality of instruction. Plaintiff’s
children are being offered access to curriculum appropriate to their age and
development level through the online instruction SLCSD offers.
Bergstrom at 14 (emphasis added). The Bergstrom Court declared both the online only model

and, subsequently, a limited in-person instruction plan constitutional, finding a quality distance

learning program was the school district’s way of providing a reasonable alternative for those

students who did not feel comfortable with the risk of infection presented by in-person

education. Id. at 15. The Court also noted that the plaintiffs had the option to transfer their

children to schools in other districts or charter schools if they disagreed with the pandemic

policies applicable to the Salt Lake City School District. Id. The same reasoning applies here.

Plaintiffs’ preference for a mask mandate does not make an even safer distance learning program

unconstitutional; nor justify the courts in making policy decisions best left to local authorities

about how to contain the pandemic while providing education for all Utah students and

respecting parental preference and personal liberty.

c. The Challenged Statutes Provide a Reasonable Process for

Imposing a Mask Mandate or Other Protective measures
Plaintiffs have inaccurately referred to Utah Code § 56G-9-210(5) as the “Mask

Prohibition.” (Pl’s Memo at 8-9, 11, 12.) The Legislature has not prohibited the wearing of

masks in school, nor has it banned masking requirements. Instead, the Legislature has simply

given decision-making authority to local health departments, with legislative oversight by the

County Councils—which creates a system where scientific data is utilized but is subject to the

will of the people. The statute only forbids education officials from imposing mask requirements

as a condition of in-person school attendance:

An LEA, an LEA governing board, the state board, the state superintendent, or a
school may not require an individual to wear a face covering to attend or participate
in in-person instruction, LEA-sponsored athletics, or another LEA-sponsored

14
 extracurricular activity, or in any other place on the campus of a school or school
facility after the end of the 2020-2021 school year.
Utah Code § 56G-9-210(5). By its own terms, this statute does not prevent local health

departments from imposing a mask mandate. It only limits schools and education officials.

Pursuant to Utah Code § 26A-1-114(1)(d), the Salt Lake County Health Department

issued Public Health Order 2021-2, requiring school children to wear face coverings. However,

as a check on this authority, the statute permits county legislative bodies to terminate public

health emergency orders.

The relevant county governing body may at any time terminate a public health
emergency or an order of constraint issued by the local health department by
majority vote of the county governing body in response to a declared public health
emergency.
Utah Code § 26A-1-114(7)(d).
[A] county governing body may at any time terminate by majority vote of the
governing body an order of constraint issued by a local health department in
response to a declared public health emergency.
Utah Code § 26A-1-114(9)(a)(iii). The Salt Lake County Council terminated Public Health

Order 2021-2 in Resolution No. 5888.

Nothing in the enactments of the Legislature or the action of the County Council forbids

children from wearing masks, attending school in person, or electing to participate in remote

education instead. Nothing in these enactments prevents schools from utilizing social distancing

strategies, distance learning alternatives, plexiglass barriers, enhanced sanitation, improved

ventilation, or issuing specially designed masks for students with health problems on a voluntary

basis. Students may also wear masks on a voluntary basis for their own protection.4

4
The CDC documents that: Cloth masks filter exhalation of micro-particles at 50 to 70 percent; masks
also help reduce inhalation of these droplets by the wearer (‘filtration for wearer protection’)” reducing
inhalation of fine particles by almost 50 percent. See Centers for Disease Control and Prevention, Science
Brief: Community Use of Cloth Masks to Control the Spread of SARS-Cov-2, May 7, 2021, (attached as
Exhibit F).

15
 Superintendent Sydnee Dickson circulated guidance that can be used to protect learning

disabled and at-risk students, including the use of masks in particular classrooms:

To accommodate these students, the IEP Team or 504 Team of an at-risk student
may determine that an at-risk student and all other students and staff present in the
at-risk student’s classroom must wear face coverings while in the classroom for the
at-risk student to receive a free appropriate public education (FAPE).
....
In order to ensure that no individual is required to wear a face covering in order to
participate in in-person instruction, any student who also attends school in the at-
risk student’s classroom who declines to wear a mask shall be allowed to transfer
to a different classroom.
(Dickson, Attachment 1.) This guidance is simple. No student is required to wear a mask to

participate in school in person. In a specific class where a face covering is needed to protect an

at-risk student, any student who does not wish to wear a mask may transfer to another classroom

where a mask will not be required. This guidance adheres to the text of Utah Code § 56G-9-

210(5), because it does not make mask wearing “a condition of in-person instruction.” While this

solution may not be feasible in all situations, Superintendent Dickson is hopeful “that this

guidance will prompt the sharing of more ideas and experience that can be added to a stratified

approach to protecting students from illness and therefore missing school.” (Dickson ¶ 4.)

Aside from any new policies, there is already a demonstrated path for county

governments that determine it is necessary to impose mask mandates. Grand County, Carbon

County, and Emery County have issued mask mandates.5 The Navajo Nation has a mask

mandate.6 Summit County has a mask mandate that goes into effect when certain COVID

transmission thresholds are reached.7

5
See Exhibit D.
6
See Exhibit C.
7
See Exhibit B.

16
 3. Plaintiffs Were Not Denied Due Process of Law

Plaintiffs allege their education has been diminished without due process of law. (Pl’s

Memo at 12.) For this proposition, they cite, without explanation, Atcitty v. Board of Education,

967 P.2d 1261, 1264 (Utah Ct. App. 1998). In Atcitty, the Court of Appeals considered whether a

plaintiff was denied due process when he was suspended for involvement in illegal drugs. Id. In

the present case, there is no suspension or other disciplinary action. No student is being singled

out. No one is denied access to public education. Unlike the plaintiff in Atcitty, Plaintiffs have

not articulated any process they have been denied. They simply disagree with a duly enacted

policy that applies equally to all students.

To the extent Plaintiffs’ Second Amended Complaint can be interpreted as including a

substantive due process claim, the United States Supreme Court has not recognized a

fundamental right to education under the Fourteenth Amendment. See Plyler v. Doe, 457 U.S.

202, 223 (1982); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37 (1973). Similarly,

the Utah Supreme Court has not included the right to attend school in-person as a fundamental

right protected by due process. “Fundamental rights are ‘those rights which form an implicit part

of the life of a free citizen in a free society.’” Tindley v. Salt Lake City Sch. Dist., 2005 UT 30, ¶

29, 116 P.3d 295, 303 (quoting Utah Pub. Employees’ Ass’n v. State, 610 P.2d 1272, 1273 (Utah

1980)). “The catalog of fundamental interests is relatively small to date, and includes such things

as the right[s] to vote, to procreate and to travel interstate.” Id.

Accordingly, the Court must evaluate the challenged statutes under rational basis review

to determine whether the policy is “rationally related to a legitimate state interest.”8 City of New

8
See Pls’ Second Amended Complaint, (Dkt. No. XX), pp. 4, 11 ¶ 37, where Plaintiffs assert rational
basis review applies.

17
Orleans v. Dukes, 427 U.S. 297, 303 (1976). A state policy “need not be in every respect

logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for

correction, and that it might be thought that the particular legislative measure was a rational way

to correct it.” Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 487-88 (1955). In the

present case, the process created by the challenged statutes rationally prioritized local control to

address unique local needs, to honor parent choice, to promote educational opportunity, and to

do the will of the people. This is a rational policy as Superintendent Sydnee Dickson testifies:

Our office received feedback from educators and administrators indicating that
there is a substantial need for local control because of the wide variation in facilities
and facility configuration, capacity, student population, class sizes, faculty and
staff, budgets and resources. The severity of the COVID-19 problem varies widely
in different municipalities and regions throughout Utah. The issues need to be
decided on a case-by-case basis to effectively protect our students with disabilities
while honoring parent choice allowed by law and promoting educational
opportunity.
(Dickson ¶ 5.) Such considerations are among the factors a rational legislative body should and

did take into consideration.9 Extensive hearings were held in committees and in floor debates in

both houses of the Legislature. For example, directly prior to the floor vote, the House sponsor of

the legislation stated his concerns about mental health and other educational issues caused by

masking, identified significant constituent support for the bill, and explained he was enacting a

process to protect students through coordination between local health departments and county

councils:
First of all, nothing in this bill prohibits somebody from wearing a mask if they
want to. They can still wear a mask. It becomes their choice in this case. The second
thing I think that’s really important is, this is about a return to normalcy for our
students and for our parents as they approach the fall semester.

9
See “House 2021 First Special Session Day 1, debate on HB 1007,” link to video:
https://le.utah.gov/av/ floorArchive.jsp?markerID=116168; “Senate 2021 First Special Session Day
1, debate on HB 1007,” link to video: https://le.utah.gov/av/floorArchive.jsp?markerID=116244; and
“Education Interim Committee, May 18, 2021,” link to video:
https://le.utah.gov/av/committeeArchive.jsp?mtgID=17645.

18
 I think you have to keep in mind that there have been mental health issues. There
have been other issues that those masks have created. And I can’t tell you the
amount of email that I’ve received that have been supporting this because of the
reassurance they have as they return back to fall school.
I also want to make sure you understand that this only applies to COVID-
19. It doesn’t apply to anything else. This is just COVID-19 and it maintains local
control through the process we set up in SB 195 to coordinate with our local
health department, to coordinate with our County Council or County Mayor, our
state health department with our Governor. This is important that we continue to
have these distinctions and these roles. . . . .
This is something we’ll continue to make sure that we are working together
on to provide a safe environment for our students … I think it’s important to give
people this assurance, to let people know that we really see our state heading back
to normalcy and that we want education to flourish.10
It was certainly rational for the Legislature to create a process where the Health Department

could consider scientific evidence and make proposals, leaving the final decision to the County

Council to reflect the will of the people.

While public education is not fundamental right, the rights of parents to rear their

children are fundamental. The United States Supreme Court stated that, “The liberty interest at

issue in this case—the interest of parents in the care, custody, and control of their children—is

perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v.

Granville, 530 U.S. 57, 65 (2000). This includes decisions regarding education. Id. (Thomas, J.

concurring.) In the present case, the Salt Lake County Council made a rational decision to leave

choices about face coverings to the parents of the individual students. To whatever degree

fundamental liberty interests have weight in this case, parental prerogatives regarding their

children’s education should be given substantial weight. Plaintiffs have failed to give the Court

any justiciable standard to weigh any protected liberty interest they claim against parental

10
See “House 2021 First Special Session Day 1, debate on HB 1007,” (Rep. Peterson at 35:10), link to
video: https://le.utah.gov/av/ floorArchive.jsp?markerID=116168.

19
prerogatives. The lack of any justiciable standard further indicates that such a weighing of

interests is a non-justiciable political question, as articulated earlier.

Finally, because students are not excluded from receiving education, Plaintiffs have not

been deprived of any protectable property interest. Because Utah’s students may choose to

receive remote instruction, they are not without an education and have access to the educational

system.

4. The Challenged Statutes Do Not Violate the Board of Education’s Authority

Although not mentioned in Plaintiffs’ Motion, the Sixth Claim in their Second Amended

Complaint arises under Utah Constitution Article 10 § 3, which states: “The general control and

supervision of the public education system shall be vested in a State Board of Education.”

Plaintiffs assert that Utah Code § 53G-9-210(5), preventing education officials from requiring

face coverings in school, violates this constitutional provision. As explained above, Utah Code §

53G-9-210(5) does not prevent education officials from requiring face coverings in school.

Moreover, Plaintiffs lack standing to defend the Board’s suggested authority. Utah

recognizes traditional standing, requiring that the Plaintiff “must be personally adversely affected

before he has standing to prosecute an action.” Gregory, 299 P.3d at 1102–03. Although the

courts occasionally grant “public interest” standing “where matters of great public interest and

societal impact are concerned,” courts will not “readily relieve a plaintiff of the salutary

requirement of showing a real and personal interest in the dispute.” Id. While Plaintiffs claim to

have a personal interest in the Board of Education’s decisions, they have not provided any

evidence that the Board would, in fact, impose a mask mandate. Based on Superintendent

Dickson’s testimony, the education community is largely opposed to universal mandates.

(Dickson ¶ 6.)

20
 With respect to public interest standing, “the court may grant standing only to the party

with the greatest interest in the case, or in other words, the most appropriate party.” Id. at 1104.

The most appropriate party to address the Board of Education’s authority is the Board of

Education. Plaintiffs have no traditional vested interest, nor are they the most appropriate party

to defend the Board of Education’s constitutional authority.

As to the merits of Plaintiffs’ claim, the Board must exercise its authority subject to the

laws enacted by the Legislature. Moreover, Plaintiffs’ reading of Section 3 ignores the

constitutional context within which it operates. Article 10 § 1 provides that “The Legislature

shall provide for the establishment and maintenance of the state’s education systems[.]” Article

10 § 4 provides that, “The general control and supervision of the higher education system shall

be provided for by statute.” The Utah Supreme Court explained the broad power of the

Legislature over education and defined the limits of the State Board of Education’s authority:

From the common and ordinary understanding of the plain language of the Utah
Constitution, it is clear that the State Board has been vested with the authority to
direct and manage all aspects of the public education system in accordance with
the laws made by the legislature. This must include not only the laws regarding the
public elementary and secondary schools, but also the laws regarding any other
schools and programs that the legislature designates as part of the public education
system.
Utah Sch. Boards Ass'n v. Utah State Bd. of Educ., 2001 UT 2, ¶ 22, 17 P.3d 1125, 1131

(emphasis added). Accordingly, the Legislature has the authority to preclude the wearing of

masks as a condition to attend school in-person. But the State Board of Education is well within

its authority to issue guidance that allows a fully masked environment within identified

classrooms.
5. Plaintiffs’ Facial Challenge is Untenable

Plaintiffs have brought a facial challenge, seeking an order striking down Utah Code §§

56G-9-210(5), and 26A-1-114(7)(d), (9)(a)(iii) as unconstitutional. See Pls’ Second Amend.

