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.
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