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Judge: Phoenix district can keep mask rule, at least for now

August 16, 2021 GMT

PHOENIX (AP) — A metro Phoenix school district can keep its mask requirement for now, despite a new state law barring such mandates, a judge ruled Monday.

Judge Randall Warner declined to immediately put the brakes on the Phoenix Union High School’s mask mandate, but he’s allowing teacher Douglas Hester to proceed with his lawsuit against it.

Warner said the new law surrounding school mask mandates doesn’t take effect until Sept. 29, rejecting Hester’s claim that the statute has been in force since the Legislature approved it in late June. The law didn’t get the two-thirds approval needed to take effect immediately.

While the ruling rejected Hester’s bid to stop to the district’s policy, Warner made an observation that could prove helpful to the teacher.

The judge said Arizona law gives school boards the authority to protect students. But he also said the district failed to cite a legal authority showing the Legislature overstepped its bounds with the new law.

Warner noted the law’s effective date is weeks away, saying “many things could change in that time.”

Arizona is one of eight states that have laws or executives order banning mask requirements in public schools.

“We believe kids need a stable learning environment,” said C.J. Karamargin, a spokesman for Gov. Doug Ducey. “Temporary mandates and efforts to flout the law aren’t going to help them. Kids should be in school learning, and their parents should be the ones making decisions.”

But at least 11 districts — accounting for 140,000 students and more than 200 schools — have defied the law amid fears over the delta variant.

Lawyers for Phoenix Union argued school officials have a responsibility to protect people at schools from the virus, while Hester’s attorneys said the district’s policy is unlawful.

It’s unclear whether the ruling will be appealed.

Hester’s attorney, Alexander Kolodin, said his client is evaluating his next steps.

“It’s good to see the court is taking it seriously,” Kolodin said. “The court is recognizing the Legislature’s power.”

The legal challenge marks the second lawsuit involving the law that bars public school districts from requiring students and employees to wear masks indoors.

Last week, a coalition of educators, parents and advocates for children filed a broader challenge to several Arizona laws that restrict the power of local governments and school districts to impose COVID-19 requirements.

The coalition also is seeking to overturn a law prohibiting colleges and universities from requiring vaccinations for students and requiring proof of their vaccination status. And it’s challenging a statute that forbids communities from establishing vaccine passports for people to show they were vaccinated.

Hours after Warner ruled, Ducey warned local governments not to impose vaccine mandates, which are also banned under a not-yet-in-effect law that legislators attempted to apply retroactively. He signed an executive order saying existing state laws ban mandatory vaccination, though the laws he cites apply only to people who comply with “sanitary and quarantine laws, rules and regulations.”

Ducey’s executive order also requires local governments to let employees use paid sick time of they’re told to stay home because of an exposure to COVID-19.

The Board of Supervisors for Arizona’s Pima County, which includes the city of Tucson, on Monday voted 3-2 to provide vaccination incentives to employees, including a one-time $300 payment and three days of leave.

Arizona’s COVID-19 case levels are beginning to approach the 2020 summer surge’s daily highs while remaining far below those of the winter.

The state Department of Health Services on Monday reported 2,400 new confirmed cases and no new deaths. That follows three straight days of more than 3,000 new cases.

The new numbers bring the totals in Arizona since the pandemic started to 967,862 cases and 18,464 deaths. Before Friday, Arizona last reported more than 3,000 additional infections in early February.

Hospitalizations in the state related to COVID-19 have nearly tripled since the end of May.

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Associated Press writer Jonathan J. Cooper contributed to this report.