21
Compl. ¶¶ 120, 124. In an as-applied challenge, a party concedes that the challenged statute may

be facially constitutional but argues that, under the particular facts of the party’s case, “the

statute was applied . . . in an unconstitutional manner.” Gillmor v. Summit Cty, 2010 UT 69, ¶

27, 246 P.3d 102, 109. By contrast, “in asserting a facial challenge, [a] party avers that the

statute is so constitutionally flawed that no set of circumstances exists under which the [statute]

would be valid.” Id.; see also Gallegos, 2009 UT 42, ¶ 14, 220 P.3d 136 (recognizing that

“[a] facial challenge is the most difficult because it requires the challenger to establish that

no set of circumstances exists under which the [statute] would be valid. An as-applied challenge,

on the other hand, succeeds if the challenger shows that the statute was applied to him or her in

an unconstitutional manner.”)

Plaintiffs cannot succeed on their facial challenge because Plaintiffs do not contend the

laws were applied in an unconstitutional manner in Grand County, Summit County, the Navajo

Nation, and other jurisdictions that have used the statutory process to invoke mask mandates.

C. Distance Learning Will Not Cause Irreparable Harm

Acknowledging the academic and emotional challenges that some children may

experience as a result of online only education, the Bergstrom court found that option

constitutionally sufficient:
Having determined the Defendants complied with their obligations under the Utah
Constitution, the Court determines that, even were it to find the academic and
emotional difficulties Plaintiffs’ children have experienced are attributable to the
online-only model the Board adopted, the Board’s adherence to such model is not
a “wrong of a repeated and continuing character,” as required for a finding of
irreparable harm. As discussed above, Plaintiffs’ children are not entitled to a
specific modality of education—they are instead entitled to access the curriculum.
Defendants have provided Plaintiffs’ children such access through online
instruction, which is what Article X, Section 1 of the Utah Constitution requires.
Accordingly, the emotional and academic struggles Plaintiffs detailed in support of
their Motion do not constitute irreparable harm Defendants caused, as required for
the issuance of an injunction under rule 65A.
Id. at 16 (emphasis added).

22
 Guided by binding precedent, the Bergstrom court held that no irreparable harm was

shown because distance education did not violate the Utah Constitution. Id. at 10-16. The same

conclusion holds true in this case. It is not disputed that Plaintiffs have experienced difficulties

with on-line instruction. But that does not equate to a constitutional violation. Interpreting

Article 10 § 1, courts have repeatedly and uniformly concluded that children are entitled to

access to education—not a specific modality of instruction.

Here, Plaintiffs have not provided any evidence regarding the effect of a mask mandate

on children (including special needs children) other than the fifteen named Plaintiffs, nor have

they even taken those concerns into consideration. A blanket mask mandate in schools may

prove unpopular, which can be reasonably inferred from the County Council’s action as well as

the testimony of Superintendent Dickson. (Dickson ¶ 6.) Such a mandate would interfere with

the liberty of all students, may depress overall attendance, contribute to mental health issues,

interfere with learning and socialization, and cause other unintended consequences by creating a

remedy that is not specially tailored to conditions in the various localities.

In passing the challenged statutes, the Legislature balanced the potential harms. For

example, Senator Kathleen Riebe raised the same policy arguments advanced by Plaintiffs in this

case:
So, my concern comes with our most vulnerable populations and how they are
sometimes impacted at the highest rate. In my schools and my neighbors, I’ve
actually had children on IEPs and 504s that are actually absent at a higher rate
because they are concerned about their health. A lot of our units that we have in our
schools actually do have kids that are 504s for medical issues and serious medical
issues. . . . .
If I was working in a class or if I’m sending my child to a unit with
medically fragile students and there was no mask mandate in place, and our school
board at whatever district decided they didn’t want to have this mask mandate, but
every parent in that class said “yes, my child is medically fragile.” These students
are being left out. They are staying home at a higher rate than every population in
our school. They are not being sent. They are losing out on these interactions, and
these students actually don’t learn as well at home because [at school] they are

23
 getting physical therapy, occupational therapy, speech therapy. You can’t give
these types of therapy online.11
The Senate sponsor of the legislation, responded to these concerns by explaining that, if a

school had a class that was compromised by COVID-19 exposure, the school could go to the

local health department to have a mask mandate imposed for all or part of the school, with

ratification or termination of the order by the County Council.12 One member of the public at the

Education Interim Committee spoke in favor of local control, stating that some rural

communities in Utah had no cases of COVID-19 and, yet, were subject to the earlier statewide

mask mandate.13 Dr. Lyle Mason told the Committee that the age group 5-17 is the least

vulnerable group to COVID-19; that the elderly are 8,700 times more vulnerable to COVID-19

than those who are 5-17 years old; and that children are constantly touching their masks and,

thus, spreading contamination.14 Other input suggested that, during the earlier mask mandate, the

majority of school children were not wearing their masks properly and that the masks impeded

education.15 Indeed, Superintendent Dickson has testified that masks create “barriers to

learning.” (Dickson ¶ 6.)

Utah Code §§ 56G-9-210(5), 26A-1-114(1)(d),(7)(d), and (9)(a)(iii), taken together, are

not reflexively anti-mask. These statutes were enacted by the Legislature in full consideration of

the concerns raised by Plaintiffs, while recognizing that a mask mandate may be necessary in

certain situations. The law allows local health departments to assess the situation of a particular

11
See id. (Senator Riebe at 6:20 and 16:00).
12
See “Senate 2021 First Special Session Day 1, debate on HB 1007” (Senator Vickers at 11:50 and
18:28 ), link to video: https://le.utah.gov/av/floorArchive.jsp?markerID=116244.
13
See “Education Interim Committee, May 18, 2021,” (at 1:04 of recording), link to video:
https://le.utah.gov/av/ committeeArchive.jsp?mtgID=17645.
14
Id. (Dr. Lyle Mason at 0:45:43).
15
Id. (at 0:53:00).

24
school based on appropriate scientific information, and impose a mask mandate, subject to

termination by the County Council. The Legislature provided a clear procedure to respond to an

outbreak that includes imposing a mask mandate with appropriate and necessary checks and

balances. These procedures balance the possible need for a mask mandate with individual liberty,

parental prerogative, and local control by the people’s elected governing bodies. This Court need

not balance the harms because a rational elected Legislature already did so.

D. The Relief Requested by the Plaintiffs is Contrary to the Public Interest

“It is the power and responsibility of the Legislature to enact laws to promote the public

health, safety, morals and general welfare of society and this Court will not substitute our

judgment for that of the Legislature with respect to what best serves the public interest.” Bastian

v. King, 661 P.2d 953, 956 (Utah 1983). “The legislature, acting in accordance with

constitutional principles and expressing the will of the people, determines that which is in the

public interest and serves the public good.” Berube v. Fashion Centre, Ltd., 771 P.2d 1033,

1043 (Utah 1989). Enjoining the enforcement of the challenged statutes is against public interest

because such action would effectively substitute the Court’s judgment for that of the Legislature,

a body of duly elected officials whose actions reflect the will of the people.

The United States Supreme Court upheld a lower court finding that “a preliminary

injunction would have been against the public interest, as an injunction might have worked a

needlessly ‘chaotic and disruptive effect upon the electoral process.’” Benisek v. Lamone, 138 S.

Ct. 1942, 1945 (2018). Similarly, the statutes challenged in the present case create a process for

deciding whether to impose mask mandates. Invalidating those statutes during a pandemic would

have a disruptive effect on Utah’s schools. Because the “purpose of a preliminary injunction is

merely to preserve the relative positions of the parties until a trial on the merits,” an injunction

that upends existing law is not in the public interest. Id.

25
 CONCLUSION

For the reasons set forth above, the Court should deny Plaintiffs’ Motion for a Temporary

Restraining Order and Preliminary Injunction.

DATED: On this 23rd day of September 2021.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Jeffrey B. Teichert

DAVID N. WOLF
LANCE SORENSON
JEFFREY B. TEICHERT
Assistant Utah Attorneys General
Counsel for Governor Spencer J. Cox.

26
 CERTIFICATE OF SERVICE

I hereby certify that on September 23, 2021, a true and correct copy of the foregoing
GOVERNOR SPENCER J. COX’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’
MEMORANDUM IN SUPPORT OF MOTION FOR A TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION as well as correlating Exhibits A through F,
were filed using the Court’s electronic filing system. I further certify that true and correct copy of
each document was served, via email, to the following:

Gregory G. Skordas (#3865) LaShel Shaw (#13862)

Gabriela Mena (#17087) Perrin Love (#5505)
SKORDAS AND CASTON, LLC Tim Bodily (#6496)
124 South 400 East, Suite 220 SALT LAKE COUNTY DISTRICT
Salt Lake City, UT 84111 ATTORNEY’S OFFICE
Telephone: (801) 531-7444 35 East 500 South
Facsimile: (801) 665-0128 Salt Lake City, UT 84111
[email protected] Phone: (385) 468-7825
[email protected] [email protected]
Attorneys for Plaintiffs [email protected]
[email protected]
Attorneys for Salt Lake County Defendants.

/s/ Genevieve De La Pena

Genevieve De La Pena
Paralegal & Notary Public
UTAH ATTORNEY GENERAL’S OFFICE
EXHIBIT A
 GRAND COUNTY COMMISSION
Mary McGann (Chair) ∙ Gabriel Woytek (Vice-Chair)
Evan Clapper ∙ Jacques Hadler ∙ Trish Hedin
Sarah Stock ∙ Kevin Walker

August 17, 2021

Taryn Kay
Superintendent
Grand County School District

Bradon Bradford
Director/Health Officer
Southeast Utah Health Department

Jennifer Sadoff
CEO
Moab Regional Hospital

Re: Letter of Support for mandatory face coverings at Helen M. Knight Elementary School

Dear Ms. Kay, Mr. Bradford, & Ms. Sadoff,

The Grand County Commission would like to recognize the staff and administration of Moab
Regional Hospital for its unflinching and diligent response throughout the pandemic. We would
like to also recognize the Southeast Utah Health Department for its careful, thoughtful, and
evidence-based response and expertise in guiding the community through the pandemic. Lastly,
we would like to show our great pride in the students, families, teachers and administrators of the
Grand County School District for overcoming immense challenges in completing the 2020-21
school year and preparing for another complete year during a very turbulent period in our
history.

In the face of the current surge of COVID-19 cases and the highly contagious Delta variant, the
Grand County Commission offers its support to the Southeast Utah Health Department in issuing
a 30-day mask order for K-6 students in Grand County. This is not an ideal course of action,
and one not taken lightly given the challenges associated with masking for our children, families,
teachers and school administrators. As always, we as a Commission respect and respond to the
concerns and recommendations given by health professionals and school administration in
keeping the community safe and our children in a position to thrive.

The availability of ICU beds in our region continues to dwindle or remains non-existent, and the
community is currently in a crisis with regards to its ability to respond to any further surges in
COVID-19 transmission. Surges left unchecked by reasonable and proven methods for reducing
transmission have a disturbing domino effect on our health care system and overall public health.
A hospital battling to treat severe COVID-19 cases becomes less able to treat and respond to the
everyday common care needs that arise in the community. The health department becomes left

Commission’s Office ∙ 125 E. Center St. ∙ Moab, UT 84532 ∙ (435) 259-1346

www.grandcountyutah.net
with little time or energy for proactive public health efforts and the provision of resources to
community members who most need it.

At this time, it is the duty of the Grand County Commission to support this effort in protecting
the health, safely, and wellbeing of its population. We urge the citizens of Grand County to
continue to be vigilant, exercise basic prevention measures, receive vaccinations if possible, and
take a cautious approach so that we as a community feel comfortable allowing this order to
expire and we as a community can achieve the universally shared goal of overcoming this
pandemic and avoiding further disruptions to everyday life.

Sincerely,

Mary McGann
Grand County Commission Chair

Commission’s Office ∙ 125 E. Center St. ∙ Moab, UT 84532 ∙ (435) 259-1346

www.grandcountyutah.net
EXHIBIT B
______________________________________________________________________________

IN AND FOR SUMMIT COUNTY, STATE OF UTAH

_____________________________________________________________________________________

:
In the matter of: : PUBLIC HEALTH ORDER
: (Order of Constraint)
COVID-19 Pandemic within Summit County :
(Delta Variant) :
Order No.: 2021-01
:
:
: Date: August 21, 2021
:
: Legal Authority: Utah Code §26A-1-114
: Utah Code §26A-1-102
:
:
:
:

After giving legal notice to the Summit County Manager (the “County Manager”), the
Summit County Health Officer (the “Health Officer”) declared a Local Public Health
Emergency related to the COVID-19 Pandemic on August 21, 2021, for a period of thirty (30)
days (Utah Code §26A-1-114(8)(a)).

The Summit County Council (the “Council”) may extend a Local Public Health Emergency
longer than thirty (30) days (Utah Code §26A-1-114(8)(b)).

In Utah, local health departments are vested under Utah Code § 26A-1-114(1)(d) with
authority to establish measures as may be necessary to promote and protect public health and
control the spread of disease.

COVID-19 is a contagion that spreads from person to person. The Health Officer and County
Manager recognize the need for Summit County and the public to continue to work cooperatively
and proactively to slow the spread of COVID-19 and to address the myriad challenges COVID-
19 has created.

