What would it take to rescind law prohibiting school mask mandates? - AZEdNews
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What would it take to rescind law prohibiting school mask mandates?

Phoenix Union High School District Students Wear Masks While On Campus. Photo Courtesy Phoenix Union High School District

Part 4 of the Back to school during a COVID surge series.

With eight public school districts, all three state universities, and Maricopa Community Colleges now requiring face masks in classrooms, what would it take to rescind the recent law prohibiting schools from mandating masks on campus?

School districts in Arizona, Florida, Texas and other states are increasingly defying laws and orders prohibiting school mask mandates, drawing attention from the White House and leading to lawsuits and court decisions that have allowed school mask mandates in other states, The Associated Press reports.

On Thursday, Aug. 12, Arizona School Boards Association is named lead plaintiff in a lawsuit against the State of Arizona in Arizona Superior Court in Maricopa County seeking declatory and injunctive relief against the prohibition of school mask mandates included in the budget bill.

“ASBA stands for local control; we do not want to mandate masks for all Arizona school districts; we simply want those districts and their locally elected school board to be able to decide what’s best for their students and staff,” said Dr. Sheila Harrison-Williams, executive director of ASBA. “We will keep our members updated throughout this process and continue to advocate and represent public school districts across Arizona.”

The lawsuit cites the Arizona Constitution which says laws passed by the Arizona Legislature can cover only one subject and their contents must be properly noticed in the title of the bill.

The lawsuit notes that the title of House Bill 2898, which prohibits public school mask mandates but not private school ones, mentions provisions “relating to kindergarten through grade twelve budget reconciliation,” but the bill’s content includes substantive policy provisions that have nothing to do with the budget.

The bill approved by the Arizona Legislature and signed by Gov. Doug Ducey prohibits a “a county, city, town, school district governing board or charter school governing body” from “requir[ing] the use of face coverings by students or staff,” and prohibits school districts and charter schools from “requir[ing] a student or teacher to receive a vaccine for COVID-19 or to wear a face covering to participate in in-person instruction.”

“The Legislature passed this bill in the face of a public health crisis, when the COVID-19 virus is mutating and spreading rapidly across the country and this state, including among children. 8. This legislation unfairly discriminates against Arizona’s public and charter school students as compared to their private school peers regarding their right to a safe education, a fundamental right under Arizona law,” the lawsuit states.

Along with ASBA, other plaintiffs named in the lawsuit include Children’s Action Alliance, Arizona Education Association, Arizona Advocacy Network, Steve Gallardo, Phoenix Union High School District Governing Board Member, Lela Alston, president of the Phoenix Union High School District Governing Board, David Lujan, Beth Lewis, Raquel Mamani, Justin Monnet, Corina Ontiveros, Mary Catherine Harrel, M.D., Ruth Franks Snedecor, M.D,. Sharon Kirsch and Richard Newhauser.

The lawsuit was filed Aug. 12 by attorney’s Roopali H. Desai, D. Andrew Gaona and Kristen Yost with Coppersmith Brockelman PLC and attorney Danil J. Adelman with Arizona Center for the Public Interest.

Earlier this week, Chris Kotterman, director of governmental relations for Arizona School Boards Association, had this to say on how the law prohibiting school mask mandates might be suspended or rescinded.

“To completely rescind the law, an act of the Legislature is required, so yes, a special session of the Legislature is needed,” Kotterman said.

“Under the emergency powers granted him during the declared COVID public health emergency, we believe the Governor could issue an Executive Order that temporarily suspends enforcement of the statute, giving districts permission to issue the mandates. That power would end when the public health emergency is terminated,” Kotterman said.

This week, Banner Health reported an increase in hospitalizations for children with COVID-19.

Also, the City of Phoenix said COVID-19 testing is surging among school-age children.

With that and the surge in COVID-19 among kids and young adults, is there a possibility that the law prohibiting schools from mandating masks will be rescinded or temporarily suspended?

“We believe the Legislature is unlikely to rescind the mask mandate. The politics are too entrenched at this point for those who made it an issue to go back on it,” Kotterman said.

“Therefore, it’s up to the Governor to do the right thing here and restore local control. So far, he hasn’t shown any willingness to do so, which is unfortunate,” Kotterman said.

Today, Republican state legislators have signed a letter to Gov. Doug Ducey asking him to withhold federal funding from any school district not complying with the state law prohibiting school mask mandates, authorizing vouchers or Empowerment Scholarship Accounts to be offered to students in those districts, sending notices to students’ families in those districts that the state has banned mask mandates and letting them know about alternative school options and initiating legal action against school districts defying the state law.

