On Monday, a Maricopa County Superior Court judge rejected a request by the Phoenix Union High School District to dismiss a lawsuit brought by Science teacher Douglas Hester. Hester is suing the District for its decision to buck Arizona law and institute a mask mandate.
Maricopa County Superior Court Judge Randall indicated that he believes Legislature was within its rights to ban school districts from mandating masks but that the law will not take effect until September 29th.
“Plaintiff argues in Reply that the District’s mask policy violates existing law even without A.R.S. § 15-342.05. It does not. Arizona law gives school boards the authority to protect students and ensure the orderly operation of schools, subject to statutory limitations imposed by the Legislature. A.R.S. § 15-341(A)(I); see also Pendley v. Mingus Union High Sch. Dist. No. 4 of Yavapai City., 109 Ariz. 18, 22, 504 P.2d 919, 923 (1972) (“There must, of course, be some authority to operate a school on a day-to-day basis and this statute amply supports the authority of the school board to pass reasonable rules and regulations for the orderly operation of the school.”); Kelly v. Martin, 16 Ariz. App. 7, 9, 490 P.2d 836, 838 (1971) (“the legislature has delegated to the governing board of a high school district the control of the affairs of the district, subject to certain statutory controls”).
As for the Motion To Dismiss, the Court found that the District’s claim that the lawsuit is premature does not hold water. He accepted Hester’s attorney’s argument plaintiff’s argument that he does not have to wait until A.R.S. § 15-341.05 becomes effective to challenge a policy that violates it.
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,” the Arizona Daily Independent previously reported.
On the subject of the Temporary Restraining Order, the Court found:
A.R.S. § 15-342.05 was enacted during the COVID-19 pandemic to prohibit school districts from requiring students and teachers to wear masks. Phoenix Union High School District cites no legal authority that this statute is beyond the Legislature’s power. Indeed, Arizona law expressly limits school districts’ authority to policies that “are not inconsistent with law.” A.R.S. § 15-34l(A)(l).
But A.R.S. § 15-542.05 has not yet become effective. Under Arizona law, new laws are effective 90 days after the legislative session ends, which is September 29 this year. Ariz. Const. Art. IV, Pt. 1, § I. Although there is an exception for emergency measures, they require a two thirds vote and this statute was not approved by a two-thirds majority.