The Health Officer and County Manager find that COVID-19 poses a continuing, increasing,
and immediate threat to the public health of Summit County residents and visitors. The Delta
Variant of the COVID-19 virus is the dominant strain actively circulating in Summit County and
is more contagious than the original virus and other variants.

Page 1 of 9
 Orders of Constraint can only be issued during a declared Local Public Health Emergency
(Utah Code §26A-1-102(9)(a)). A Face-Covering (defined below) mandate is a form of an
Order of Constraint (Utah Code §26A-1-102(9)).

During a declared Local Public Health Emergency, the Health Officer and the County
Manager can jointly issue an Order of Constraint (Utah Code §26A-1-114(9(a)).

The Council can terminate an Order of Constraint at any time (Utah Code §26A-1-
114(9)(a)).

The Centers for Disease Control and Prevention (the “CDC”) has provided a summary of
the most up-to-date scientific data on COVID-19 in K-12 schools. 1 The CDC has recommended
the “use of multiple strategies – also called layered prevention – [which] provides greater
protection in breaking transmission chains than implementing a single strategy.” This is
especially the case in “areas with moderate to high community transmission, low vaccination
rates, and for people who are not fully vaccinated.” 2 According to a recent study from the
United Kingdom, “for every five additional cases per 100,000 population in regional incidence,
the risk of a school outbreak increased by 72%.” 3 Other studies found that where community
transmission rates were low, there was no association between in-person learning and
community spread, but when the transmission rates increased to moderate or high levels,
transmission rates simultaneously rose in schools. 4 “A study of elementary schools in Utah who

1
Science Brief: Transmission of SARS-CoV-2 in K-12 Schools and Early Care and Education Programs (July 9,
2021) https://www.cdc.gov/coronavirus/2019-ncov/science/science-
briefs/transmission_k_12_schools.html?CDC_AA_refVal=https%3A%2F%2Ffanyv88.com%3A443%2Fhttps%2Fwww.cdc.gov%2Fcoronavirus%2F20
19-ncov%2Fmore%2Fscience-and-research%2Ftransmission_k_12_schools.html#schools-cov2-transmission
2
Id. See Honein MA, Barrios LC, Brooks JT. Data and Policy to Guide Opening Schools Safely to Limit the Spread
of SARS-CoV-2 Infection. JAMA 2021;325(9):823-824. doi:10.1001/jama.2021.0374; Honein MA, Christie A,
Rose DA, et al. Summary of Guidance for Public Health Strategies to Address High Levels of Community
Transmission of SARS-CoV-2 and Related Deaths, December 2020. MMWR Morb Mortal Wkly
Rep 2020;69(49):1860-1867. doi:10.15585/mmwr.mm6949e2.
3
Id. See Ismail SA, Saliba V, Lopez Bernal J, et al. SARS-CoV-2 infection and transmission in educational
settings: a prospective, cross-sectional analysis of infection clusters and outbreaks in England. Lancet Infect
Dis 2021;21(3):344-353. doi:10.1016/s1473-3099(20)30882-3.

4
Russell FM, Ryan K, Snow K, et al. COVID-19 in Victorian Schools: An analysis of child-care and school
outbreak data and evidence-based recommendations for opening schools and keeping them open. Report from
Murdoch Children’s Research Institute and the University of Melbourne. 2020; Published 2020 September 25;
Goldhaber D, Imberman SA, Strunk KO, et al. To What Extent Does In-Person Schooling Contribute to the Spread
of COVID-19? Evidence from Michigan and Washington. 2020. CALDER Working Paper No. 247-1220-2.

Page 2 of 9
implemented layered prevention strategies, such as mask wearing and cohorting, found very low
transmission (secondary attack rate 0.7%) in December 2020 – January 2021.” 5

According to the most recent guidance from the CDC, “consistent and correct use of face
masks reduces the spread of SARS-CoV-2 and, with some exceptions, is recommended for use
indoors among people aged 2 and older who are not fully vaccinated. In general, people do not
need to wear masks when outdoors.”6 The CDC has further reported that “most studies that
have shown success in limiting transmission in schools have required that staff only or staff and
students wear masks as one of the school’s prevention strategies.” 7

Further, “[e]vidence from 10 studies (across all three viruses, including 2,647 participants)
found benefits for face masks in general (risk of infection or transmission when wearing a mask
was 3% vs 17% when not wearing a mask).” 8 In fact, a 2020 study found decreased mortality
rates associated with Face-Coverings. 9

5
Science Brief: Transmission of SARS-CoV-2 in K-12 Schools and Early Care and Education Programs (July 9,
2021). See Hershow RB, Wu K, Lewis NM, et al. Low SARS-CoV-2 Transmission in Elementary Schools – Salt
Lake County, Utah, December 3, 2020-January 31, 2021. MMWR Morb Mortal Wkly Rep 2021;70(12):442-448.
doi:10.15585/mmwr.mm7012e3.

6
Science Brief: Transmission of SARS-CoV-2 in K-12 Schools and Early Care and Education Programs (July 9,
2021).
7
Id. See Zimmerman KO, Akinboyo IC, Brookhart MA, et al. Incidence and Secondary Transmission of SARS-
CoV-2 Infections in Schools. Pediatrics 2021;147(4). doi:10.1542/peds.2020-048090; Gandini S, Rainisio M,
Iannuzzo ML, et al. A cross-sectional and prospective cohort study of the role of schools in the SARS-CoV-2
second wave in Italy. Lancet Reg Health Eur 2021;5:100092. doi:10.1016/j.lanepe.2021.100092; Fricchione MJ,
Seo JY, Arwady MA. Data-Driven Reopening of Urban Public Education Through Chicago’s Tracking of COVID-
19 School Transmission. J Public Health Manag Pract 2021;27(3):229-232. doi:10.1097/phh.0000000000001334;
Link-Gelles R, DellaGrotta AL, Molina C, et al. Limited Secondary Transmission of SARS-CoV-2 in Child Care
Programs – Rhode Island, June 1-July 31, 2020. MMWR Morb Mortal Wkly Rep 2020;69(34):1170-1172.
doi:10.15585/mmwr.mm6934e2; Kim C, McGee S, Khuntia S, et al. Characteristics of COVID-19 Cases and
Outbreaks at Child Care Facilities – District of Columbia, July-December 2020. MMWR Morb Mortal Wkly
Rep 2021;70(20):744-748. doi:10.15585/mmwr.mm7020a3; Volpp KG, Kraut BH, Ghosh S, et al. Minimal SARS-
CoV-2 Transmission After Implementation of a Comprehensive Mitigation Strategy at a School – New Jersey,
August 20-November 27, 2020. MMWR Morb Mortal Wkly Rep 2021;70(11):377-381.
doi:10.15585/mmwr.mm7011a2.
8
“Physical distancing, face masks, and eye protection to prevent person-to-person transmission of SARS-CoV-2 and
Covid 19: a systematic review and meta-analysis,” DK Chu, MD; EA Aki, MD; S Duda, MSc; K Solo, MSc, et. al.
The Lancet (Open Access Published June 01, 2020).
9
Leffler, Christopher & Ing, Edsel & Lykins, Joseph & Hogan, Matthew & McKeown, Craig & Grzybowski,
Andrzej. (2020). Association of country-wide coronavirus mortality with demographics, testing, lockdowns, and
public wearing of masks (Update June 15, 2020). https://www.researchgate.net/community/COVID-19

Page 3 of 9
 According to a recent study documented in the Official Journal of the American Academy of
Pediatrics, hospitalizations were more frequent in children/adolescents with COVID-19 than
with influenza.10

As a general measure, COVID-19 health restrictions cannot be imposed where the 14-day
case rate is less than 191 per 100,000 people (former Utah Code §26A-1-130(2)).

Summit County has a 14-day case rate of 249 per 100,000 people, placing the county within
the Moderate Level of Transmission under criteria separately established by the State of Utah
and the CDC.11

Summit County has a 78% vaccination rate among its citizens who are eligible to receive the
vaccine.12 The incidents of hospitalizations for COVID-19 patients, as well as deaths, among
vaccinated individuals is negligible. Further, reports are that break-through incidents of COVID-
19 among vaccinated individuals are unusual, but where they have occurred, the individuals are
either asymptomatic or report moderate symptoms. 13

Although the Summit County Health Department continues its extensive efforts to vaccinate
all eligible Summit County residents, no COVID-19 vaccine is yet approved by the FDA for
children under the age of 12. With the spread of the COVID-19 Delta Variant and case rates
rapidly increasing, Summit County is at a critical juncture in this pandemic, especially when
considering the younger population that is ineligible for vaccination.

When considering actions to protect the children in the school setting, all available
information is considered. On August 16, 2021 the American Academy of Pediatrics released a
report of State-Level Data indicating children were 18% of weekly reported COVID-19 cases in
the United States during the week of 8/5/2021 – 8/12/2021, a time period when many schools

10
Duarte-Salles, 30-Day Outcomes of Children and Adolescents With COVID-19: An International Experience
(Pediatrics 2021) https://pediatrics.aappublications.org/content/pediatrics/early/2021/05/28/peds.2020-
042929.full.pdf

11
Summit County COVID-19 Dashboard, Summit County Health Department
https://summitcountyhealth.org/dashboard/
12
Id.
13
KSL, Utah Hospitals Filling Up with Unvaccinated COVID-19 Patients (July 26, 2021); Salt Lake Tribune, Utah
hospitals are filling up, and more than 95% of the COVID patients weren’t vaccinated (July 13, 2021); U.S News &
World Report, In Utah, Hospitals Swell With Unvaccinated COVID-19 Patients (July 27, 2021); New York Times,
What to Know About Breakthrough Infections and the Delta Variant (August 11, 2021).

Page 4 of 9
were returning from summer break. This number is the highest it has been since the start of the
pandemic.14

Recent studies acknowledge that children generally fare better than adults when infected with
COVID-19.15 On August 20, 2021, the State of Utah reported 49,054 COVID-19 cases in
individuals between the ages of 1-14, which accounts for 10.8% of the total COVID-19 cases in
the State. Of the 49,054 cases (ages 1-14) reported in Utah on August 17, 2021, 345 (0.70%)
have been hospitalized because of COVID-19. On the same day, the State also reported one
COVID-19 death (0.002%) in a child between the ages of 1-14.

Considering the recent information regarding the outcomes of children infected with
COVID-19 and the intent to keep children in school while minimizing risk, we must
acknowledge the challenges and uncertainty presented by the Delta Variant for those who are
ineligible for COVID-19 vaccination. Therefore, we must rely on the science and data, along
with established frameworks, that support a layered approach to mitigating risk in the school
setting. These resources include the outcomes associated with other school districts throughout
the United States where the 2021-2022 school year started without formalized prevention
strategies in place.16

The COVID-19 Delta Variant has been reported to be more infectious than the original
COVID-19 virus,17 thus making public schools susceptible to being super spreaders of the

14
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-state-level-
data-report

15
CDC COVID-19 Response Team. Coronavirus Disease 2019 in Children – United States, February 12-April 2,
2020. MMWR Morb Mortal Wkly Rep 2020;69(14):422-426. doi:10.15585/mmwr.mm6914e4; Davies NG, Klepac P,
Liu Y, et al. Age-dependent effects in the transmission and control of COVID-19 epidemics. Nat
Med 2020;26(8):1205-1211. doi:10.1038/s41591-020-0962-9; Laws RL, Chancey RJ, Rabold EM, et al. Symptoms
and Transmission of SARS-CoV-2 Among Children – Utah and Wisconsin, March-May
2020. Pediatrics 2021;147(1). doi:10.1542/peds.2020-027268; Ludvigsson JF. Children are unlikely to be the main
drivers of the COVID-19 pandemic – A systematic review. Acta Paediatr 2020;109(8):1525-1530.
doi:10.1111/apa.15371; Munro APS, Faust SN. COVID-19 in children: current evidence and key questions. Curr
Opin Infect Dis 2020;33(6):540-547. doi:10.1097/qco.0000000000000690.

16
Hogan, S. & Dixon, K. (2021, August 9). Metro Atlanta schools report more than 1,000 COVID cases in first
days. The Atlanta Journal-Constitution. https://www.ajc.com/education/metro-atlanta-schools-report-more-than-
700-covid-cases-in-first-days/CZSKH2AIEZDMXMXRJA6MJDIA4U/

News Staff. (2021, August 15). Metro Atlanta school districts report over 4,000 cases of COVID-19 in first week.
https://www.wsbtv.com/news/local/metro-atlanta-school-districts-report-over-3700-cases-covid-19-first-
weeks/KO37EA3M5NDRFPGCGVEY6OIA4U/
17
CDC, Delta Variant: What We Know About the Science (August 6, 2021)
https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html

Page 5 of 9
COVID-19 Delta Variant. In order to narrowly target any Order of Constraint, it is the intent of
the Health Officer and County Manager that a Threshold Trigger (defined below) be established
for elementary private and public schools (the “Elementary Schools”) which would allow for a
temporary Face-Covering order in specific instances where it is warranted and for a minimum
amount of time.