In response to the letter, the Governor’s office issued this statement, “We haven’t reviewed it yet, but we’ve been looking at ideas on this topic. The governor is anti-mandate, but pro-vaccine and pro-parental decision on masks and other measures. Parents should decide what’s best for their kids, and those are the kind of policies he will be supporting.”

What’s happened so far

The law is part of the budget package approved by the Arizona Legislature, was signed by Gov. Doug Ducey, and it goes into effect on Sept. 29, 2021.

Phoenix Union High School District was the first district to let families know it would require students, staff and visitors to wear masks while in school buildings to protect community members’ health since COVID-19 transmission rates are high in the neighborhoods it serves as the surge fueled by the delta variant continues after it “heard from our staff, students, and families that they want us to realign our mitigation practices with the guidelines and recommendations of national and local health agencies.”

“We made a commitment from day one, minute one, that we would do all we can in our power and control to protect the health, safety and wellness of our staff, students and community,” Phoenix Union Supt. Dr. Chad Gestson said. “We’re aware of the spread. We’re also aware of the mask mandate ban, but our commitment is to our local community and we’re going to hold true to that. We know that masks, along with vaccines and other mitigation measures work, and so masks in Phoenix Union are required.”

Since then Phoenix Elementary School District, Tucson Unified School DistrictOsborn Elementary School DistrictRoosevelt Elementary School DistrictWashington Elementary School DistrictCreighton Elementary School District, and Flagstaff Unified School District have followed suit, with many noting that many of the children they serve who are under 12 years old remain ineligible for the COVID-19 vaccination.

Last week, Metro Tech High School biology teacher Douglas Hester’s lawsuit over Phoenix Union High School District’s mask mandate was heard in Maricopa County Superior courtroom, where Phoenix Union’s attorney moved to dismiss the case, and the next hearing in the case will be held at 9 a.m. Aug. 13.

Littleton Elementary School District, Scottsdale Unified School District and Hamilton High School in Chandler Unified School District have all reported outbreaks amongst students and staff and have sent students and staff home and quarantined classrooms.

That has led some schools to enhance their current COVID-19 prevention strategies by strongly suggesting masks and increasing social distancing and notifying students’ families about the changes.

Now, Canyon View High School‘s football program in Waddell joins Tolleson Union High School District’s West Point High School‘s football team and Higley High School‘s football team in Gilbert for a pause in activity due to people in the football programs testing positive for COVID-19

Earlier this week, University of Arizona President Dr. Robert C. Robbins said, “The ideal would be that we could require everyone to be vaccinated, we could require everyone to cover their face, we could require many things that other places are doing, but we cannot do (that) here because of state law.”

Then Wednesday evening after Arizona State University and Northern Arizona University announced masks were required in classrooms, University of Arizona said it would require masks indoors as students return to campus amid a surge in COVID-19 statewide.

“Based on the current health conditions and aligned with CDC guidance as well as our commitment to deliver in-person learning at the University of Arizona, we will require face masks be worn in all indoor spaces where it is not possible to adequately and continuously maintain social distance,” President Robbins said in an email to students and staff Wednesday evening.

Earlier on Wednesday, Arizona State University said masks will be required in classrooms, labs and “in close-quarter environments where physical distancing may not be possible.”

On Wednesday afternoon, Northern Arizona University said it will require masks in classrooms, labs as well as in indoor and outdoor spaces where social distancing cannot be done.

Thursday morning, Maricopa Community Colleges announced that they are requiring face covering to be worn indoors in all their facilities and offices.

“The Maricopa Community Colleges’ goal throughout the pandemic has been to protect our community’s health and wellbeing,” said Interim Chancellor Dr. Steven R. Gonzales. “Requiring our students, faculty, and staff to wear face coverings is another step in the right direction for our Colleges to begin the fall semester safely. I want to thank our employees and students who have continued the hard work of keeping themselves and our Maricopa community safe.”

Because this requirement applies to all individuals regardless of vaccination status, it is in line with both the Governor’s Executive Order (2021-15) and Arizona Revised Statutes 15-1650.05, which will go into effect on September 29, 2021. 

Maricopa Community Colleges said it believes this decision will provide the best chance to maintain in-person learning experiences for students and that it will monitor evolving mask guidelines and update students and staff of any changes as the fall semester begins.

