UPDATE: How many different teachers and families have downloaded the opt out notice?
Total as of 6:52 PM on 8/24/20 - 3,293 families (households), 545 teachers
You are not alone! Stand Together!
UPDATE: Based on continued feedback, we're updating information here. Scroll to bottom to see updates.
UPDATE: Utah KUTV covers this article. U of U law professor and former judge, says the constitution is not legally valid.
The first and most correct solution to this mask issue, is to leave the unconstitutional government school system. But, for those who find themselves unable to go this route, we have put together this research for you.
The bottom line is this:
Teachers, parent and students do not have to wear a mask in schools.
Simply don’t do it if you don't want to.
There is no law, constitutional or pretended, that requires it.
If that statement gives you enough courage to do exactly what it says, then you're done. However if you want more understanding to push back against those who disagree, let’s talk through what’s going on.
(Marbury vs. Madison, 1803)
The media is running rampant with countless headlines like this:
“Utah says students must wear face masks”
“Gov. Gary Herbert requires masks for all in K-12 schools this fall”
“Utah governor mandates masks for schools amid rising number of COVID-19 cases”
Most of Utah is acting as if newspaper headlines are legislative actions. They see the headlines and assume this is the fate they have to accept. Various school administrators also act as if these statements actually exist in law, and as parents we simply give up. We are too often ignorant as to the lack of authority that exists in these ideas.
The shocking reality, that should be obvious, is: Neither newspaper headlines nor the content of the articles are legislative actions (laws). But they do get in our heads and stress us out when these ideas get repeated so often.
Only the state legislature can pass laws that are binding on the people, and even then they are not binding unless they have been created within the proper constitutional limits. You’ll find that these articles are all referring to actions taken by non-legislative bodies. Neither a school board, health department or the governor’s office is a legislative body that has the power to write law, and nothing these entities do can ever take away your right to not wear a mask (or anything else). Only our ignorance gives the illusion that they have this power.
The orders and pretend-laws that they’re referring to:
Executive order 2020-50
Cutting through the legalese and word games in E.O. 2020-50 and their hidden definition of the word “Person”, this executive order claims to force every person, school, company (any entity at all) in the state of Utah to comply with all applicable rules in the official “Phased Guidelines for the General Public and Businesses to Maximize Public Health and Economic Reactivation version 4.1”.
An emphasis is made on healthcare workers and employees of businesses to wear masks. It also makes a “strong recommendation” to everybody else.
It then claims to grant all counties and cities in Utah the power to mandate masks on their own, without approval from the state.
However, the most important part of this order is towards the end where it states that anything which conflicts with previous Executive Order 2020-48 or the state’s Utah Public Health Order 2020-11 is invalid. This means we have to go read these other orders to see what parts of 2020-50 don’t actually mean anything.
Executive order 2020-48
This is where you’ll find that no matter what rules pretend to force you to wear a mask, you actually don’t have to wear one according to their own exemptions. While some of the exemptions are specific to unique circumstances, they’ve provided multiple “catch all” exemptions that apply to every person in Utah. For example, if a mask obstructs your breathing, you don’t have to wear one = Everyone is exempt.
Here’s the full list of exemptions:
- A child in a childcare setting (this is arguably every child in the government school system)
- A child under three years old
- Any age child who if the parent, guardian, or individual responsible for caring for the child cannot place the face covering safely on the child's face;
- An individual with a medical condition, mental health condition, or disability that prevents wearing a face covering
- An individual with a medical condition for whom wearing a face covering could cause harm or obstruct breathing, or who is unconscious, incapacitated, or otherwise unable to remove a face covering without assistance;
- An individual who is deaf or hard of hearing, or communicating with an individual who is deaf or hard of hearing, where the ability to see the mouth is essential for communication, in which case a face shield or alternative protection such as a plexiglass barrier should be used;
- An individual who is receiving or providing a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service
- An individual who is outdoors
- An individual in a vehicle
- An individual who is actively engaged in any of the following activities while maintaining a physical distance of at least six feet from any other individual who is not from the same household or residence:
- Using an indoor recreational facility
- Eating or drinking
- A state employee who is not speaking in person with any other individual
- Is the sole occupant of a fully enclosed room or office
- Is the sole occupant of a partially enclosed room, office, or similar space, including a cubicle, that is enclosed on at least three sides by walls or other physical barriers or dividers of a height that reaches no lower than the top of the employee's head when the employee is seated
- Is seated or stationary, and maintains a physical distance of at least six feet from any other individual
Do you fall under these exemptions? I guarantee everyone in the state can fit somewhere in that list. So if you want to appeal to this order, you are free to simply state “I have an exemption under the order” to anyone who asks you.
But what if you can’t officially provide documentation of your valid exemption? The governor says that’s okay in section 4 as follows: “a state governmental entity may not require an individual to provide medical documentation verifying the basis for an exemption”.
The only time they now claim they CAN ask you for documentation, is if you work for the state government or you are a student at a “state institution of higher education”. However, in this case I would refer you back to the fact that any government in the United States cannot take away your liberty without due process. This is a fundamental constitutional limitation of all levels of government.
State Health Order 2020-11
This is the main one that parents are reacting to in relation to schools.
This order claims “Each individual on school property or on a school bus shall wear a face mask”.
It then lists exemptions, which are essentially the same exemptions as the governor’s executive order with a few additions, such as P.E. class and various educational specific scenarios.