The proposed Threshold Trigger uses the approach outlined in Utah Senate Bill 107 (SB 107)
describing the threshold for implementing the Test-To-Stay program. In schools larger than
1,500 students, Test-To-Stay is activated when 2% of the population tests positive for COVID-
19 during a 14-day timeframe. For schools with less than 1,500 students on a given campus,
Test-To-Stay is activated when 30 positive COVID-19 cases are identified during a 14-day
period. All of the schools in Summit County are subject to the 30-day threshold given they do
not exceed 1,500 students on a given campus. However, this Order of Constraint uses the 2%
caseload over a 14-day period, as described in SB107, to identify the threshold when masks are
required in the school setting for an individual campus. Under these circumstances, where others
are required to implement the Test-To-Stay program requirement as a stopgap measure for
slowing COVID-19 transmission, this Order of Constraint uses the threshold to proactively
address a potential outbreak and slow the spread of COVID-19 within the identified campus of
concern. This approach will allow children to remain in school with minimal interruption to the
learning environment. As such, individual campuses may be able to avoid activating the Test-To-
Stay program given the effort to curb an outbreak at early onset.

Accordingly, the Threshold Trigger is met where 2% of the school population (inclusive of
students, faculty, and administrative staff), in each Elementary School, as determined by the
school district superintendent, test positive for COVID-19 over a 14-day period.

Based on the foregoing, the Health Officer and County Manager conclude that requiring
students, faculty, and administrative staff to wear Face-Coverings when the Threshold Trigger is
met for an in-person school setting under certain circumstances will help mitigate further
widespread transmission of COVID-19 in the early stages of a potential outbreak while keeping
the youngest students and their families safe and allowing in-person learning to continue.

THEREFORE, PURSUANT TO UTAH CODE §26A-1-114, BE IT HEREBY ORDERED

BY PHILIP BONDURANT, Dr. PH, MPH, SUMMIT COUNTY HEALTH OFFICER,
AND THOMAS C. FISHER, SUMMIT COUNTY MANAGER, AS FOLLOWS:

Section 1. Purpose. The intent of this Order of Constraint (the “Order”) is to establish a
standing Threshold Trigger, which when met, requires all students, faculty, and administrative
staff within an Elementary School in Summit County to wear a Face-Covering or Face-Shield

Page 6 of 9
while on the school’s campus. All provisions of this Order shall be interpreted to effectuate this
intent.

Section 2. Definitions.

2.1 “Face-Covering” is a physical barrier that:

i. covers the nose and mouth without openings that can be seen through;

ii. is made of synthetic or natural fabrics;

iii. secures under the chin;

iv. fits snugly against the nose and sides of the face; and

v. does not have an exhalation valve or vent.

2.2 “Face-Shield” means a face covering that:

i. covers the entire face;

ii. protects the eyes of the wearer;

iii. is made of clear plastic or similar nonpermeable transparent material;

iv. secures around the top of the head;

v. does not secure under the chin;

vi. does not fit snugly against the nose or sides of the face; and

vii. can be used in conjunction with a mask for enhanced protection.

Section 3. Face-Coverings and Face-Shields Mandatory. In the event that 2% of the

school population (inclusive of students, faculty, and administrative staff) on any Elementary
School campus have tested positive for COVID-19 during any 14-day period (the “Threshold
Trigger”), Face-Coverings or Face-Shields will be required for all students, faculty, and
administrative staff during the school day, including after school extra-curricular activities, at
that school’s campus until the incidents are lower than the Threshold Trigger as determined by
the Health Officer.

Section 4. Exemptions.

4.1 Notwithstanding any other provision of this Order, an individual required to wear
a Face-Covering or Face-Shield may remove such in the following situations:

4.1.1 while outdoors;

Page 7 of 9
 4.1.2 while actively eating or drinking, provided the individual remains in place
while eating or drinking;

4.1.3 while alone or only with other members of the same household in a room,
cubicle, school-provided transportation, or similar enclosure;

4.1.4 individuals who are hearing impaired, or communicating with an

individual who is hearing impaired, where the ability to see the mouth is
essential for communication;

4.1.5 while obtaining or providing a service that requires the temporary removal
of the Face-Covering, such as speech therapy services;

4.1.6 while actively performing as an athlete at a school-organized or -

sponsored athletic event;

4.1.7 while giving an educational, artistic, cultural, musical, or theatrical

presentation or performance at a school for an audience;

4.1.8 while exercising or engaging in athletic training while indoors and

maintaining at least six feet of physical distance from any other individual;

4.1.9 while performing a task which would create a risk to the individual related
to their work, as determined by local, state or federal regulators or
workplace safety guidelines;

4.1.10 while a student is napping; and

4.1.11 while swimming or on duty as a lifeguard.

4.2 Notwithstanding any other provision of this Order, the following individuals are
exempt from the Face-Covering and Face-Shield requirements:

4.2.1 an individual who is unconscious, incapacitated, or otherwise unable to

remove the Face-Covering or Face-Shield without assistance;

4.2.2 an individual with a medical condition, mental health condition, or

intellectual or developmental disability, that prevents the individual from
wearing a Face- Covering or Face Shield; and

4.2.3 an individual who has an Individualized Education Program (“IEP”)

under the Individuals with Disabilities Education Act, 20 U.S.C. § 1414,
or an accommodation under Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794, that would necessitate exempting the individual from
wearing a Face-Covering or Face-Shield.
Page 8 of 9
Section 5. Effective Date; Duration. This Order shall become effective on August 25, 2021
at 12:01 a.m., and will continue to be in effect until the termination of the Local Public Health
Emergency.

Section 6. Publication. This Order shall be on file for public inspection with the Summit
County Clerk and the Summit County Health Department.

Section 7. Enforcement. The Health Officer, in consultation with the Superintendents of

the North Summit School District, South Summit School District, and Park City School District,
shall ensure compliance with and enforce this Order. This Order is intended to protect public
health and not to hold individuals criminally liable. Discretion will be used in the citing and
prosecution of violations of this Order.

Section 8. Appeal. This Order may be appealed to the Third District Court in and for
Summit County, Utah.

ORDERED and APPROVED, and published, this 21 st day of August, 2021.

BY ORDER OF THE SUMMIT COUNTY MANAGER

___________________________________________
Thomas C. Fisher
Summit County Manager

BY ORDER OF THE SUMMIT COUNTY HEALTH OFFICER

__________________________
Philip Bondurant, Dr. PH, MPH
County Health Officer

APPROVED AS TO FORM:

____________________________________
Margaret H. Olson
Summit County Attorney

Page 9 of 9
EXHIBIT C
 PUBLIC HEALTH ORDER
NAVAJO DEPARTMENT OF HEALTH
NAVAJO OFFICE OF ENVIRONMENTAL HEALTH & PROTECTION PROGRAM

August 4, 2021

Public Health Emergency Order No. 2021-015

Clarifying the Mandate to Wear Masks in Public, Including Schools and Businesses,
Due to COVID-19

I. Paragraphs I – IX from Public Health Emergency Order No. 2020-004 are included in this
Public Health Order, addressing the various Navajo Nation (Nation) authorities related to
the current COVID-19 Public Health Emergency.

II. The intent and purpose of this Public Health Emergency Order No. 2021-015 is to prevent
community spread of COVID-19 on the Nation.

III. The Navajo Nation remains vigilant as neighboring states are experiencing an increase of
the Delta and other COVID variants. The Navajo Nation has documented cases
of COVID-19 Alpha (B.1.1.7), Gamma (P.1/P.1.1), Epsilon (B.1.427/429), and Delta
(B.1.617.2) within the Navajo Nation. According to the CDC, the Delta variant seem to
spread more easily and quickly than the other variants and now the dominant variant in
the US. As coronavirus vaccines continue to be made available on the Navajo Nation, all
preventative precautions should continue to be adhered to after receiving the vaccine.

IV. According to the Centers for Disease Control and Prevention, “Universal indoor masking
for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination
status” and “fully vaccinated people might choose to wear a mask in public indoor settings
regardless of level of transmission. Fully vaccinated people who become infected with the
Delta variant can transmit it to others.”

V. According to the World Health Organization, “the general public can wear a mask in
indoor or outdoor settings where physical distancing cannot be maintained” and
“vaccinated people to continue to wear a mask, especially in crowded and poorly
ventilated settings.”

THEREFORE, NOTICE IS GIVEN that, pursuant to the power and authority set forth in the NDOH
enabling legislation (NNC Resolution No. CO-50-14), and in conjunction with the Navajo Nation
Public Health State of Emergency Declaration (CEM Resolution No. 20-03-11):

A. All individuals on the Nation two (2) years of age and older shall wear masks while in
public, as those terms are defined herein, including schools and businesses.

Page 1 of 3
 B. Definitions:

1. Mask: a covering designed to filter one’s breathing through both the nose and
mouth. A mask must snugly cover the face around the nose and mouth to prevent
the wearer from breathing unfiltered air. May be a commercially-made face mask,
or a homemade cloth face covering such as those found on the Centers for Disease
Control and Prevention (CDC) website: https://www.cdc.gov/coronavirus/2019-
ncov/prevent-getting-sick/diy-cloth-face-coverings.html

2. Public: any area outside your home where you could come within 6 feet of
someone who is not from your household.

NOTICE IS FURTHER GIVEN that this Order shall not abrogate any disease-reporting requirements
(consistent with HIPAA privacy standards).

NOTICE IS FURTHER GIVEN that it is greatly advised that the public take the following preventive
precautions:
1. Avoid close contact with people who are sick.
2. Wash your hands often with soap and water for at least 20 seconds, especially after
blowing your nose, coughing, or sneezing, or having been in a public place. If soap and water are
not available, use a hand sanitizer that contains at least 60% alcohol.
3. To the extent possible, avoid touching high-touch surfaces in public places – elevator
buttons, door handles, handrails, etc.
4. Wear a mask and avoid touching your face, nose, eyes, etc.
5. Clean and disinfect your home and vehicles to remove germs: practice routine cleaning
of frequently touched surfaces (for example: tables, doorknobs, light switches, handles, desks,
toilets, faucets, sinks, steering wheels, door handles, gearshifts, and cell phones).
6. Refrain from gathering with individuals outside your household who are not yet
vaccinated.
7. Limit unnecessary travel.
8. Get influenza (flu) vaccination as soon as possible and when safe to do so, and in
accordance with the above recommendations.
9. All persons highly encouraged to get any COVID-19 vaccination as soon as possible and
when safe to do so, and in accordance with the above requirements.
NOTICE IS FURTHER GIVEN that this Order shall take effect Friday, August 6,2021 at 5:00 A.M.
MDT, and shall remain in effect until otherwise ended by a subsequent Public Health Emergency
Order.

Page 2 of 3
ADDITIONAL ADVISORIES AND ORDERS WILL FOLLOW AS CONDITIONS WARRANT. SO
ORDERED THIS 4th DAY OF AUGUST, 2021.

Page 3 of 3
EXHIBIT D
__________________________________________________________________________________
BOARD OF HEALTH
IN AND FOR SOUTHEAST UTAH HEALTH DEPARTMENT
(CARBON COUNTY, EMERY COUNTY, GRAND COUNTY), STATE OF UTAH
IN AND FOR GRAND COUNTY, UTAH
:
In the matter of: : PUBLIC
:
HEALTH ORDER
COVID-19 Pandemic within Utah :
:
Order No.: SEUHD 2021-01GC
:
:
Date: August 18, 2021
:
:
Legal Authority: Utah Code §26A-1-114
:
:
:
:

Utah Code § 26A-1-106(2) provides that “[r]egulations or standards relating to public health or
environmental health services adopted or established by a local health department may not be
less restrictive than [State Department of Health orders].”

SEUD permits the local health department to declare a public emergency and issue an order of
constraint after notice to the chief executive officer of the relevant county before issuing the
order of constraint.

COVID-19 is a contagion that spreads from person to person. The Health Officer for Southeast
Utah recognizes the need for the public to continue to work cooperatively and proactively to
slow the spread of COVID-19 and to address the myriad challenges that may arise due to
COVID-19. The Health Officer finds that this need is especially present in Grand County.

The Executive Director finds COVID-19 poses a continuing and immediate threat to the public
health of Grand County residents and visitors. The Delta variant of the COVID-19 virus is the
dominant strain actively circulating in Grand County and is more contagious than the original
virus and other variants. Grand County is now exceeding the thresholds set in March 2021 by the
Utah Legislature in House Bill 294, which terminated all public health orders related to
COVID-19 upon the occurrence of three events, only two of which remain relevant. From June
2020 through September 2020, there were a total of 3 pediatric cases of COVID-19 in Grand
County. During the school months from October 2020 through May 2021, Grand County
averaged 22 pediatric cases per month. From June 1, 2021 through August 17, 2021, there have
been 27 pediatric cases of COVID-19, with the school year beginning on August 19, 2021 and
the expectation that pediatric cases will increase at a rate that is proportional to last year.

Currently, Grand County is in a High Level of Transmission under criteria separately established
by the State of Utah and the Centers for Disease Control and Prevention (CDC). As of August

1 of 4
18, 2021, Grand County has an 8.5% positivity rate, and a case rate of 297 per 100,000
population. Statewide, Utah hospitals have an 82% total ICU utilization rate, with 28.9% ICU
COVID19 utilization. As such, Moab Regional hospital has had occasions where it has been very
difficult to find a bed for patients that need to be transported.

The Executive Director finds that COVID-19 presents a continuing threat to children who are not
eligible for vaccinations. According to a report by the American Academy of Pediatrics, as of
August 5, 2021, “nearly 4.3 million children have tested positive for COVID-19 since the onset
of the pandemic. Almost 94,000 cases were added the past week, a continuing substantial
increase. After declining in early summer, child cases have steadily increased since the beginning
of July.”

In Grand County, there are 1,396 children under 12 years of age who are not eligible for any
vaccination. Children under 12 represent 14% of Grand’s County's population. To reach herd
immunity with the Delta variant, experts estimate that 80% of the population in Grand County
would need to be fully vaccinated. Stated differently, 93% of people aged 12 and over in Grand
County would need to be fully vaccinated to reach herd immunity.