What’s next?

As of Wednesday, no Arizona schools or education advocates have filed a lawsuit to overturn the law prohibiting school mask mandates in the budget package.

“Right now, we are in a wait and see mode to see where there may be an opportunity that works for us. Because we’re not a school district, we can’t just run out and sue the state. ASBA supports efforts to determine with finality what the applicability of the law is at this point, because districts need to know the absolute limits of their authority right now,” Kotterman said.

“ASBA opposed the statute in the first place, while also recognizing that the Legislature has the authority to make and enforce bad laws. This is one such law,” Kotterman said.

That changed on Thursday, Aug. 12, when Arizona School Boards Association was named lead plaintiff in a lawsuit against the State of Arizona in Arizona Superior Court in Maricopa County seeking declatory and injunctive relief against the prohibition of school mask mandates included in the budget bill.

“ASBA stands for local control; we do not want to mandate masks for all Arizona school districts; we simply want those districts and their locally elected school board to be able to decide what’s best for their students and staff,” said Dr. Sheila Harrison-Williams, executive director of ASBA. “We will keep our members updated throughout this process and continue to advocate and represent public school districts across Arizona.”

An effort to block enforcement of a law banning mask mandates in Texas was successful earlier this week.

Throughout this summer and during back to school, Arizona school district leaders and education advocates have talked with Gov. Ducey and other elected leaders about the situations they are dealing with in their schools and what would help them protect their students, staff and community members during this surge in COVID-19 cases.

“Districts should have the ability to follow public health guidance to keep students and staff safe without having to run afoul of the law. Those two things should never be in conflict. Yet, here we are. So far the governor hasn’t shown any interest in directly challenging districts who have imposed mandates, but that may not last,” Kotterman said.

Other related articles:
Daily schools update: The latest on mask mandates & teacher lawsuit
Daily schools update: COVID-19 cases surge in AZ youth
Daily schools update: Doctors recommend masks for students 2 years & up at school
Daily schools update: Arizona Lawmakers to Ban Mask Requirements in Schools
How COVID-19 vaccinations for ages 16 and up could affect AZ high schools
COVID-19 cases rise before Thanksgiving adding to school and hospital leaders’ concerns

How & why teachers discuss trial with students; Schools keep masks after Gov. rescinds mandate
Masks are still required in all schools; Video: Dr. Christ’s news conference today
Arizona School Safety Task Force releases final report and model school safety plan
School leaders ask people to limit activities to prevent spread of COVID-19 in schools
School nurses play a key role in COVID-19 safety plans
How benchmarks, health advice, insurance guide schools’ re-opening plans
School boards face tough decisions on when to re-open schools for in-person classes

Last week, Arkansas Gov. Asa Hutchinson said he would like to reverse the law he signed months ago banning state and local mask mandates so schools could have the option to require masks when children go back to school.

“In hindsight, I wish that it had not become law. But it is the law, and the only chance we have is either to amend it or for the courts to say that it has an unconstitutional foundation,” Gov. Hutchinson said during a news conference.

Gov. Hutchinson called for a special session for the state legislature to change the law.

Yesterday, Kentucky Gov. Andy Beshear mandated masks in K-12 schools regardless of vaccination status as the delta variant is causing COVID-19 cases and hospitalizations to surge in the state, The Associated Press reports.

Gov. Beshear said he want to avoid students moving to distance learning like last year as COVID-19 cases are on the rise and while children under 12 years old aren’t eligible yet for the COVID-19 vaccine.

“We would be sending them to the deadliest version of a chicken pox party imaginable by sitting them in a classroom every single day without a mask, without being vaccinated, facing the delta variant,” Gov. Beshear said at a news conference.

As the COVID-19 surge continues, the Arizona Legislature or Gov. Ducey may reconsider the law or they may stand firm and focus instead on getting more Arizonans vaccinated.

“The governor has basically said that his position is to vaccinate ourselves out of this pandemic. That’s actually not a bad policy, but if that’s your stance you then have an obligation to commit resources to improving vaccine access and convincing vaccine skeptics that it’s something they should do. He has done neither of those things particularly well. He keeps saying it, but that only goes so far.,” Kotterman said.

“Moreover, he’s simultaneously prevented other entities from doing things that will incentivize vaccination and prevent transmission in the meantime. The end result is that he’s preventing the outcome he wants – more vaccines and less virus,” Kotterman said.