So if you feel masks “obstruct breathing” then you have a valid exemption, even under their own order (pretended legislation).
If a school demands that you provide documentation, know that their own order does NOT require the school to ask for documentation. If they do ask for it, it is 100% the school’s choice to ask you, so don't believe the excuse that the governor or health department is forcing them. The word "may" means it's optional for the school.
However, your notice to opt out of masks constitutionally overrides all requirements the schools try to place on you. Just because they "may" ask you, you do not have to provide any documentation because the constitution guarantees your right to choose what you put on your face in all circumstances. Download the example opt out referenced at the bottom of this article.
A COMMON EXCUSE:
One common excuse these non-legislative bodies make in trying to claim they have the power to write law, is pointing to an actual statute that claims to give legislative power to the health department or some extra-legislative body. Because the legislature originally passed this claim of granting legislative power, it's tempting to think that it's valid. However any legislative action cannot violate constitutional limits. And the Utah state constitution has strictly defined where legislative power resides in Article VI. The legislature or the people (the referendum process)
What about the school board that now claims they can charge children with a misdemeanor for not wearing a mask? This document was recently published which claimed
"It must be remembered that this order has the same authority/force as a law during the time it is enacted. Failure to comply with the order is a misdemeanor".
The school board is justifying this statement because they claim Utah Code 26A-1-123 gives non-legislative bodies the power to apply the force of law to their rules. Let's be very clear, that this is a completely unconstitutional claim because of Article VI Section 1. The state constitution limits legislative power to the legislature and the people, and therefore no law can constitutionally delegate that power to any other body. The school board's claim is a complete farce. However, even it that were incorrect, the health department and governor's own "rules" still give all the exemptions. So either way, this is a non issue.
Additionally, anyone claiming these orders have the force of law to intimidate you into following them could be sued under federal code Title 18 Section 242 for acting under the color of law.
PARENTAL RIGHTS SUPREME:
Utah Code 62A-4a-201 states that Utah recognizes the rights of parents, and the state may not interfere with the decisions parents make for their children without proper due process.
“Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent's children. A fundamentally fair process must be provided to parents if the state moves to challenge or interfere with parental rights. A governmental entity must support any actions or allegations made in opposition to the rights and desires of a parent regarding the parent's children by sufficient evidence to satisfy a parent's constitutional entitlement to heightened protection against government interference with the parent's fundamental rights and liberty interests”
Here's a good moment when the state superintendent acknowledged that parents are supreme in all decisions over their children.
Now let's circle back to the original point, after having studied all of these silly orders and how they actually can’t make anybody do anything because everybody has an exemption. When it comes to your individual rights and the ability of the government to tell you what to do with any aspect of your life, these orders can literally be thrown into the garbage because none of these come from a legislative body. Any attempt to convince you that they are binding on you and have any bearing on your personal liberty is nothing but word magic perpetrated by those ignorant of the law or willingly conspiring against your freedoms.
Always fall back to the phrase: "Show me the law"
Anything they show you on mask mandates, will not be a law.
You have the right to simply live your life and claim your right to go mask-free already, right now, as you read this. But if you want to put a school on notice that you are claiming your rights and what your justification is, we recommend this sample mask opt out notice to schools for teachers or students and parents published by the Utah Central Committee (UCC).
WHAT IF THEY STILL DENY YOU:
Be clear, when you send this opt-out notice you are NOT asking permission from the school. It doesn't matter how the school responds, because if they try to push back on your notice you can be confident that their email reply or voicemail to you is also not legislative action. You are TELLING THEM the law and what your rights are and simply notifying them as a courtesy. You are following the law of the land. There is no excuse they can give you that lawfully negates your rights. Feel free to just repeat yourself if you feel you need to continue the discussion with them instead of ignoring them.
Depending on the age of your child and family dynamic, you can either teach your child what their lawful rights are and that they don't need permission to exercise rights that God gave them. Or train you child to respond with "My parents already took care of this, here's their phone number please call them". Don't allow a school to talk your child into a corner and into submission, they can just repeat (like a broken record) that they have to call their parents to address the issue. Your only job is to continue to assert that you expect the school to follow the law. It may be wise that you group together with other families so that your children are not alone in opting-out of masks and they have a way to document violations of their rights.
We honor and respect the law, that is why as law abiding citizens we must take it seriously when a bureaucracy is conspiring against the population to violate the law and your rights on such a large scale.
Your final legal position, is the constitution itself, which school administrators, police officers and elected officials all took an oath to uphold. All levels of government are limited by the constitution.
-- “No person shall... be deprived of life, liberty, or property, without due process of law” - (US Constitution Amendment Five) --
-- The Utah state constitution also enumerates this right to liberty (Utah Constitution, Article 1 Section 1) --
-- Your rights to liberty include many rights, even if nobody ever enumerated them (that means to specifically list them) "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" (US Constitution Amendment Nine) --
-- Liberty includes the right to choose your own medical treatment, which includes wearing a mask or not. --
And again, to avoid all this nonsense, the first and most correct solution to this mask issue, is to leave the unconstitutional government school system.
We also recommend becoming a member of the UCC if you’re concerned about violations of your rights by the state and want to join a network of like minded individuals and families that are willing to stand up for each other and for truth and the rule of law under the constitution.
Idaho Residents: Defending Idaho has also published a mask opt out for Idaho