Under House Bill 1007, the Utah Legislature prohibited a Local Education Association (LEA),
an LEA governing board, the Utah Board of Education, the Utah State Superintendent of Public
Instruction, or a school from requiring the wearing of masks in schools. Although the Grand
County superintendent supports public health recommendations and orders, the school district
lacks the authority to require their students, faculty, or staff to wear masks.

School districts in other parts of the country that have already returned to school have seen a
dramatic increase in COVID-19 cases in school settings. Specifically, in Marion County,
Arkansas, 949 students and staff were quarantined during the first week of school because of a
COVID-19 outbreak in which 54 students and 11 staff members tested positive. Twenty-seven
children in Arkansas are currently hospitalized due to COVID-19, compared with 12 children
prior to the start of school. And in Louisiana, there have been 16,541 new cases of COVID-19
reported since August 6, 2021. Of those cases, 3,106 have been reported in children. Louisiana is
experiencing its highest 7- day average in the pandemic with 4,603 cases.

Multisystem Inflammatory Syndrome in Children (MIS-C) is a condition where different body

parts can become inflamed, including the heart, lungs, kidneys, brain, skin, eyes, or
gastrointestinal organs. While the causes of MIS-C are unknown, many children with MIS-C
were diagnosed with COVID-19 or had been around someone with COVID-19. MIS-C can be
serious, even deadly, and children diagnosed with it may suffer long-term effects.

Although the Southeast Utah Health Department continues its efforts to vaccinate all eligible
residents, no COVID-19 vaccine is yet approved for children under the age of 12. With the
spread of the COVID-19 Delta variant and case rates rapidly increasing, Grand County is at a
critical juncture in this pandemic. Accordingly, and based on the foregoing, the Executive
Director concludes that requiring students to wear masks in the school setting will help mitigate
further widespread transmission of COVID-19 and keep these students and their families safe.

2 of 4
Furthermore, the Executive Director has met the obligation under Utah Code § 26A-1-114(7) by
providing 24-hour notice to the Chair of the Grand County Commission of his intent to issue this
Public Health Order of Constraint.

THEREFORE, PURSUANT TO UTAH CODE § 26A-1-114, BE IT HEREBY ORDERED

BY BRADON BRADFORD, EXECUTIVE DIRECTOR OF THE SOUTHEAST UTAH
HEALTH DEPARTMENT, AS FOLLOWS:

Section 1. The intent of this Public Health Order of Constraint is to ensure a coordinated
implementation of practices to slow the transmission of COVID-19 amongst children not yet
eligible for a COVID-19 vaccine by providing Grand County residents and schools with access
to information needed to implement those practices.

Section 2. Face Coverings Mandatory in Schools. All students attending kindergarten through
grade 6 at a public, charter, or private school in Grand County, shall be required to wear a face
covering that completely covers the nose and mouth when in any indoor area of the premises, on
school-provided transportation, or attending an indoor school-sponsored activity, subject to the
exceptions below.

Section 3. General Face Covering Exceptions.

A. Notwithstanding any other provision of this Order, an individual required to wear a

face covering may remove the face covering in the following situations:

1. while outdoors;

2. while actively eating or drinking, provided the individual remains in place

while eating or drinking;

3. while alone or only with other members of the same household in a room,
cubicle, school-provided transportation, or similar enclosure;

4. when communicating with an individual who is deaf or hard of hearing if:

a. communication cannot be achieved through other means; and

b. the speaker wears a face shield or uses alternative protection such as a

plexiglass barrier;

5. while obtaining or providing a service that requires the temporary removal of

the face covering, such as speech therapy services;

6. while actively performing as an athlete at a school-organized or -sponsored

athletic event;

3 of 4
 7. while giving an educational, artistic, cultural, musical, or theatrical presentation
or performance at a school for an audience;

8. while exercising or engaging in athletic training while indoors and maintaining

at least six feet of physical distance from any other individual;

B. Notwithstanding any other provision of this Order, the following individuals are
exempt from the face covering requirements:

1. an individual who is unconscious, incapacitated, or otherwise unable to remove

the face covering without assistance;

2. an individual with a medical condition, mental health condition, or intellectual

or developmental disability, that prevents the individual from wearing a face
covering; and

3. an individual who has an Individualized Education Program (IEP) under the

Individuals with Disabilities Education Act, 20 U.S.C. § 1414, or an
accommodation under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794, that would necessitate exempting the individual from wearing a face
covering.

Section 4. This Public Health Order takes effect at 7:00 a.m. on August 19, 2021 and will remain
in effect until 7:00 a.m. on September 18, 2021 unless extended, rescinded, superseded, or
amended in writing, or otherwise as warranted.

BY ORDER OF THE EXECUTIVE DIRECTOR OF THE SOUTHEAST UTAH HEALTH

DEPARTMENT.

__________________________________
Bradon C. Bradford, MSPH, MPA, REHS
Executive Director/Health Officer
Southeast Utah Health Department

APPROVED AS TO FORM:

_______________________________
Christian Bryner
Southeast Utah Health Department Attorney

Date: August 18, 2021

4 of 4
EXHIBIT E
 IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT
IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

ERIC AND TORI BERGSTROM;

RULING & ORDER DENYING
CHRISTINE AND CRAIG PLAINTIFFS’ MOTION FOR
DEMORDAUNT; NICOLE AND JASON PRELIMINARY INJUNCTION
KIRCHNER; JEFF MORTENSEN;
KODY POWELL; STARR AND
MICHAEL SMITH; and RAINA
Case No. 200907643
WILLIAMS, individuals,
January 27, 2021
Plaintiffs,
Judge Adam T. Mow
vs.

STATE OF UTAH; GOVERNOR GARY

HERBERT, in his official capacity; THE
UTAH STATE BOARD OF
EDUCATION; THE SALT LAKE CITY
SCHOOL BOARD; and LARRY
MADDEN, in his official capacity as
superintendent of the Salt Lake City School
District,

Defendants.

Before the Court is Plaintiffs Eric and Tony Bergstrom, et al.’s (collectively “Plaintiffs”)

Motion for Preliminary Injunction (the “Motion”). Plaintiffs filed the Motion with exhibits “A”

through “M” on or about December 17, 2020. Defendants the Salt Lake City School Board (the

“Board”) and Larry Madden (collectively, the “District Defendants”) filed a Memorandum in

Opposition to the Motion with exhibits “A” through “L” on or about January 12, 2021.

Defendant Utah State Board of Education (“USBE”) filed a Memorandum in Opposition to the

Motion on or about January 12, 2021. Defendants State of Utah and (now former) Governor

Gary Herbert (collectively, the “State Defendants”) filed a Memorandum in Opposition to the

Motion on or about January 12, 2021. Plaintiffs filed a Reply Memoranda in Response to the

District Defendants’ Opposition Memorandum with exhibits “1” and “2” on or about January 15,

2021. Plaintiffs filed a Reply Memorandum in Response to the USBE’s Opposition

 Case No. 200907643

Memorandum with exhibit “A” on or about January 15, 2021. Plaintiffs filed a Reply

Memorandum in Response to the State Defendants on or about January 15, 2021. The Motion is

therefore fully briefed and ready for decision.

The Court subsequently held an evidentiary hearing in this matter on January 19, 2021, at

which hearing Plaintiffs were represented by Ryan Bell and Christopher Snow, the District

Defendants were represented by Kyle Kaiser, Diana Bradley, and Rachel Terry, USBE was

represented by J. Bryan Quesenberry and Michelle Beus, and the State Defendants were

represented by David Wolf and Andrew Dymek. At the hearing, Plaintiffs proffered testimony

from the following individuals: Christine DeMordaunt, Raina Williams, Salli Fiefia, Kody

Powell, Tori Bergstrom, Jeff Mortensen, Nicole Kirchner, Elizabeth Florence, Molly Pearce, and

Letizia Kailiola Wolfgramm; and called the following individuals as witnesses at the hearing:

Melissa Ford, Larry Madden, Mary Catherine Perry, Starr Smith, and minor child E.F. The

District Defendants called Melissa Ford and Larry Madden as witnesses. USBE proffered

testimony from Aaron Brough. At the hearing, the Court received into evidence all of Plaintiffs’

exhibits 1 through 47 except exhibits 37, 38, 41, and 47. The Court also received into evidence

all of the District Defendants’ exhibits A through L. The Court then heard oral argument on the

Motion. Following the hearing, the Court took the matter under advisement.1

The Court again thanks all counsel for their professionalism and advocacy. The hearing

on January 19, 2021, held via Webex, ran smoothly due in large part to the efforts of counsel to

streamline the presentation of evidence. The Court finds that the Webex hearing allowed each

1
The Court also permitted the District Defendants to provide a brief update to the Court regarding the outcome of
the January 19, 2021, Board meeting. The District Defendants filed such a Statement in accordance on or about
January 20, 2021. Plaintiffs filed a Response to the Statement with exhibits “A” through “C” on or about January 20,
2021. Plaintiffs filed a Supplemental Response to the Statement on or about January 26, 2021.
2
 Case No. 200907643

party sufficient opportunity to present evidence and make argument. Conducting the hearing via

Webex did not prejudice any party.

The Court, having fully reviewed the briefing on the matter, having considered the

evidence and argument of counsel presented at the January 19, 2021, hearing, having made

credibility determinations, and having now been fully informed, rules and orders as follows.

FINDINGS OF FACT2

A. Salt Lake City School District (“SLCSD”)

1. SLCSD is one of the largest school districts in Utah. Its district boundaries are the same

as the municipal boundaries of Salt Lake City.3 Over 20,000 students attend 41 schools within

SLCSD.4

2. The Plaintiffs are the parents of approximately 24 students enrolled in SLCSD.5

3. SLCSD has traditionally taught its students through in-person instruction.6

B. Early Response to COVID-19

4. COVID-19 is a highly infectious disease that, as of January 22, 2021, has infected over

24 million Americans and killed 404,689 of them. During that same period, 330,469 Utahns have

been infected with COVID-19 and it has killed 1,547 Utahns.7

5. To reduce transmission rates of COVID-19 in Utah, Governor Gary Herbert ordered that

all public K-12 schools in Utah physically close beginning on March 16, 2020. That order was

eventually extended through the end of the 2019-2020 school year.8

2
These factual findings are only for purposes of analyzing Plaintiffs’ motion for a preliminary injunction. To the
extent any evidence in the record conflicts with a factual finding, the Court has weighed the competing evidence and
found that the greater weight of the evidence weighs in favor of the Court’s finding.
3
Ford Test.
4
Id.
5
Pls.’ Hr’g Exs. 1, 2, 4, 5, 6, 7, 8.
6
Madden Test.
7
District Defs.’ Mem. in Opp’n to the Mot. Exs. D, E, Jan. 12, 2021.
8
Id. Ex. A, at 2-3.
3
 Case No. 200907643

6. Following the Governor’s order, SLCSD immediately began implementing a plan to

provide remote learning opportunities to its students.9

C. State and USBE Actions During Summer 2020

7. In July 2020, Governor Herbert modified Utah’s recovery plan to allow all primary and

secondary schools to reopen for the 2020-2021 academic year.10

8. On August 6, 2020, the USBE created a 12-page set of requirements and

recommendations for schools to reopen called Planning Requirements and Recommendations for

K-12 School Reopening.11

9. Among other things, the Planning Requirements and Recommendations for K-12 School

Reopening provided a set of “Plan Requirements” that require school districts “to develop

comprehensive reopening plans that are approved by the local school board.”12

10. USBE required school district reopening plans to address, among other things,

“Repopulating Schools.” However, USBE did not mandate that all schools provide an option for

in-person instruction.13

11. USBE also provided tables in the addendum that “articulate minimum requirements that

plans developed by LEAs must address. Requirements were determined to be in the best interest

of Utah’s students and faculty to create consistent, state-wide standard of expectation.”14

12. USBE has passed no rule or regulation closing schools in the State of Utah.

13. During summer 2020, with the exclusion of SLCSD, all of the other 41 school districts in

Utah announced plans that would allow students to return to school in-person at some level.15

9
Id.
10
Pls.’ Hr’g Ex. 32.
11
Pls.’ Hr’g Ex. 33.
12
Id. at 1.
13
Id.
14
Id.
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D. SLCSD’s Restart Plan and Subsequent Developments

14. Over the summer of 2020, because it was unclear if SLCSD would be able to reopen to

in-person learning in the fall of 2020, SLCSD began developing plans for remote learning and

blended learning options.16

15. In a July 30, 2020, meeting, the Board approved a Restart Plan. Under this plan, the

Board officially adopted a set of metrics that would govern its decision on when to return to in-

person school.17

16. Specifically, the Board determined that in-person learning would not resume until the

positive proportion of all COVID-19 tests taken in Salt Lake County for a given week fell to a

threshold of 5% or below, and the number of infected persons within the county fell to 10 per

100,000 individuals.18

17. When these standards were announced, Utah’s positivity rate was double the target

metric—more than 10%. The positivity rate in Salt Lake County was approximately the same.19

18. The positivity rate and the number of infected persons within Salt Lake County continued

to rise following the adoption of the Restart Plan.20

19. As part of its Restart Plan, SLCSD developed an Enriched Virtual model as a framework

for the 2020-2021 school year in conformance with USBE’s Planning Requirements and

Recommendations for K-12 School Reopening. In this model, classes have face-to-face learning

sessions with their teacher. The face-to-face sessions can be in-person or online using a

communication tool such as Zoom. The plan also provides opportunities for small group

