The Phoenix Union High School District believes a new Arizona law banning charter and public schools from implementing mask mandates does not take effect until Sept. 29. That is why its district board implemented a policy starting Aug. 2 requiring the wearing of masks on school property.
But Douglas Hester, a science teacher who works for Phoenix Union, contends the district’s policy violates the same new law, which included a June 30 retroactive effective date. So he is seeking a temporary restraining order (TRO) from Judge Randall Warner of the Maricopa County Superior Court to half the policy.
The new law is contained in the K-12 Education budget reconciliation bill, which Hester’s attorney, Alex Kolodin, says is not subject to a normal 90 day waiting period before becoming effective. That means the June 30 retroactive date is currently in effect and districts like Phoenix Union are breaking the law with their mandates.
Part of the problem, Kolodin contends, is that school officials failed to take action to clarify the correct and legal effective date of the new law before imposing the mask mandate.
“You don’t ask for forgiveness instead of permission when you’re the government. You’ve got to do things right. You should be held to a higher, not a lower standard,” Kolodin told KFYI’s James T. Harris on Friday morning, adding that the retroactive date needs to be respected.
“The government can always find reasons for the great good to violate the law,” Kolodin said. “The most dangerous times in our history has been times when the government has done just that and said, ‘hey these laws are good in normal times, these laws are good in peace time, these laws are good when there’s not a time of crisis, but oh, just for the moment we have to disregard the law.’”
Kolodin, a former history teacher, also told Harris during the interview that he is “very concerned” with ensuring the past does not repeat itself, as has occurred at times in America’s history when the government has ignored laws.
A few hours later, Kolodin was in Judge Randall Warner’s courtroom at the Maricopa County Superior Court arguing in support of the TRO to put the brakes on Phoenix Union’s mandate. Warner announced he will rule on Hester’s request next week. The judge will also issue a ruling on a motion to dismiss filed by an attorney for Phoenix Union.
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In the meantime, several state Republican lawmakers continue to pressure on Gov. Doug Ducey to withhold federal funding for districts like Phoenix Union which implement mask mandates. Earlier this week they sent a letter calling on the governor to make more Empowerment Scholarship Accounts (ESAs) available and pursue court action against districts which fail to follow the new law.
While the central question in Hester’s lawsuit is when the no-mask mandate law takes effect, another lawsuit filed this month argues the effective date is irrelevant because the law itself is unconstitutional.
According to the Arizona School Boards Association, the Arizona Education Association, the Children’s Action Alliance, and the Arizona Advocacy Network, several non-budgetary provisions and new laws contained in some of the 11 recently passed budget bills should be declared unconstitutional.
The plaintiffs are challenging not only the mask mandate ban in the K-12 budget bill, but also amended and new laws on how Arizona’s 15 county recorders and the Arizona Secretary of State conduct elections. The lawsuit also contends operators of private schools are free under the new law to require mask-wearing, creating an equal-protection violation of both Arizona’s and the United States’ constitutions.
Judge Katherine Cooper of the Maricopa County Superior Court will preside over that constitutional challenge case, which has not yet been set for an initial hearing.