Ashley Weitz isn’t a special educator, but for more than 500 days she’s served that role in her child’s life.
Her child, Ezra, who is 7, needs to go to school in person to receive the full benefit of special education services to help address attention deficit hyperactive disorder and delays in his speech and fine motor skills.
But he also has medical conditions that put him at risk of severe complications if he were to contract COVID-19, which means he has not been able to complete an evaluation for an individualized education program, which must be done in person. An IEP lays out the special education instruction, supports and services a student needs to thrive in school.
So Weitz has taught her child at home since Gov. Gary Herbert ordered Utah schools to halt in-person learning in mid-March 2020.
“I’m the one serving my child in my home. I don’t mind it because he’s my kid. I don’t want to come across as I’m complaining, but I’m not a teacher. I’m not a special educator. We have people in public school districts who have those jobs because they’re good at those jobs,” she said.
Weitz is among a group of parent plaintiffs who on Monday filed a complaint in 3rd District Court challenging the constitutionality of laws passed by the Utah Legislature and signed into law by Utah Gov. Spencer Cox that limit pandemic restrictions, like mask orders, which they claim hinders Utah public schools’ ability to safely fulfill children’s right to a free public education.
According to the complaint, Ezra “cannot complete testing and therefore will not be afforded the proper support normally available under an IEP. E.W. (Ezra) is being deprived of the right to a free, appropriate public education.”
The complaint names Cox, Utah Lt. Gov. Deidre Henderson, Utah Attorney General Sean Reyes and Salt Lake County as defendants. Spokesmen for the Attorney General and Salt Lake County Attorney had no comment on the complaint. A spokeswoman for the governor’s office did not immediately respond to a request for comment.
The plaintiffs include Utah parents who are caregivers of at-risk children and children with disabilities, along with the Concerned Coalition movement, a nonprofit group that has been pressing for health practices such as masking to help ensure students’ safe return to in-person learning.
The lawsuit argues the laws violate the Utah Constitution, restrict access to a free, appropriate public education, deprive students of due process and equal protection, and cause harm to vulnerable individuals and families.
Weitz said she is part of the lawsuit “because it’s the right thing to do.”
“We’ve had a lot of back-and-forth over many, many months between the Legislature and the governor and local authorities. It was starting to feel like if nobody is going to show up for these kids, nobody’s going to show up for my kid, then I’m going to,” she said.
Absent a mask mandate, Weitz made the decision that her child, who has asthma and hemophilia, would not attend school in person this fall, either. Ezra is 7 and not eligible for COVID-19 vaccination. He is enrolled in Salt Lake City School District’s online school.
Online learning is the safest option for her and her child now that cases of COVID-19 and RSV (respiratory syncytial virus) are on the rise among children and schools are opening without the same degree of health precautions as last fall, which included masking for all students, teachers and staff, she said.
Weitz, a single parent, has Ehlers-Danlos syndrome, a rare inherited condition that affects connective tissue, which in her case manifests in loose, unstable joints that dislocate easily, extreme fatigue and an increased heart rate when standing up that can result in passing out.
A mask requirement would make it safer for her child to complete his IEP assessment, which would likely result in more supportive services. It would also mean less health risk for Ezra and his mom.
Ezra has a 504 plan, which is intended to ensure that a child with an identified disability who attends an elementary or secondary school receives accommodations that further their academic success and provide them access to the learning environment.
“The district has obligations that they cannot fulfill safely with those laws on the books. Ultimately, my dream would be to have those laws declared unconstitutional,” Weitz said.
“Under HB1007, school districts cannot follow Centers for Disease Control guidelines by requiring staff and students to wear masks. SB195 gives local county agencies the power to prevent an emergency public health order issued by a local health department from taking effect,” the complaint states.
It continues, “By preventing local schools from adopting mask requirements during an ever-worsening and deadly pandemic, the state of Utah is preventing plaintiffs and other children under the age of 12 with disabilities and underlying medical conditions from safely returning to school.”
In Ezra’s case, “My child has fallen through every single crack that has been created by this legislation,” Weitz said.
