Decision On District’s Mask Mandate Policy Will Go To Supreme Court No Matter Who Loses

By Terri Jo Neff

Whether a new state law concerning mask mandates is effective now, or doesn’t go into force until Sept. 29 is the question a Maricopa County judge must answer, but even he admits the final decision will be made by someone else.

Judge Randall Warner held oral arguments Friday morning in a petition for a temporary restraining order (TRO) requested by Douglas Hester against his employer, Phoenix Union High School District, which recently announced a mandatory mask policy for its students, parents, and staff when on school property, including buses.

The Centers for Disease Control and Prevention (CDC) currently recommend K-12 students, parents, and staff wear masks when indoors even if vaccinated for COVID-19. Phoenix Union and at least nine other districts across the state have announced or implemented mask mandate.

Hester contends the new state law barring cities, towns, charter and public schools, community colleges, and public universities from ordering or enforcing any such mandated mask usage became effective June 30.

One or both the sides in the case could appeal Warner’s decision on the effective date of the no-mask mandate statute, depending on how he rules and the reasoning behind his decision. Warner acknowledged as such Friday when he said his ultimate duty in the case is to “tee it up for the Supreme Court” and let the justices make the final ruling

Hester, a science teacher for the district, contends HB2898, the K-12 Education Budget Reconciliation Bill which created the new law, is already in effect due to a retroactive clause. Therefore, he wants Warner to issue a TRO to block enforcement of Phoenix Union’s new policy.

Phoenix Union, through its attorney Mary O’Grady, opposes any TRO. O’Grady also filed a motion on the district’s behalf asking Warner to dismiss the case. It is the district’s position that the effective date of the new statute is not until Sept. 29, the ninety-first day after the legislative session ended.

The district also questioned why legislators would include a retroactive effective date if the new law took effect on the schedule Hester’s attorney Alex Kolodin contends is in place.

According to Kolodin, the 90-day provision does not apply to HB2898m the K-12 Budget reconciliation bill. He argued Friday that is one reason appropriations bills are not subject to voter referendums.

“The retroactivity clause, the governor, and members of the Legislature have all expressed their intent was for schools to not be able to do this after June 30 by putting in that retroactivity clause,” he argued.

Hester named the Phoenix Union District and its eight board members as defendants. Warner’s decision is expected next week.