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.
Flagstaff Unified School District (FUSD) will implement a mask mandate in defiance of state law. The FUSD Governing Board passed the motion unanimously during Tuesday’s meeting.
FUSD took a similar stance to other school districts implementing a mask mandate, rationalizing that the law doesn’t take effect until September 29, notwithstanding the retroactive clause.
FUSD Superintendent Michael Penca said that he’d struggled with the decision to reinstate a mask mandate.
“Over the last week I’ve asked myself, ‘If the Arizona state law, which prohibits school districts from requiring masks, was not in place, would FUSD be requiring masks?’ With the information that we have about the high rates of community transmission, and recommendations by the CDC and health officials, I believe the answer would be a resounding yes,” said Penca. “With legal guidance from our district attorney tonight regarding the date that this law goes into effect, the FUSD Governing Board has an opportunity to reconsider its previously adopted requirement regarding mask use, which encourages but not requires mask use. In order to balance the benefits of in-person instruction with the health and safety of its students, staff, and our communities.”
However, not all board members appear to have shared Penca’s indecision on mandating masks. Board member Christine Fredericks introduced the motion, spelling out her email and daring parents opposed to the mask mandate to send her hate mail. Fredericks read out loud the proposed mask mandate in full.
“Send me your hate mail. Make sure you spell my name correctly so I get it,” said Fredericks.
Despite the rationale from FUSD and other schools like Phoenix Union High School District (PXU) that Arizona law requires 90 days from the end of the legislative session in order for a law to take effect, Arizona Governor Doug Ducey has repeated that the mask mandate ban is in effect.
“Arizona does not allow mask mandates, vaccine mandates, vaccine passports or discrimination in schools based on who is or isn’t vaccinated,” said Ducey. “We’ve passed all of this into law, and it will not change.”
Arizona does not allow mask mandates, vaccine mandates, vaccine passports or discrimination in schools based on who is or isn’t vaccinated. We’ve passed all of this into law, and it will not change.
Arizona House Republicans concurred with Ducey’s assessment. Through freshman State Representative Jake Hoffman (R-Phoenix), Republicans issued a statement on Wednesday encouraging state officials to hold local governments accountable for breaking the law.
House Republicans encouraged Ducey to withhold federal funding from school districts not complying with the law, authorize temporary Empowerment Scholarship Accounts (ESAs) for students in schools breaking state law, send notices to all families attending schools non-compliant with the law informing them of the law, and take legal action against the districts.
“Under Arizona’s constitutional form of government, local governments do not have the authority or power to usurp state law simply because they disagree, yet that is precisely the kind of illegal activity in which many local governments are presently engaged. The Arizona legislature, with the Governor concurring, very intentionally enacted the laws at hand to protect Arizonans and Arizona children from the threat of government mandating them to wear a mask or be injected with a vaccine. Additionally, the legislature very thoughtfully attached a retroactivity clause to the law, so that there would be clear and consistent application of the statute for families and children throughout Arizona,” wrote Hoffman. “It borders on anarchy and destabilizes the very foundation of our society to have local governments effectively refusing to comply with the law. It must not be allowed to stand. Any local government that willfully and intentionally flaunts state law must be held accountable.”
Parent commentary on the mask mandates during the meeting was divided.
Parents in favor of the mask mandates cited their fear that their children would be hospitalized and suffer from long-term effects due to COVID-19. Some said that even one death was one death too many.
Parents against the mask mandates said that the fears over the Delta variant and any COVID spread is overblown. They cited that COVID-19 most greatly impacts the overweight, sickly, and elderly. They also questioned the efficacy and safety of long-term mask-wearing.
The private school Brophy College Preparatory (Brophy) announced Wednesday that it would mandate the experimental COVID-19 vaccine. Their take on the mandate mirrored President Joe Biden’s vaccine mandate for federal employees and contractors – if an individual isn’t fully vaccinated, they must adhere to masking restrictions, social distancing measures, and frequent testing.
In a letter to parents, Brophy Principal Bob Ryan explained that there wouldn’t be a hybrid learning option for students. Therefore, students needed to adjust accordingly to create a safe learning environment. According to Ryan, Brophy students and faculty may choose to not be vaccinated; however, they would have to be tested regularly and be prohibited from overnight retreats and school travels outside of the metro area.
“Over the last six months, it has become increasingly clear that the most effective way to contain the spread of the virus is to have a vaccinated community,” wrote Ryan. “Therefore, effective September 13, every student, teacher, and staff member will need to have proof of vaccination on file with the school or get tested for COVID regularly. Additionally, effective Monday, August 9, and for the foreseeable future, any student who wishes to participate in overnight retreats or any school-related travel outside of the Phoenix metro area will be required to have proof of vaccine on file.”
Brophy will resume classes next Thursday.
Earlier this summer, Governor Doug Ducey signed the bill prohibiting K-12 mask and vaccine mandates into law. Both of Ducey’s sons are Brophy graduates.
