A local high school has enforced its district mask mandate relentlessly but students dropped their masks to participate in the “Day of Silence,” or “DOS,” a day of action for LGBTQ acceptance. Pre-pandemic, students participated by taping their mouths shut. This year was no different for some, according to reports received by AZ Free News.
Last Friday, the Gay Straight Alliance (GSA) Club at Betty H. Fairfax High School within the Phoenix Union High School District (PXU) organized a slew of activities to commemorate students taking a vow of silence for the purported silencing that the LGBTQ+ community faces. The club handed out rainbow lanyards with DOS informational cards, rainbow stickers, and rainbow masks. There were several large tables set up outside with posters, and they encouraged students to participate in either of the two “solidarity circles” during lunch: students standing or walking in a circle holding hands.
AZ Free News reached out to PXU for comment. They didn’t respond by press time.
DOS and the GSA clubs, also identified by a number of other names such as “Genders & Sexualities Alliance” or “Queer-Straight Alliance” at other schools, are the brainchild of Gay, Lesbian, & Straight Education Network (GLSEN), an activist organization focusing on minors’ sexualization. GLSEN has expressed repeatedly that they never advocated for duct tape wearing for DOS, but acknowledged that it was a popular outward expression of the vow of silence.
Current students weren’t the only ones subject to GSA exposure that week. Several days prior to the DOS protest, Betty H. Fairfax High School welcomed future freshmen with a GSA booth, among others.
Several months before these events, the club passed out pronoun pins for students and faculty to wear on their lanyards.
Former Arizona Attorney General and Superintendent of Public Instruction candidate Tom Horne said in a statement to AZ Free News that Arizona students’ SAT scores were above the national average but declined after he left office. Horne characterized the GSA club events like Day of Silence as diversions that hurt academic outcomes.
“This is because leadership has neglected the necessary emphasis on academics, with harmful diversions, such as critical race theory, or, as in this case, A day of silence, which interferes with learning,” said Horne. “Schools need to be teaching the academics and not promoting racially divisive critical race theory, or other similar diversions such as the day of silence. The exception for the mask mandate shows runaway hypocrisy. My heroes are teachers who love their subjects, and focus on teaching them, rather than those who see their role as pushing ideological agendas.”
Betty H. Fairfax High School GSA has led the charge on LGBTQ popularity and acceptance in the district for years. In 2018, they won the GSA of the Year award.
Then in 2019, the woman who started the GSA club, Dayna Monroe, won GSA Sponsor of the Year. Monroe explained in an interview on receiving the award that her efforts caused district-wide policy changes. Her students nicknamed her “Mommy Monroe,” with one female student likening Monroe to a “therapist” figure.
“Mrs. Monroe, I consider her my school mom. She’s someone I can trust,” testified another female student.
Monroe has taught in schools for 20 years, with a decade spent in PXU.
A new state law resolves one of the most controversial aspects of the pandemic – who gets to decide whether a child must wear a mask or face covering.
On Monday, Gov. Doug Ducey signed House Bill 2616 which puts the mask or no mask decision squarely in the hands of parents instead of school officials or any other bureaucrat.
“Parents should make decisions for their children, not the government,” said Rep. Joseph Chaplik, who sponsored HB2616 to require the express consent of the parent or guardian of anyone under age 18 before a government official can require a child to wear a mask.
“Arizona law already requires parents to be consulted before instituting medical requirements for children,” noted Chaplik (R-LD23). “This commonsense bill extends the law to include masks, joining other freedom states in protecting the right of parents to make decisions for their child.”
The prohibition on mask mandates of children applies to the State of Arizona, its political subdivisions, any governmental entity, school districts, and charter schools. The entire Republican caucus of the House and the Senate voted in support of HB2616, which was sent to the governor’s desk last week.
The Senate Government Committee is scheduled on Monday to consider HB2616, a bill requiring governments to receive parental consent in order to require a minor to wear a mask. That applies to political subdivisions and entities like public and charter school districts as well.