15
Pls.’ Hr’g Ex. 42, at 2.
16
District Defs.’ Mem. in Opp’n to the Mot. Ex. A, at 3.
17
Pls.’ Hr’g Ex. 24, at 1.
18
Ford Test.
19
District Defs.’ Mem. in Opp’n to the Mot. Ex. E.
20
Id.
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 Case No. 200907643

instruction, both remote and in-person, one day per week and limited in-person learning for

special education.21

20. In developing its Restart Plan, the Board examined data from the Salt Lake County

Health Department, information on student performance, surveys of parents in SLCSD, public

comment, teacher surveys, and CDC data and guidance related to COVID-19.22

21. The Board further balanced the potential harm to students from COVID-19 with concerns

regarding difficulties associated with online instruction. The Board also considered concerns

regarding consistency in instruction, seeking to avoid an approach that risked ping-ponging

students between in-person and remote instruction.23

22. In August, just before the beginning of the 2020-2021 school year, SLCSD provided

professional development and training for its teachers to assist them in using newly adopted

software and creating remote learning courses. SLCSD also provided small group meetings for

students to ensure they were prepared for a remote learning environment.24

23. SLCSD provided laptops and internet for all students in need, streamlined coursework

and other interactions on electronic platforms, and purchased additional online resources.25

24. SLCSD opened on September 14, 2020, with all teachers and students in a remote

setting.26

25. Students regularly transfer between school districts in the State of Utah. During the 2020-

2021 school year, 1,230 students from SLCSD have taken advantage of the open enrollment

option and transferred to neighboring districts.27

21
Id. Ex. A, at 4-5.
22
Id. at 12-13; see also Ford Test.
23
Ford Test.
24
District Defs.’ Mem. in Opp’n to the Mot. Ex. A, at 7.
25
Id. at 5.
26
Id. at 7.
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26. Two of Plaintiffs’ witnesses, Ms. Perry and Ms. Starr, called between 10 and 15 schools

in Granite School District only and were told that those schools were at capacity and would not

accept student transfers.28

27. Another of Plaintiffs’ witnesses, Elizabeth Florence, has transferred her four school-aged

children to a charter school outside SLCSD—one prior to and the other three during the 2020-

2021 school year.29

28. At least one of Plaintiffs’ children will not transfer schools because of athletic eligibility

concerns.30

29. SLCSD surveyed parents of its students in September 2020—approximately three weeks

after remote learning began. In this survey, 77.2% of responding parents indicated that remote

learning was manageable. 70% of responding parents indicated that remote learning was working

either extremely well, very well, or moderately well.31

30. Parent comments made it clear that they saw a difference in the way teachers were

prepared and that teaching and learning overall were different and better in the fall than in the

spring, when according to a study SLCSD conducted in May 2020, only 55.7% of responding

elementary school parents and 44.9% of parents secondary school students agreed that their

student had a positive experience with remote learning.32

31. Students in SLCSD are performing near State averages, and reading inventory data shows

that students in grades 5-12 have largely improved over the 2019-2020 school year.33

27
USBE Mem. in Opp’n to the Mot. Ex. A, at 3, Jan. 12, 2021.
28
Perry Test.; Starr Test.
29
Pls.’ Hr’g Ex. 10, at 4-5.
30
Pls.’ Hr’g Ex. 5.
31
District Defs.’ Mem. in Opp’n to the Mot. Ex. A, at 10.
32
Id. at 3-4.
33
Id. at 10-11.
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 Case No. 200907643

32. However, many students in SLCSD, including Plaintiffs’ children, have struggled both

academically and emotionally with distance learning.34

33. 4,000 secondary school students in SLCSD received at least one F grade or incomplete in

the first quarter of the 2020-2021 school year, an increase of 1,500 over the previous year.35

34. 364 secondary school students in SLCSD failed every one of their first-quarter classes, an

increase of 600% over the previous year.36

35. The number of students in SLCSD who failed every class in Term 1 is up over the 2019-

2020 school year (3.31% compared to .46%). Notwithstanding this figure, several schools in

SLCSD have improved failure rates.37

36. The schools that experienced the highest increase in failure rates have adjusted their

practices to improve student attendance and engagement in Term 2.38

37. Throughout early November, the Board remained committed to its Restart Plan metrics.39

38. At no point did the State or USBE inform the District Defendants that the Restart Plan

did not comply with the Planning Requirements and Recommendations for K-12 School

Reopening USBE established.40

39. In October, the District Defendants began to review data indicating very young children

(ages 0 to 9) appeared to have a lower probability of contracting COVID-19. Based on

transmission rates disaggregated by age as well as conversations with Department of Health

34
See Pls.’ Hr’g Exs. 1-8, 10-12; Perry Test.; Smith Test.; E.F. Test.
35
See Pls. Hr’g Ex. 44.
36
Id.
37
District Defs.’ Mem. in Opp’n to the Mot. Ex. A, at 11.
38
Id.
39
Pls.’ Hr’g Ex. 26, at 4.
40
Madden Test.
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 Case No. 200907643

officials and other public health experts, the District Defendants developed a plan to provide

elementary students with an option to return to in-person learning.41

40. At a November 17, 2020, meeting, the Board voted to adopt a phased reopening for

elementary students, with Pre K-1st grade offered the opportunity to return the week of January

25, 2021, 2nd and 3rd grade offered the opportunity to return the week of February 1, 2021, and

4th-6th grade offered the opportunity to return the week of February 8, 2021.42

41. At the November 17, 2020, meeting, the Board did not consider any proposed plan to

provide students in middle or high school with in-person instruction.43 This decision was based

on concerns regarding the higher risk of infection among middle and high school students.44

42. In December 2020, the Board was informed that vaccines for COVID-19 would be made

available to SLCSD’s teachers beginning in early January 2021.45

43. The Board determined that administration of the vaccine would ameliorate the risk of

contracting COVID-19, as well as the resultant disruption in instruction. The District Defendants

thus began developing a restart plan for secondary schools based on the availability of the

vaccine to teachers in SLCSD.46

44. Superintendent Madden proposed a Vaccine Based Secondary Restart Plan to the Board

on January 5, 2021. The proposal suggested that SLCSD offer secondary school students in-

person learning opportunities one week after all SLCSD employees have the opportunity to

receive a second dose of the COVID-19 vaccine.47

41
District Defs.’ Mem. in Opp’n to the Mot. Ex. A, at 16-17.
42
Pls.’ Hr’g Ex. 27, at 4-5.
43
See id.
44
Madden Test.
45
District Defs.’ Mem. in Opp’n to the Mot. Ex. A, at 20.
46
Id.
47
Id.
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45. After considering the restart proposal, and input from constituents and stakeholders, the

Board approved a motion to tie the reopening of secondary schools to the vaccine timeline

Superintendent Madden proposed.48

46. On January 9, 2021, the District Defendants were informed that approximately 800 doses

of the Moderna vaccine would be made available to SLCSD employees beginning the week of

January 11, 2020. This would allow for approximately 25% of SLCSD employees to receive the

first dose of the vaccine, assuming all employees choose to be vaccinated.49

47. Superintendent Madden testified that approximately 300 doses of the vaccine had been

made available to SLCSD employees during the week of January 18, 2021. The District

Defendants were also informed that, going forward, an estimated 300 additional doses would be

made available to SLCSD employees each week.50

48. Having tied the reopening of secondary schools to the administration of the COVID-19

vaccine to SLCSD employees, the Board did not set a date certain when in-person instruction

would be made available to secondary school students.51

49. On January 19, 2021, the Board voted to approve an in-person option for secondary

school students that Superintendent Madden proposed.52

50. The secondary in-person option the Board approved will begin on February 8, 2021, and

allows secondary school students to opt to attend classes in-person two days per week (either

Monday and Thursday or Tuesday and Friday, with days assigned alphabetically).53

48
Id. Ex. B, at 5.
49
Id. Ex. A, at 21.
50
Madden Test.
51
Id.
52
See Statement Regarding Approval of an In-Person Option for Secondary Sch. Students 2, Jan. 20, 2021.
53
Id. Following the January 19, 2021, hearing, Plaintiffs raised concerns regarding the specifics of this in-person
option. However, the exact details of this option are not critical to the Court’s analysis.
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 Case No. 200907643

DISCUSSION

A preliminary injunction may only issue if the Plaintiffs show: (1) Plaintiffs will suffer

irreparable harm unless the order or injunction issues; (2) the threatened injury to Plaintiffs

outweighs the damage the proposed injunction may cause Defendants; (3) the injunction would

not be adverse to the public interest; and (4) there is a substantial likelihood that Plaintiffs will

prevail on the merits of their underlying claims, or the case presents serious issues on the merits

which should be the subject of further litigation.54 “[I]n order to secure injunctive relief, the

moving party must show sufficient of the foregoing grounds to convince the trial court to

exercise its discretion in favor of issuing the injunction.”55 In interpreting the grounds for

injunctive relief set forth in rule 65A, the Court may properly turn to federal case law on the

matter.56 Federal courts have clarified:

Because the limited purpose of a preliminary injunction is merely

to preserve the relative positions of the parties until a trial on the
merits can be held, [] the following three types of [] preliminary
injunctions [are] . . . specifically disfavored . . . (1) preliminary
injunctions that alter the status quo; (2) mandatory preliminary
injunctions; and (3) preliminary injunctions that afford the movant
all the relief that it could recover at the conclusion of a trial on the
merits.57

“Because [such] preliminary injunctions are disfavored, before a district court may grant such

relief, the movant must make a heightened showing of the [rule 65A] factors.”58 Thus, “a party

seeking such an injunction must make a strong showing both with regard to the likelihood of

success on the merits and with regard to the balance of harms.”59

54
UTAH R. CIV. P. 65A(e)(1)-(4).
55
Sys. Concepts, Inc. v. Dixon, 669 P.2d 421, 425 (Utah 1983).
56
See UTAH R. CIV. P. 65A advisory committee notes (providing that “the substantial body of federal case authority
in this area should assist the Utah courts in developing the law under paragraph (e)”).
57
Schrier v. Univ. of Colo., 427 F.3d 1253, 1258-59 (10th Cir. 2005).
58
Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009).
59
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004).
11
 Case No. 200907643

The injunctive relief Plaintiffs seek would alter the status quo and would be mandatory—

it would require the District Defendants, USBE, and/or the State to take action rather than to

simply forego some conduct. Accordingly, Plaintiffs must make a heightened showing of the rule

65A factors, particularly the likelihood of success on the merits and the balance of harms.60

A. The Plaintiffs Have Not Shown Irreparable Harm Because No Violation of the Utah
Constitution Has Occurred.

“[I]rreparable harm is generally considered the most important . . . ground for injunctive

relief.”61 “[T]he irreparable harm justifying a preliminary injunction includes wrongs of a

repeated and continuing character, or which occasion damages that are estimated only by

conjecture, and not by any accurate standard.”62 It requires “the moving party [to] show that the

commission or continuance of some act during the litigation would produce great or irreparable

injury.”63 In Elrod v. Burns, the United States Supreme Court stated that “[t]he loss of

[constitutional rights], for even minimal periods of time, unquestionably constitutes irreparable

injury.”64 Nevertheless, in interpreting the Elrod decision, federal courts have reasoned that “it is

necessary [] to consider the specific character of the [] claim” and have further determined that a

minimal restriction on constitutional rights in furtherance of an asserted governmental interest

may weigh against a presumption that the restriction constitutes an irreparable injury.65

Plaintiffs assert that constitutional violations of Article X, Section 1 of the Utah

Constitution and the Uniform Operation of Laws clause of the Utah Constitution constitute

irreparable harm sufficient for entry of a preliminary injunction. The Court analyzes these

arguments in turn.

60
See id.
61
Dixon, 669 P.2d at 427.
62
Hunsaker v. Kersh, 1999 UT 106, ¶9, 991 P.2d 67.
63
Dixon, 669 P.2d at 427.
64
Elrod v. Burns, 427 U.S. 347, 373 (1976).
65
See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003).
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 Case No. 200907643

1. There is no violation of Article X, Section 1 of the Utah Constitution.

Plaintiffs first assert that the District Defendants’ failure to provide an option for in-

person instruction to secondary school students in SLCSD violates Article X of the Utah

Constitution. 66 Article X provides “[t]he Legislature shall provide for the establishment and

maintenance of the state’s education systems including: (a) a public education system, which

shall be open to all children of the state.”67 In Logan City School Board v. Kowallis, the Utah

Supreme Court interpreted this provision:

The requirement that schools must be open to all children of the

state is a prohibition against any law or rule which would separate
or divide the children of the state into classes or groups, and grant,
allow, or provide one group or class educational privileges or
advantages denied another. No child of school age, resident within
the state, can be lawfully denied admission to the schools of the
state because of race, color, location, religion, politics, or any other
bar or barrier which may be set up which would deny to such child
equality of educational opportunities or facilities with all other
children of the state. This is a direction to the Legislature to
provide a system of public schools to which all children of the state
may be admitted. . . . The schools are open to all children of the
state when there are no restrictions on any child, children, or group
of children which do not apply to all children in the state alike.68

However, the Kowallis court further reasoned “there is no requirement that every school building

shall be open to every school child in the state. The provision is that the system of public schools

shall be open to all children of the state.”69

In the later decision of Starkey v. Board of Education of Davis County School District,

the Utah Supreme Court clarified that Article X, Section 1 of the Utah Constitution “is satisfied

66
The District Defendants and USBE both argue that Plaintiffs’ delay in filing the present action precludes a finding
of irreparable harm. However, Plaintiffs assert that they received repeated assurances during the relevant period that
the District would offer an in-person option sometime during the 2020-2021 school year. Accordingly, Plaintiffs’
delay in filing the present action does not preclude a finding of irreparable harm.
67
UTAH CONST. art. X, §1.
68
Logan City Sch. Dist. v. Kowallis, 77 P.2d 348, 350-51 (Utah 1938).
69
Id. at 351 (emphasis added).
13
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where the regular curriculum of the school is open to all eligible children.”70 And, as the Utah

Supreme Court stated in Allen v. Board of Education of Weber County School District,

the decision as to what is best for the school children of the district
is left to the decision of the [county school district] Board of
Education by the Legislature of the State of Utah . . . and it is not
incumbent upon that board to convince the court as to the wisdom,
expediency or the advantage to be gained by such decision.71

This is especially true in cases involving public health crises, where, during times of pandemic, a

child may properly be excluded from the public school system entirely if it is determined that

such exclusion is necessary to combat the spread of disease.72

While the Court is sympathetic to the many difficulties Plaintiffs’ children face in trying

to navigate both the current pandemic and the issues with distance learning SLCSD offers,

Plaintiffs’ children have been afforded the access to education guaranteed to them in Article X,

Section 1 of the Utah Constitution. As Starkey and Kowallis clarify, the Utah Constitution

guarantees children access to the curriculum of the school, not access to their chosen modality of

instruction.73 Plaintiffs’ children are being offered access to curriculum appropriate to their age

and development level through the online instruction SLCSD offers.74 They have not faced a

restriction on their access to that curriculum that is not placed on other students in the State. As

no violation of Article X, Section 1 of the Utah Constitution has occurred, the Court need not

apply strict scrutiny or any other standard of review.