The lawsuit’s allegations also address remarks made by two members of the Salt Lake County Council, which on Aug. 17 voted 6-3 to terminate a 30-day mask order issued by Salt Lake County Health Department Executive Director Dr. Angela Dunn. It ordered elementary school-age children to wear masks to school in the face of rising COVID-19 cases in children and because vaccination for the children under age 12 has not been approved by federal regulators.
The complaint quotes County Councilwoman Aimee Winder Newton’s Facebook post that said in part, “I cannot, in good conscience, tell a parent that government knows better than they do for their child.”
It also quotes an email by Salt Lake County Councilwoman Dea Theodore, who stated “Government’s role is not to mandate compliance for the littlest among us … that is the role of parents. Government can inform and assist, but ultimately, this decision should be left up to parents. We live in a free society, we must allow citizens to make their own decisions.”
According to the complaint, “there is no unfettered personal freedom to engage in self-endangerment or to endanger others.
“The constitutionally protected right of family autonomy is not unfettered. There are many circumstances related to child health and well-being in which state intervention is constitutional.”
The complaint also notes that the Salt Lake County Council’s application of SB195 puts the plaintiffs, “by virtue of their underlying conditions, in grave danger of contracting COVID-19 if they attend in-person classes this fall by prohibiting the implementation of a simple, non-invasive, protective measure.”
Plaintiffs’ attorney Greg Skordas said in a statement that in the United States and the state of Utah, “we believe that access to a quality public education in a safe and healthy environment is a basic right.”
Several state laws passed by the Utah Legislature and signed by the governor last spring “handcuff our schools from slowing the spread of COVID-19 in their local jurisdictions. As a result, Utah families with at-risk youth have been forced to choose between their constitutionally protected right to public education and the health and safety of their children. This is unacceptable and, frankly, unconstitutional,” Skordas said.
During a press conference Monday afternoon, Skordas said the lawsuit does not seek to impose a mask mandate. It seeks to strike down laws that stand in the way of schools and local health authorities deciding for themselves the best course to ensure schools are safe and ensure the least amount of disruption in learning.
Asked about the loud and well organized parent organization that says decisions about masking are a parent’s right, Skordas said there comes a time that things need to be done to protect all children.
“I absolutely support a parent’s right to make decisions, but we’re talking about kids here who can’t make those decisions. We’re talking about parents who can’t. We’re talking about a group of kids who can’t, even if they wanted to get vaccinated, they can’t. Until we get to that point, cooler heads should prevail and medical professionals should at least be heard before we make those decisions,” he said.
Christopher Phillips, a co-founder of the Concern Coalition, said last school year, Utah’s layered mitigation strategy, which included universal masking, showed the nation that schools could operate safely in person during a pandemic.
“We showed our Utah values and what Utah can be. This is the Utah way,” he said.
Utah has the right tools to win this war, even as cases surge due to more virulent variants of COVID-19, Phillips said.
“Let me be clear: Masks are safe and effective at preventing the spread COVID-19. Our children generally tolerate them well. What they don’t tolerate is the pandemic that continues to rage around us. Utah should be leading the way again. But we’re not. Sadly our local officials are being blocked from implementing safety measures,” he said.
The lawsuit notes this is not the first time in Utah history the state has faced a public health crisis.
“At the turn of the 20th century, smallpox had spread throughout the state prompting the Board of Health and Board of Education to adopt resolutions excluding all unvaccinated pupils from attending public schools.
“One parent objected and filed a lawsuit. The Utah Supreme Court sided with the boards of education and health:
“In endeavoring to prevent the spread of an infectious disease known to be dangerous, the board of health acted in the performance of its highest duty to the people of the city of Salt Lake. To neglect such known duty, when imposed, would be reprehensible. The great duty of all governments is the welfare and happiness of its people.
“Without health a community can not well enjoy happiness or become prosperous and contented. To secure public health an imperative obligation rested upon the city, through its proper board of health, to take all necessary steps to prevent the spread of contagious diseases,” the court ruled.