The masking choice bill passed the House last month along party lines, 31-28.
House Democrats insisted that the bill worked against science. State Representative Marcelino Quiñonez (D-Phoenix) cast Republicans as those inviting discrimination by not normalizing mask-wearing.
“There seems to be a hesitancy to accept the science and go with the science. Instead of doing that, we continue to create barriers to ensure that people feel othered by wearing a mask, instead of following the science,” said Quiñonez. “The legislation to create another barrier, another bureaucracy, is overdue. And so with that, I encourage my colleagues to follow the science and vote ‘no.’”
The recent US Supreme Court decisions around mask mandates have understandably generated a great deal of media coverage and comment. Many conservatives have praised the Supreme Court’s decision to affirm the stay on the nationwide OSHA vaccine mandate. But as a lifelong prosecutor and judge, I can assure you the true and most significant factor has been overlooked. Specifically, based on the Court’s decision to vacate the stay regarding the vaccine mandate for healthcare workers (the “CMS Mandate”), the President, with no constitutional or legal authority, has been allowed to order ten million healthcare workers to receive a vaccine or risk losing their jobs and their livelihood. And while state legislatures, exercising their police powers, have imposed vaccine requirements on healthcare workers in the past, no President has imposed a nationwide mandate involving such a permanent, personal healthcare decision. Simply put, as Judge Sutton recently stated in In re MCP No. 165, unlike masks or gloves, “vaccines cannot be removed at the end of the shift.”
The underlying legal justification for overturning mask mandates on businesses is the same legal basis that should have driven a decision to roll back a mask mandate for our health care workers. In both the OSHA and the CMS cases, the issue was not whether vaccines were a wise or effective measure against the spread of COVID-19. Rather, the issue was simply whether the President has the constitutional authority, through executive branch administrative agencies, to impose nationwide vaccine mandates. In the OSHA case, the Court held, by a vote of 6-3, that because Congress never clearly delegated such authority to the President, he lacked the authority to impose such a mandate. However, in the CMS case, Justices Roberts and Kavanaugh switched their votes on the grounds that Congress had delegated such authority to the President based on a hodge-podge of Social Security statutes. But these statutes provide no such authority. Indeed, the purported delegation for the CMS mandate was less clear and more strained than the statutes offered to justify the OSHA mandate. So, what explains the puzzling switch of two purportedly conservative Justices on essentially the same issue?
It is difficult to avoid the conclusion that Roberts and Kavanaugh, at least at some level, sought to appease the public’s concern over COVID. Thus, in effort to “soften” the public’s reaction to the OSHA decision, they justified the switch by relying on the purportedly stronger policy arguments for mandating vaccines for healthcare workers to protect hospital patients from COVID. But while politics and the will of the public has rightfully driven decision-making in our Executive and Legislative branches of government, our Judiciary was set up by our Founding Fathers to make judgements based on the law and precedent. The Supreme Court does not have the authority to determine whether vaccine mandates are good policy, nor may the Court violate the Constitution in the interests of promoting political harmony or the popularity of the Court. As Justice Scalia once stated, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
With these recent decisions around mask mandates, Justices Roberts and Kavanaugh have dangerously broken through that critical differentiation, opening the Court up to the influence of the day’s ever-changing political environment. Judges must have the courage and resolve to enforce the Constitution, even when the results may be unpopular. It may appease some that the OSHA stay was upheld, but it was denied for healthcare workers. But either way, the result is the same: a precedent has been set by the Court allowing the President to use any crisis labelled a “medical emergency” to expand his power. The consequences of this decision will inflict grave damage to the rule of law. As Justice Jackson stated in his dissent in Korematsu v. United States, when the Court permits another branch to set aside constitutional protections to address emergencies, such decisions lie “about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Of course, looming in the background is the Supreme Court’s pending abortion decision in Dobbs v. Jackson Women’s Health Organization. There are sound legal grounds set forth in Dobbs for modifying, if not overruling Roe v. Wade, and allowing the legislative branch to decide the abortion issue. But mark my words, the Supreme Court, led by Justices Roberts and Kavanaugh, will land on a more muddled, middle of the road, politically crafted decision that attempts to please everyone. They have shown their hand in the CMS case.