Additionally, while Plaintiffs have offered evidence of academic issues in SLCSD,

Plaintiffs have failed to adequately establish that such issues are unique to SLCSD. Indeed, while

70
Starkey v. Bd. of Educ. of Davis Cty. Sch. Dist., 381 P.2d 718, 720 (Utah 1963).
71
Allen v. Bd. of Educ. of Weber Cty. Sch. Dist., 236 P.2d 756, 758-59 (Utah 1951).
72
See State v. Bd. of Educ. of Salt Lake City, 60 P. 1013, 1017 (Utah 1900).
73
See Starkey, 381 P.2d at 720; Kowallis, 77 P.2d at 351.
74
The Court recognizes that, even prior to January 25, 2021, SLCSD had some limited in-person instruction along
with the online instruction. However, the Court’s analysis focuses on the online instruction in the context of
Plaintiffs’ constitutional claims.
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 Case No. 200907643

Plaintiffs point to failure rates in SLCSD increasing in the 2020-2021 school year, they fail to

show any credible evidence regarding whether those rates differ from failure rates in the other 41

school districts in the Utah. Thus, the Court is left to speculate whether the online-only

instruction SLCSD offered—rather than other stresses attendant to life during a pandemic—have

caused the increase in failure rates in SLCSD.

Further, Plaintiffs have the ability to transfer their children to schools in other districts or

charter schools if they disagree with SLCSD’s Restart Plan, as evidenced by the 1,230 students

from SLCSD who have already availed themselves of such opportunity during the 2020-2021

school year. Anecdotal evidence that some schools within Granite School District do not have

capacity for student transfers does not equate to a complete inability to transfer to another school

district or charter school. And prioritizing a child’s athletic eligibility over transferring that child

to a school with in-person instruction further undermines at least one Plaintiff’s argument of

irreparable harm.

The Board recently approved a reopening plan that includes an option for in-person

instruction for all K-12 students in SLCSD two days per week. Prior to the Board’s approval of

this new plan, Plaintiffs argued that even this limited in-person instruction is insufficient when

compared to other school districts with more regular in-person instruction. But as there is not a

constitutional violation with SLCSD’s online instruction, so too is there no violation with a

limited in-person option. Accordingly, the Board’s decision to proceed with an online-only

instruction model during the COVID-19 pandemic—and their subsequent adoption of a limited

in-person instruction plan for all K-12 students beginning February 8, 2021—complied with

Article X, Section 1 of the Utah Constitution.

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 Case No. 200907643

Plaintiffs also argue that USBE, and in turn, the State Defendants, should act pursuant to

Utah Code section 53E-3-501 to ensure compliance with USBE’s Planning Requirements and

Recommendations for K-12 School Reopening. Section 53E-3-501 requires USBE to “determine

if [] the minimum standards have been met” and to “allow [an] LEA to cure [a] defect through an

adjustment.”75 But, as noted above, SLCSD’s Restart Plan complied with the Planning

Requirements and Recommendations for K-12 School Reopening. So there was no action

required of either USBE or the State Defendants under section 53E-3-501. Therefore, USBE’s

and the State Defendants’ decision to permit the approach outlined in SLCSD’s Restart Plan

during the COVID-19 pandemic complied with Article X, Section 1 of the Utah Constitution.

Having determined the Defendants complied with their obligations under the Utah

Constitution, the Court determines that, even were it to find the academic and emotional

difficulties Plaintiffs’ children have experienced are attributable to the online-only model the

Board adopted, the Board’s adherence to such model is not a “wrong[] of a repeated and

continuing character,” as required for a finding of irreparable harm.76 As discussed above,

Plaintiffs’ children are not entitled to a specific modality of education—they are instead entitled

to access the curriculum. Defendants have provided Plaintiffs’ children such access through

online instruction, which is what Article X, Section 1 of the Utah Constitution requires.77

Accordingly, the emotional and academic struggles Plaintiffs detailed in support of their Motion

do not constitute irreparable harm Defendants caused, as required for the issuance of an

injunction under rule 65A.

75
Utah Code Ann. § 53E-3-501(2)(a), (5)(c).
76
Hunsaker, 1999 UT 106, at ¶9, 991 P.2d 67 (emphasis added).
77
See Starkey, 381 P.2d at 720; Kowallis, 77 P.2d at 351.
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2. There is no violation of the Uniform Operation of Laws clause of the Utah

Constitution.

Plaintiffs next argue that the online-only model the Board adopted violates the Uniform

Operation of Laws clause of the Utah Constitution, which provides “[a]ll laws of a general nature

shall have uniform operation.”78 “In order for a law to be constitutional under the uniform

operation of laws provision, it is not enough that it be uniform on its face. What is critical is that

the operation of the law be uniform.”79 “A law does not operate uniformly if persons similarly

situated are not treated similarly or if persons in different circumstances are treated as if their

circumstances were the same.”80 In making this determination, unless a constitutional right has

been implicated, “a low threshold applies in balancing (1) whether the classification is

reasonable, (2) whether the legislative objectives are legitimate, and (3) whether there is a

reasonable relationship between the two.”81 “In the absence of either a classification or disparate

treatment of similarly situated persons, the Uniform Operation of Laws clause is not

implicated—there is no further scrutiny.”82

Plaintiffs urge the Court to analyze their claim based on the opportunity for instruction

offered in SLCSD compared to that offered in other districts in the State. However, this is not the

proper inquiry. The proper inquiry is whether all students in the State are being offered access to

the curriculum through a method determined by the democratically elected school board of the

district in which they reside. Plaintiffs’ children are treated similarly to other public school

students in Utah—all students have been provided access to the curriculum through a method

78
UTAH CONST. art. I, §24.
79
Gallivan v. Walker, 2002 UT 89, ¶37, 54 P.3d 1069.
80
Id.
81
Peterson v. Coca-Cola USA, 2002 UT 42, ¶23, 48 P.3d 941.
82
Count My Vote, Inc. v. Cox, 2019 UT 60, ¶30, 452 P.3d 1109.
17
 Case No. 200907643

their respective district school board established. Accordingly, the Uniform Operation of Laws

clause is not implicated and Plaintiffs have not established irreparable harm on that basis.

Whether under Article X, Section 1 of the Utah Constitution or under the Uniform

Operation of Laws clause of the Utah Constitution, Plaintiffs have failed to establish irreparable

harm as required for the entry of a preliminary injunction. This failure independently precludes

the relief Plaintiffs request. Nevertheless, the Court proceeds with its analysis of the remaining

grounds for a preliminary injunction under rule 65A.

B. The Balance of Harms Weighs Against Plaintiffs.

As discussed above, Plaintiffs have failed to demonstrate Defendants’ actions irreparably

harmed them. As such, there is no harm to Plaintiffs to weigh against the harm that Defendants

would suffer were the Court to grant Plaintiffs the requested injunction. By contrast, were the

Court to grant Plaintiffs the relief they seek, it would place a tremendous burden on the District

Defendants. They would have to again revisit their Restart Plan and immediately begin

preparations for in-person instruction at least three days per week—no small task for one of the

largest school districts in the state. The Board would lose its ability to make decisions at a local

level, supplanted by USBE and the State Defendants having final oversight and control. Both

secondary school students and SLCSD employees would face a greater risk of contracting

COVID-19 if they were to return to school more days per week, a risk which may be mitigated,

in part, by the administration of the COVID-19 vaccine to SLCSD employees. The Court

therefore finds that the balance of harms weighs against issuance of injunctive relief in this case.

18
 Case No. 200907643

C. The Public Interest Disfavors Substituting the Court’s Judgment for that of the Board.

“[I]t is always in the public interest to prevent the violation of a party’s constitutional

rights.”83 As noted above, Defendants’ actions did not violate Plaintiffs’ constitutional rights. By

contrast, were the Court to enter the injunction Plaintiffs request, it would violate the Utah

Constitution. Article X, Section 3 provides “[t]he general control and supervision of the public

education system shall be vested in a State Board of Education.”84 And, as previously quoted

from Allen, a local school district makes “the decision as to what is best for the school children

of the district,” without having “to convince the court as to the wisdom, expediency or the

advantage to be gained by such decision.”85

Were the Court to issue an injunction in this matter, it would effectively substitute the

Court’s determination regarding what is best for the children in SLCSD for that of the Board and

USBE. Such decision would violate the separation of powers in Article X, Section 3 of the Utah

Constitution and Allen’s guidance on judicial restraint.

A duly elected school board representing the residents of SLCSD made the Board’s

decision. While Plaintiffs have repeatedly urged the Board to alter its Restart Plan to allow in-

person instruction, there have been multiple individuals who expressed the opposite opinion

during Board meetings.86 Indeed, in a survey SLCSD conducted, and on which the Board’s

decision to continue with online-only instruction was (in part) based, 70% of responding parents

stated that online instruction was working extremely well, very well, or moderately well.87 Thus,

the Board acted in accordance with a majority view of its responding constituents. The Court is

unable to find that such decision is arbitrary.

83
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013).
84
UTAH CONST. art. X, §3.
85
Allen, 236 P.2d at 758-59.
86
See Pls. Hr’g Exs. 26-27.
87
District Defs.’ Mem. in Opp’n to the Mot. Ex. A, at 10.
19
 Case No. 200907643

By contrast, Plaintiffs represent approximately 24 students in SLCSD. They are a very

small percentage of the total SLCSD student body. Yet Plaintiffs ask this Court to order SLCSD

to provide in-person instruction not just for Plaintiffs’ children. And their requested preliminary

injunction would extend far beyond SLCSD’s 20,000+ students. Their request is for this Court to

order USBE to promulgate uniform standards governing all school districts in Utah, with USBE

having oversight and approval of local school district requests to suspend in-person learning.88

Were the Court to issue such a sweeping injunction in this matter, it would effectively

substitute the approach the Plaintiffs urge for what 42 school districts in the state—far beyond

SLCSD—have chosen to adopt. This would constitute an impermissible intrusion on the

authority granted to the Board and other school district boards under both the Utah Constitution

and other Utah law.89 Therefore, the public interest weighs against issuance of an injunction in

this matter.

D. Plaintiffs Have Not Shown a Likelihood of Success on the Merits or Serious Issues on the
Merits for Further Litigation.

Plaintiffs’ failure to establish a constitutional violation likely precludes their success on

the merits. Moreover, the Court finds that, to the extent serious issues on the merits which should

be the subject of further litigation remain in this case, they are insufficient to warrant issuance of

an injunction. First, the District Defendants have acted in compliance with the Utah Constitution

in providing Plaintiffs’ children access to the curriculum, as discussed above. Moreover, as to

USBE, USBE fulfilled its obligation under the Utah Code in creating the Planning Requirements

and Recommendations for K-12 School Reopening, which established “the minimum standards

governing . . . access to programs” in the Utah.90 And Plaintiffs have failed to establish that the

88
Pls. Mot. at 38-40.
89
See Allen, 236 P.2d at 758-59.
90
Utah Code Ann. § 53E-3-501(1)(b)(i).
20
 Case No. 200907643

Board’s approach violated USBE’s standards. So there is no basis to require USBE to ensure

compliance with its regulations pursuant to Utah Code section 53E-3-501. Finally, as Plaintiffs

have failed to sufficiently demonstrate a constitutional violation, it is unlikely that any serious

issue on the merits remains regarding any claim based on the State Defendants’ duty to “see that

the laws are faithfully executed.”91 For these reasons, the Court finds that the fourth ground for

injunctive relief weighs against entry of an injunction in this matter.

CONCLUSION

Reasonable minds can differ on whether in-person instruction, online instruction, or some

combination of them is best for the students of a particular school district in the midst of an

unprecedented and evolving pandemic. Under Utah law and USBE guidelines, elected local

district school boards have the authority to make that decision for their respective students.

Clearly, some students in SLCSD have struggled with online instruction, which has resulted in

academic, emotional, financial, and other issues. But this Court’s task is not to determine

whether the Board made the best decision or to substitute its judgment for that of the Board.

