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Phoenix School District Says Suit Over Mask Mandate Is Moot

Angela Gervasi

A Phoenix school district wants a lawsuit over its mask mandate, which could be a test case for other districts, dismissed, arguing that a state law banning such policy isn’t in effect yet.

A preliminary hearing was held Wednesday in the case of Douglas Hester, a biology teacher who filed a lawsuit against the Phoenix Union High School District. Hester is asking a Maricopa County Superior Court judge to grant a temporary restraining order on the measure, calling it unlawful.

The district’s superintendent and governing board are also named in the lawsuit. They voted last week to make masks mandatory indoors, becoming the first school district in Arizona to defy the state. Budget legislation Gov. Doug Ducey signed in June includes a state prohibition against school mask mandates during the COVID-19 pandemic. The legislation doesn’t take effect until Sept. 29, though it included a provision saying the prohibition is retroactive.

“The sole legal issue for right now is the law is not in effect,” said Mary O’Grady, the attorney representing the school district.

District officials haven’t decided whether they will push to maintain the mandate after September, O’Grady said.

“I don’t know what the factual situation will be Sept. 29 when the law takes effect. This is based on what’s going on with the pandemic and, as we all know, those things change quickly,” O’Grady said.

Alex Kolodin, the attorney representing Hester, said the real issue is whether the district can defy state statute, especially if the district intends to keep doing it down the road.

“In public statements, defendants have also claimed that they’re going to maintain their masking policies until the CDC changes its guidance on the state of the pandemic,” Kolodin said.

Judge Randall Warner scheduled both sides to give full arguments on Aug. 13.

Since Phoenix Union’s decision, four more school districts have gone against the law. Tucson Unified School District, the city’s largest, voted Wednesday during an emergency meeting to require masks on campus.

District Superintendent Gabriel Trujillo called the board’s decision “a strong exercise in local control.”

Three districts in Phoenix did the same earlier in the week.

Ducey’s office has called these mandates unenforceable. Representatives for him did not immediately respond to a message seeking comment.

The Republican governor continues to draw criticism over the barring of masks as Arizona’s virus caseload rises. The state dashboard on Wednesday reported 2,286 additional COVID-19 cases and seven more deaths, increasing the pandemic totals to 935,647 cases and 18,289 deaths. The number of virus-related hospitalizations rose to 1,252 as of Tuesday.

Public health experts say the surging number is most likely caused by the highly transmissible delta variant,

Meanwhile, vaccinations in Arizona have inched slightly upward. More than 6.8 million doses have been administered to date. Over 3.7 million people — or 52.7% of the eligible population — have received at least one dose. Over 3.3 million people are fully vaccinated. ___ Associated Press writer Paul Davenport contributed to this report.