The Bayfield school board reversed course and voted in a split decision Tuesday to require face masks on school buses.

The school district started the school year Tuesday morning with a policy that recommended – but did not require – masks at all school facilities, including buses. The policy went against a federal order from the Centers for Disease Control and Prevention.

“I think the longer we’re out of compliance, that’s not going to look good for any of us,” said board member Mary Lynne Herr before the vote. “Kids have been on the bus one day. This has come to our attention that we’re not abiding by federal mandate. I think we need to take action. If the mandate ceases to be a mandate, then yes, we can vote again later based on the conditions at that time.”

School board members Herr, Amy Davlin and Rebecca Parnell voted to require the masks on buses to comply with the order. Board President Mike Foutz and Vice President Debbie Wilhelm voted against requiring masks.

The rate of new COVID-19 cases has increased in recent weeks as the doubly contagious delta variant of the coronavirus spreads across the United States.

San Juan Basin Public Health issued a formal advisory recommending school districts require masks in schools, advice that Durango School District 9-R made a policy for its school facilities. While the Bayfield School District has reversed course on the bus issue, it still only recommends masks on school grounds, meaning students and teachers can decide whether to wear masks.

Advisories are the strongest recommendation the health agency can make without issuing an order, said Chandler Griffin, SJBPH spokesman.

The CDC order went into effect Feb. 1, requiring masks on all public transportation with some exceptions, such as for eating, health issues and identification purposes.

On school buses, the masking order applies to passengers and drivers regardless of whether school systems are public or private, vaccination status of individuals, the location of the district or the rate of COVID-19 transmission in a community.

“San Juan Basin Public Health applauds the school district for doing the right thing: to have kids mask up on school buses and make sure buses are as safe as possible,” Griffin said Chandler Griffin.

Durango requires masks on school buses, but Ignacio is also out of compliance with the federal order.

Herr and Davlin said they became aware of the district’s noncompliance because of reporting by The Durango Herald.

“If we are going to flout a federal order, I feel like that needs to come to board discussion prior to that happening,” Davlin said. “I was not aware of this order until last night.”

It should have been brought before the board two weeks earlier when the district was discussing its COVID-19 policies, she said.

During a discussion Tuesday, the Bayfield school board considered the applicability of the order, how it would be implemented and whether it could be enforced.

The board was united in support of allowing families to choose their responses to COVID-19 in as many ways as possible.

“I don’t think it’s fair to say we’re taking away family choice,” Davlin said. “We’re doing everything we can to give families every option they possibly can have to keep kids in the school. I don’t know what more we can do at this point.”

The officials, however, were divided when it came to the content of the federal order.

Foutz, Wilhelm and Superintendent Kevin Aten were not in support of the order.

Masking has been a divisive issue in communities across the United States, including Bayfield. Foutz was concerned that continued debate isn’t healthy for the school community and wanted to give parents the opportunity to choose whether to wear masks.

On Monday, he said he was aware of the federal order, but the district did not plan to require masks on buses.

“When I hear from our lawyers that it’s still a little bit of a gray area, that makes it even tougher for me to enforce something that does infringe on what I consider to be personal rights,” Foutz said.

Wilhelm opposed the content of the order, saying it would be hard for bus drivers to enforce while driving and kids likely wouldn’t keep wearing the masks. But, she could not argue with the fact it is federally required.

Aten doubted whether school buses count as public transportation in a rural town like Bayfield. He said the federal order was government overreach, and it would create inconsistency in the district’s masking policies.

“Honestly, I think for consistency basis, I’m fine not doing it,” he said. “But I also understand for legal reasons to do it.”

Aten also said the attorney mentioned there were gray areas in relation to the order, like how government immunity applies and whether school buses are public transportation.

“It has no teeth,” Aten said.

“It’s not a gray area,” said Griffin, with SJBPH. “We encouraged Dr. Aten to comply with the CDC order as soon as we got word (Aug. 20) that they were considering not complying.”

Public health orders have the force of law, Griffin said. Although SJBPH has no direct enforcement authority, it can assist in the enforcement of the order by reporting violations and encouraging compliance.

People who refuse to wear a mask on a transportation conveyance may be subject to a civil penalty, according to the CDC. Civil monetary penalties can be levied up to $500,000 for an entity per violation, according to the Colorado Department of Education.

Board members who voted in favor of requiring masks primarily based their decision on the fact that it is federally required.

Parnell said requiring masks on buses could preserve family choice in other areas and prevent the spread of COVID-19. Implementing it, however, would be a challenge particularly with sports, she said.

Herr said violating the order would make the district vulnerable. The district’s attorney advised Bayfield to follow the order, and the district nurse also recommended following the order in an email to board members, she said.

“I think we would be making a mistake and taking a huge risk, especially when there are documents that spell out, in clear English, school buses ... are bound by this order,” she said.

Davlin said it was a tough situation for the district, but the federal order needs to be followed.

“I don’t think I’d be doing my job as a board member to say it was fine to not follow a federal order,” Davlin said. “I wish it was something we had prepared everybody for a long time ago. But that didn’t happen, so here we are.”

smullane@durangoherald.com

An earlier version of this story misstated the masking policies for Ignacio School District. The error was made in editing.