Attorneys for a science teacher with the Phoenix Union High School District will have a chance next week to argue why the teacher believes the district violated state law by implementing a mandatory face covering policy that took effect Monday.
Douglas Hester is one of more than 2,700 employees of Phoenix Union which is requiring all students, staff, and visitors to utilize a face covering when indoors, regardless of a person’s vaccination status. The district is comprised of 20 high schools serving more than 27,000 students in grades 9-12.
A similar mandate was approved by the Tucson Unified School District on Wednesday during an emergency meeting. TUSD serves about 47,000 students who go back to school Thursday.
Hester, who works at Metro Tech High School, wants a temporary restraining order enjoining Phoenix Union from enforcing the new mask mandate. He argues that a public school district’s governing board has a duty is to implement and enforce policies and procedures “that are not inconsistent with law,” and that Phoenix Union’s new mask policy is “an illegal mandate.”
But first, his attorneys Alex Kolodin and Christopher Viskovic must convince Judge Randall Warner of the Maricopa County Superior Court that state law currently prohibits public school districts from implementing such mask mandates.
Warner met briefly Wednesday for a show cause hearing with Hester’s attorneys and Mary O’Grady, an attorney with Osborn Maledon representing Phoenix Union. The judge set Aug. 13 for oral arguments on the teacher’s injunction request. Until then, Phoenix Union can keep its mandatory mask policy in place.
At issue is a new state statute, ARS 15-342.05, created when Gov. Doug Ducey signed the K-12 education budget bill (HB2898) on June 30. The law states a school board “may not require the use of face coverings by students or staff during school hours and on school property” and a district cannot require students or teachers “to wear a face covering to participate in in-person instruction.”
Many bills do not take effect until 90 days after the legislative session ends, which would give the new statute an effective date of Sept. 29.
However, Hester’s lawsuit against Phoenix Union, Superintendent Chad Geston, and the district’s governing board members contends ARS 15-342.05 is in effect now because a different part of HB2898 refers to a retroactive effective date of June 30 for the statute.
Phoenix Union contends the new law does not take effect until late September, and that in the meantime school officials are following public health recommendations the best possible to keep ahead of COVID-19. The Centers for Disease Control and Prevention (CDC) currently recommend the wearing of masks when indoors in public places, even if someone is vaccinated.
“We stand behind our decision to require masks at this time and remain steadfast in our commitment to do all we can to protect our staff, students, families, and broader community,” according to Richard Franco, a Phoenix Union spokesman.
One person who believes the move by Phoenix Union and others is “unenforceable” is the governor. Ducey’s office has not said whether he will get involved in any legal challenges, but the governor previously said what Phoenix Union is doing is “not allowed under Arizona law.”
The new law does not interfere with a student or a teacher being able to choose to wear a mask.
On March 11, 2020, Ducey issued a Declaration of Public Health State of Emergency which remains in effect. The declaration states that “coordination of all matters pertaining to COVID-19 are of statewide concern rather than local concern unless otherwise determined by the director of the Arizona Department of Health Services.”