It is unclear whether private schools like Brophy are exempt from the law. The COVID-19 vaccine is still under emergency use authorization (EUA) only from the FDA.
A Maricopa County Superior Court judge did not rule on the Phoenix Union High School District’s (PXU) mask mandate during an emergency hearing Wednesday. The Kolodin Law Group filed on behalf of PXU biology teacher Douglas Hester on Monday, requesting an injunction against PXU’s mandate issued several days earlier.
PXU’s superintendent and governing board members were named as defendants in the lawsuit.
According to the new state law, no schools may require face coverings or the COVID-19 vaccine as a condition of in-person learning. The lawsuit pointed out that the law includes a retroactive clause for the mask and vaccine prohibition. Therefore, those parts of the law were expected to take effect on June 30.
Alexander Kolodin with Kolodin Law Group told AZ Free News that this lawsuit will determine whether government is bound to the law. He added that this case was an important determinant in restoring people’s faith in their governing system. According to Kolodin, Hester wasn’t the only teacher that voiced concern over the mask mandate.
“This lawsuit is simply about whether the government needs to follow the law or whether the government is above the law,” explained Kolodin. “The people’s duly elected representatives arrived at the idea that in the case of schools, the tradeoff between mandating masks and personal liberty was in favor of not mandating masks. That was the voice of the people.”
Kolodin credited State Representatives Jake Hoffman (R-Queen Creek) and Jacqueline Parker (R-Mesa) for their hand in the legislation prohibiting K-12 mask and vaccine mandates.
“Obviously the people of Arizona have been applying a lot of pressure to elected officials concerning these pandemic-mandated countermeasures,” said Kolodin. “[These] two state legislators worked with their constituents to get legislation passed to try to balance the interest of people and their liberty.”
Phoenix Union High School District (PXU) announced on Friday that they would ignore state law and implement a mask mandate, effective Monday – the first day of classes. PXU blamed the increased spread of the Delta variant for the restored mask mandate. The district said it would prioritize the new CDC guidance over the law.
“We teach and trust science, follow guidelines and recommendations from health experts, and use health data to drive our decisions. The science is clear that the best way to protect yourself and your family from COVID-19 and known variants is to get vaccinated,” announced PXU. “In an effort to protect our staff, students, and community, PXU has a good faith belief that the following guidance from the CDC and other health agencies regarding mitigation strategies is imperative. Therefore, Phoenix Union will begin the school year on August 2 enforcing our existing Board-adopted mask requirement of universal indoor masking only, regardless of vaccination status.”
In a subsequent interview, PXU Superintendent Chad Gestson echoed the rationale offered in the announcement letter. He asserted that science was more important than the law.
“We’ve been faced with so many challenging decisions,” said Gestson. “And I think what’s been most challenging is that we are institutions that teach science and trust science and from time to time are forced to make a decision that maybe conflicts with state law or state mandate or an executive order in order to follow science and medical guidelines. We have said from day one that we would always prioritize the health and safety of our community.”
The state ban on mask mandates was effective as of June 30, per a retroactivity clause. Ducey’s spokespersons responded in emails that PXU’s mandate was unenforceable.
Governor Ducey believes the decision by Phoenix Union requiring masks has no teeth. It’s not allowed under Arizona law. It’s unenforceable. Arizona is not anti-mask, we’re anti-mask mandate. As the governor has often said, mask usage is up to parents. If a parent wants their child to wear a mask at school, they are free to do so. This is not a state decision. Ultimately, this is about personal responsibility and parental choice – something Arizona has long-supported. School administrators should be doing everything they can to encourage eligible students and staff to get vaccinated, not break state law. Health professionals in Arizona and across the country have made it clear: our kids are safe in the classroom. We need to keep students in their classrooms, and the governor wants to ensure there are limited disruptions when it comes to their education. Arizona is not going to mandate masks in any learning environment.
On Tuesday, Ducey responded to the updated CDC guidance recommending that everyone wear masks, including fully vaccinated individuals. He reiterated that Arizona law doesn’t allow mask mandates, vaccine mandates, vaccine passports, or any level of discrimination in schools based on vaccination status. Ducey called the CDC’s updated guidance an example of the Biden Administration’s failure in handling the COVID-19 pandemic.
“Public heatlh officials in Arizona and across the country have made it clear that the best protection against COVID-19 is the vaccine,” asserted Ducey. “Today’s announcement by the CDC will unfortunately only diminish confidence in the vaccine and create more challenges for public health officials – people who have worked tirelessly to increase vaccination rates.”
Ducey has yet to issue a formal statement on PXU’s mask mandate.
Corinne Murdock is a contributing reporter for AZ Free News. In her free time, she works on her books and podcasts. Follow her on Twitter, @CorinneMurdock or email tips to firstname.lastname@example.org