Andrew W. Gould was appointed as a Justice to the Arizona Supreme Court in 2017 after serving 5 years on Division One of the Arizona Court of Appeals. He retired from the Supreme Court in March 2021. Prior to his appointment to the Court of Appeals, Justice Gould spent 11 years as a Judge of the Superior Court in Yuma County, where he served as both Associate Presiding Judge and Presiding Judge.
Andrew received his J.D. from Northwestern University School of Law in 1990. He began his legal career in Phoenix, Arizona, practicing in the field of civil litigation. In 1994, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999-2001. Justice Gould has previously served on the Arizona Supreme Court Commission on Technology, as the President of the Arizona Judges’ Association, and has taught at the Judicial Conference and New Judge Orientations.
Arizona law affords students forced to quarantine by their schools for COVID-19 the right to court-appointed counsel at the expense of the state, according to Attorney General Mark Brnovich. In an opinion issued last Friday, Brnovich responded to an inquiry from State Senator Kelly Townsend (R-Mesa) on the issue.
The attorney general explained that schools relying on county health department quarantine or isolation protocol must also adhere to the requirement of counsel outlined in the same law:
“The court shall appoint counsel at state expense to represent a person or group of persons who is subject to isolation or quarantine pursuant to this article and who is not otherwise represented by counsel,” reads the law. “Representation by appointed counsel continues throughout the duration of the isolation or quarantine of the person or group of persons. The department or local health authority must provide adequate means of communication between the isolated or quarantined persons and their counsel.”
The law also stipulates that legal counsel must be acquired at state expense and last the duration of the isolation or quarantine.
In reference to mandatory quarantines for students exposed to COVID-19, Brnovich referenced the authority cited by the Maricopa County Department of Public Health (MCDPH) in their letter to communities in August. The letter cited MCDPH authority for student quarantines came from a statute which, in turn, cited the two statutes outlined by Brnovich granting legal counsel.
“When a county health department or public health services district is apprised that infectious or contagious disease exists within its jurisdiction, it shall immediately make an investigation. If the investigation discloses that the disease does exist, the county health department or public health services district may adopt quarantine and sanitary measures consistent with department rules and sections 36-788 and 36-789 to prevent the spread of the disease. The county health department or public health services district shall immediately notify the department of health services of the existence and nature of the disease and measures taken concerning it.”
Brnovich concluded that parents may seek a court order to lift the quarantine immediately, which would initiate the appointment of state-provided legal counsel to the student. A court would have 24 hours to hear the case, and 48 hours to submit its ruling. Counsel would also be available for parents petitioning to change quarantine conditions. In that case, a court would have 10 days to hold a hearing.
“[U]nder MCDPH’s quarantine requirements, which appear to be issued pursuant to A.R.S. § 36-788, MCDPH, through public schools, is mandating student quarantines without a court order. Once a parent or guardian receives the MCDPH letter requiring quarantine, the parent or guardian is entitled […] to immediately seek a court order lifting the quarantine,” wrote Brnovich. “And once a parent or guardian requests court review, A.R.S. § 36-789(M) requires the court to appoint counsel for the student at state expense. Similarly, if a parent or guardian files an action on behalf of the student challenging the conditions of a quarantine, the court is required to appoint counsel for the student at state expense.”
The attorney general noted that Arizona law doesn’t necessarily define “state expense.” He opined that the cost of counsel could fall on county health departments.
That wasn’t Kelly’s only request for Brnovich’s legal opinion as of late. The state senator requested Brnovich’s opinion on religious tests and denial of religious exemptions by employers.
An answer on Kelly’s latest question has yet to be published.