Rather, in the context of Plaintiffs’ motion for a preliminary injunction, this Court is tasked with

determining whether any of the Defendants have violated Plaintiffs’ constitutional rights, causing

irreparable harm to Plaintiffs. As discussed above, no constitutional violation has occurred.

For these reasons, Defendant’s Motion for Preliminary Injunction is DENIED. Plaintiffs

have failed to meet their heightened burden for a mandatory preliminary injunction that would

alter the status quo. That is, Plaintiffs have failed to establish (1) irreparable harm, (2) that the

balance of harms weighs in favor of injunctive relief, (3) that the injunctive relief is in the public

interest, and (4) that there is a substantial likelihood that they will prevail on the merits of the

91
UTAH CONST. art. 7, §5.
21
 Case No. 200907643

underlying claim, or that the case presents serious issues on the merits which should be the

subject of further litigation. The Court therefore declines to issue a preliminary injunction against

Defendants.

ting is necessary on this issue.

This is the order of the Court and no further writing

DATED January 27, 2021.

ADAM
A AM T. MOW
AD
District Court Judge

22
EXHIBIT F
9/22/21, 12:19 PM Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2 | CDC

COVID-19

Science Brief: Community Use of Cloth Masks to Control

the Spread of SARS-CoV-2
Updated May 7, 2021 Print

Summary of Recent Changes

- Last updated May 7, 2021


• Data were added from studies published since the last update that further demonstrate that mask wearing
reduces new infections.

• Data were added that demonstrate the importance of mask fit to improve performance and reduce community
exposure to SARS-CoV-2.

• A section was added on the health effects of mask wearing.

Background
SARS-CoV-2 infection is transmitted predominately by inhalation of respiratory droplets generated when people cough,
sneeze, sing, talk, or breathe. CDC recommends community use of masks, specifically non-valved multi-layer cloth masks, to
prevent transmission of SARS-CoV-2. Masks are primarily intended to reduce the emission of virus-laden droplets (“source
control”), which is especially relevant for asymptomatic or presymptomatic infected wearers who feel well and may be
unaware of their infectiousness to others, and who are estimated to account for more than 50% of transmissions.1,2  Masks
also help reduce inhalation of these droplets by the wearer (“filtration for wearer protection”). The community benefit of
masking for SARS-CoV-2 control is due to the combination of these effects; individual prevention benefit increases with
increasing numbers of people using masks consistently and correctly.

Source Control to Block Exhaled Virus

Multi-layer cloth masks block release of exhaled respiratory particles into the environment,3-6 along with the microorganisms
these particles carry.7,8  Cloth masks not only effectively block most large droplets (i.e., 20-30 microns and larger)9 but they
can also block the exhalation of fine droplets and particles (also often referred to as aerosols) smaller than 10 microns ;3,5
which increase in number with the volume of speech10-12 and specific types of phonation.13 Multi-layer cloth masks can both
block up to 50-70% of these fine droplets and particles3,14  and limit the forward spread of those that are not captured.5,6,15,16
Upwards of 80% blockage has been achieved in human experiments that have measured blocking of all respiratory droplets,4
with cloth masks in some studies performing on par with surgical masks as barriers for source control.3,9,14

Filtration for Wearer Protection

Studies demonstrate that cloth mask materials can also reduce wearers’ exposure to infectious droplets through filtration,
including filtration of fine droplets and particles less than 10 microns. The relative filtration effectiveness of various masks has
varied widely across studies, in large part due to variation in experimental design and particle sizes analyzed. Multiple layers
of cloth with higher thread counts have demonstrated superior performance compared to single layers of cloth with lower
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of cloth with higher thread counts have demonstrated superior performance compared to single layers of cloth with lower
thread counts, in some cases filtering nearly 50% of fine particles less than 1 micron .14,17-29 Some materials (e.g.,
polypropylene) may enhance filtering effectiveness by generating triboelectric charge (a form of static electricity) that
enhances capture of charged particles18,30 while others (e.g., silk) may help repel moist droplets31 and reduce fabric wetting
and thus maintain breathability and comfort. In addition to the number of layers and choice of materials, other techniques
can improve wearer protection by improving fit and thereby filtration capacity. Examples include but are not limited to mask
fitters, knotting-and-tucking the ear loops of medical procedures masks, using a cloth mask placed over a medical procedure
mask, and nylon hosiery sleeves.31-35

Human Studies of Masking and SARS-CoV-2 Transmission

Data regarding the “real-world” effectiveness of community masking are limited to observational and epidemiological studies.

• An investigation of a high-exposure event, in which 2 symptomatically ill hair stylists interacted for an average of 15
minutes with each of 139 clients during an 8-day period, found that none of the 67 clients who subsequently consented
to an interview and testing developed infection. The stylists and all clients universally wore masks in the salon as
required by local ordinance and company policy at the time.36

• In a study of 124 Beijing households with > 1 laboratory-confirmed case of SARS-CoV-2 infection, mask use by the index
patient and family contacts before the index patient developed symptoms reduced secondary transmission within the
households by 79%.37

• A retrospective case-control study from Thailand documented that, among more than 1,000 persons interviewed as part
of contact tracing investigations, those who reported having always worn a mask during high-risk exposures experienced
a greater than 70% reduced risk of acquiring infection compared with persons who did not wear masks under these
circumstances.38

• A study of an outbreak aboard the USS Theodore Roosevelt, an environment notable for congregate living quarters and
close working environments, found that use of face coverings on-board was associated with a 70% reduced risk.39
• Investigations involving infected passengers aboard flights longer than 10 hours strongly suggest that masking
prevented in-flight transmissions, as demonstrated by the absence of infection developing in other passengers and crew
in the 14 days following exposure.40,41

At least ten studies have confirmed the benefit of universal masking in community level analyses: in a unified hospital
system,42 a  German city,43 two U.S. states,44, 45 a panel of 15 U.S. states and Washington, D.C.,46, 47 as well as both
Canada48 and the U.S. 49-51 nationally. Each analysis demonstrated that, following directives from organizational and political
leadership for universal masking, new infections fell significantly. Two of these studies46, 47 and an additional analysis of data
from 200 countries that included the U.S.51 also demonstrated reductions in mortality. Another 10-site study showed
reductions in hospitalization growth rates following mask mandate implementation 49. A separate series of cross-sectional
surveys in the U.S. suggested that a 10% increase in self-reported mask wearing tripled the likelihood of stopping community
transmission.53 An economic analysis using U.S. data found that, given these effects, increasing universal masking by 15%
could prevent the need for lockdowns and reduce associated losses of up to $1 trillion or about 5% of gross domestic
product.47

Two studies have been improperly characterized by some sources as showing that surgical or cloth masks offer no benefit. A
community-based randomized control trial in Denmark during 2020 assessed whether the use of surgical masks reduced the
SARS-CoV-2 infection rate among wearers (personal protection) by more than 50%. Findings were inconclusive,54 most likely
because the actual reduction in infections was lower. The study was too small (i.e., enrolled about 0.1% of the population) to
assess whether masks could decrease transmission from wearers to others (source control). A second study of 14 hospitals in
Vietnam during 2015 found that cloth masks were inferior to surgical masks for protection against clinical upper respiratory
illness or laboratory-confirmed viral infection.55 The study had a number of limitations including the lack of a true control (no
mask) group for comparison, limited source control as hospitalized patients and staff were not masked, unblinded study arm
assignments potentially biasing self-reporting of illness, and the washing and re-use of cloth masks by users introducing the
risk of infection from self-washing. A follow up study in 2020 found that healthcare workers whose cloth masks were
laundered by the hospital were protected equally as well as those that wore medical masks.56

Adverse Health Effects of Mask Wearing

Research supports that mask wearing has no significant adverse health effects for wearers.  Studies of healthy hospital
workers, older adults, and adults with COPD reported no change in oxygen or carbon dioxide levels while wearing a cloth or
surgical mask either during rest or physical activity.57-59 Among 12 healthy non-smoking adults, there was minimal impact on
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g g p y y g y g , p

respiration when wearing a mask compared with not wearing a mask; however, the authors noted that while some
respiratory discomfort may have been present, mask use was safe even during exercise.60 The safety of mask use during
exercise has been confirmed in other studies of healthy adults.61-63 Additionally, no oxygen desaturation or respiratory
distress was observed among children less than 2 years of age when masked during normal play.64 While some studies have
found an increase in reports of dyspnea65 (difficulty breathing) when wearing face masks, no physiologic differences were
identified between periods of rest or exercise while masked or non-masked.63

Conclusions
Experimental and epidemiological data support community masking to reduce the spread of SARS-CoV-2. The prevention
benefit of masking is derived from the combination of source control and wearer protection for the mask wearer. The
relationship between source control and wearer protection is likely complementary and possibly synergistic14, so that
individual benefit increases with increasing community mask use. Further research is needed to expand the evidence base for
the protective effect of cloth masks and in particular to identify the combinations of materials that maximize both their
blocking and filtering effectiveness, as well as fit, comfort, durability, and consumer appeal. Mask use has been found to be
safe and is not associated with clinically significant impacts on respiration or gas exchange. Adopting universal masking
policies can help avert future lockdowns, especially if combined with other non-pharmaceutical interventions such as social
distancing, hand hygiene, and adequate ventilation.

Table: Summary of studies that have assessed the effect of mask mandates on COVID-19 infection risks 

Study
Type of months Population
investigation Location (all 2020) studied Intervention Outcome

Hendrix36 Cohort study Hair salon May 2 Universal No COVID-19

in symptomatically masking in salon infections
Springfield, infected stylists (by local among 67
MO  (USA) and 139 ordinance and patrons who
patrons company policy) were available
for follow-up

Payne39 Cohort study USS March 382 U.S. Navy Mask wearing Masking
Theodore service (self-report) reduced risk of
Roosevelt, members infection by 70%
Guam (unadjusted OR
(USA) 0.30, 95% CI =
0.17-0.52)

Wang Y37 Cohort study Households February- 124 households Mask wearing by Masking
in Beijing March of diagnosed index cases or >1 reduced risk of
(China) cases household secondary
comprising 335 member prior to infection by 79%
people index case’s (adjusted OR
diagnosis (self- 0.21, 95% CI =
report) 0.06-0.79)

Doung-Ngern38 Case-control Bangkok April- May 839 close Mask wearing by Always having
study (Thailand) contacts of 211 contact at time used a mask
index cases of high-risk reduced
exposure to case infection by 77%
(self-report) (adjusted OR
0.23, 95% CI =
0.096-0.60).

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Study
Type of months Population
investigation Location (all 2020) studied Intervention Outcome

Gallaway44 Population- Arizona, January- State Mandatory mask Temporal

based USA August population wearing in public association
intervention between
institution of
masking policy
and subsequent
decline in new
diagnoses.

Rader52 Serial cross- United June- July 374,021 Self-reported A 10% increase
sectional States persons who mask wearing in in mask wearing
surveys completed web- grocery stores tripled the
based surveys and in the likelihood of
homes of family stopping
or friends community
transmission
(adjusted OR
3.53, 95% CI =
2.03-6.43).

Wang X42 Population- Boston, MA March- 9,850 Universal Estimated daily

based (USA) April healthcare masking of HCW decline in new
intervention workers (HCW) and patients, diagnoses
with trend Mass General among HCW of
analysis Brigham health 0.49%
care system

Mitze43 Population- Jena April City population Mandatory mask Estimated daily
based (Thuringia), aged >15 years wearing in public decline in new
intervention Germany spaces (e.g., diagnoses of
with trend public transport, 1.32%
analysis shops)

Van Dyke45 Population- Kansas, June- State Mandatory mask Estimated case
based USA August population wearing in public rate per 100,000
intervention spaces decreased by
with trend 0.08 in counties
analysis with mask
mandates but
increased by
0.11 in those
without.

Lyu and Population- 15 US March- State Mandatory mask Estimated

Wehby46 based states and May population wearing in public overall initial
intervention Washington daily decline in
with trend DC new diagnoses
analysis of 0.9%, grew to
2.0% at 21 days
following
mandates.

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Study
Type of months Population
investigation Location (all 2020) studied Intervention Outcome

Joo49 Population- United March- State Mandatory mask Estimated

based States October populations wearing in public decline in
intervention weekly
with trend hospitalization
analysis rates by up 5.6
percentage
points for adults
aged 18–64
years after
mandate
implementation,
compared with
growth rates
during the 4
weeks
preceding
implementation
of the mandate.

Guy51 Population- 2,313 March- County Mandatory mask Estimated

based counties, December population wearing in public overall initial
intervention US daily decline in
with trend new diagnoses
analysis of 0.5%, grew to
1.8% at 81-100
days following
mandates.
Estimated
overall initial
daily decline in
deaths of 0.7%,
grew to 1.9% at
81-100 days
following mask
mandate
implementation.

Karaivanov48 Counterfactual Canada March- County Mandatory mask Estimated

modeling August population wearing indoors weekly 24%-46%
using national decline in new
data diagnoses
following mask
mandates.

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Study
Type of months Population
investigation Location (all 2020) studied Intervention Outcome

Chernozhukov50 Counterfactual United March- State Mandatory mask Nationally

modeling States May population wearing for mandating face
using national employees in masks for
data public employees early
businesses in the pandemic
could have
reduced the
weekly growth
rate of cases
and deaths by
more than 10
percentage
points in late
April and 19%-
47% fewer
deaths
nationally by the
end of May.

Leffler52 169 Jan–May County Mask wearing by Duration of

countries population tradition, mask wearing
mandate, or by the public
recommendation was negatively
associated with
per-capita
mortality from
COVID-19.

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Last Updated May 7, 2021

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