PHOENIX (3TV/CBS 5/AP) – The school district that chose to go against state law by requiring masks at school is now facing the first official legal challenge to its policy. On Monday, the same day kids in Phoenix Union High School District went back to class, Metro Tech High School biology teacher Douglas Hester filed a lawsuit against the district.
“What is important is making sure that the government is not above the law,” said Hester’s attorney Alexander Kolodin. “We’re just asking the court to say, one, the policies and procedures that the Phoenix Union High School District have enacted are unlawful and they can’t do it anymore.” The suit doesn’t (and can’t) seek monetary damages (although it does request attorneys’ fees).
A new law, which Gov. Doug Ducey signed on June 30, states “a school district or charter school may not require a student or teacher to receive a vaccine for COVID-19 or to wear a face-covering to participate in in-person instruction.” Phoenix Union High School District, which has about 28,000 students and 4,000 employees, announced a mask requirement for teachers and students last Friday.
The district cited the spread of the Delta variant as the reason for its decision. As of Friday, the district says all 32 of the ZIP codes in its area have high/substantial spread of the virus.
“[The law is] pretty clear. It’s right there in the black letter. There’s not a lot of legal interpretation needed as to what it says,” Kolodin said.
On the day the mask mandate was announced, PXU Superintendent Chad Gestson said he had no choice but to enforce what medical experts say will keep students safe. “What legal implications this may have, that’s not my responsibility,” he said. “My responsibility is to educate our kids.”
In an email on Tuesday district spokesman Richard Franco sent the following statement in an email to Arizona’s Family:
“Thank you for your continued concern for the health of our community. We are aware of the court filing. 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.”
Kolodin says it was especially improper of the district to announce the mandate on a Friday – less than one business day before the start of the school year.
“I think that’s intentional. They didn’t want to give a lot of time for this challenge to be brought. It’s sneaky, right?” he said.
The Phoenix Union High School District is currently the only school district in the state with an indoor mask mandate.
Attorneys for the school district have been ordered to make their case at a hearing Wednesday in Maricopa County Superior Court. The court proceedings could be a test case for Arizona school districts determined to defy Republican Gov. Doug Ducey.
A second school, Phoenix Elementary, approved a mandatory mask rule Monday regardless of the vaccination status of students, staff and visitors. The only exceptions will be for special medical reasons.
“We know that our children learn best in person and we will implement mitigation strategies that help to minimize the spread of illnesses, reduce the need for quarantining, and avoid classroom and school closures,” a district statement said.
Phoenix Elementary has 14 schools primarily located in central Phoenix. The district’s more than 5,000 students start classes on Thursday.
It goes against a new law from Gov. Doug Ducey that bans schools from requiring masks on campus.
The state’s prohibition against mask mandates by school districts was included in budget legislation enacted in late June. The legislation doesn’t take effect until Sept. 29, though it included a provision saying the prohibition is retroactive.
It’s not clear whether the state’s prohibition is now in force. A legislator who supports the prohibition has asked government lawyers to say when it takes effect.
In other developments:
— Virus-related hospitalizations in Arizona have more than doubled over the past month, according to data reported Tuesday by state health officials.
There were 1,207 COVID-19 patients occupying hospital beds as of Monday, up from 520 a month earlier on July 2. The state reported 1,974 additional COVID-19 cases and 30 more deaths, increasing the pandemic totals to 933,361 cases and 18,282 deaths.
— The chief clinical officer at Banner Health, the state’s largest hospital system, implored the public Tuesday to get vaccinated. Dr. Marjorie Bessel warned that case surges like those seen in July 2020 and in January are a strong possibility.
“The slope of what we’re starting to experience is starting to look very, very close to the exponential growth we experienced during those two very, large surges,” Bessel said during a virtual press conference.
“Please haul your masks out of retirement for the time being.”
Banner Health also announced it would tighten visitor restrictions due to increased virus spread. The restrictions include only allowing one or two visitors per patient per day, depending on location. Also, visitors must be at least age 12 and can’t have or be suspected of having COVID-19.
— Yavapai County announced Monday it will again close its public buildings to the public, starting Thursday, due to rising COVID-19 infections and hospitalizations and the county’s low vaccination rate, The Daily Courier reported.
As during previous closures during the pandemic, county offices and services will continue to operate though public access will be restricted, Board of Supervisors Chairman Craig Brown said.
Copyright 2021 KPHO/KTVK (KPHO Broadcasting Corporation). All rights reserved.