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Judge: Phoenix Union High School District Can Keep Mask Rule, At Least For Now

A judge ruled Monday that a state law banning school district officials from requiring students and staff to wear masks hasn’t yet taken effect.

That means the mask mandate issued by the Phoenix Union High School District governing board can be enforced, at least for now.

Maricopa County Superior Court Judge Randall Warner rejected arguments that a state law banning such mandates took effect immediately because Republican lawmakers adopted it with a retroactive clause.

In his ruling, Warner wrote legislators wanted the law to take effect immediately, they should have instead used an emergency clause — but that requires a two-thirds majority vote, something Republican lawmakers couldn’t muster at the Capitol.

“A retroactivity clause is not an emergency clause, and cannot be used to avoid the two-thirds vote requirement needed to make a statute immediately effective,” Warner wrote.

Instead, Warner wrote the law takes effect according to the Arizona Constitution — 90 days after the end of the legislative session, which this year is Sept. 29.

→  List: Arizona School Districts Requiring Masks For 2021-2022 School Year

Warner also rejected the notion that the mask mandate ban bypassed the 90-day rule because it was included in a budget bill. The judge wrote that the specific statute at issue is a regulation, not a matter related to the state’s spending plan.

Spending, or “appropriation” policies, are exempt from the 90-day rule.

Including the mask mandate ban “in a bill that also includes appropriations does not make the statute itself an appropriation measure,” Warner wrote.

In a statement, Phoenix Union High School District officials praised the ruling, which indirectly reinforces similar mask mandates by other school districts across Arizona.

“Today’s decision is much larger than (Phoenix Union) — it has the potential to impact the 1.1 million students who call Arizona’s public schools home, as well as their families, and the broader community,” they stated. “This decision will allow districts across the state to continue to prioritize the health, safety, and wellness of their staff, students and families.”

However, Warner also decided not to dismiss the case, as requested by attorneys for the school district. Instead, he gave the high school biology teacher challenging the mask mandate 45 days to file an amended complaint.

The judge left open the possibility that Phoenix Union School District officials may still try to enforce the mask mandate after the state law banning those mandates takes effect. Warner noted in his ruling that district officials never challenged the Arizona Legislature’s authority to ban mask requirements — only that that the law was not yet in effect.

The teacher's attorney, Alexander Kolodin, said his client is evaluating the next step in the case.

At least 11 districts accounting for 140,000 students and more than 200 schools have defied the law by imposing their own mask rules.

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

For more on how the situation is unfolding, The Show spoke with Howard Fischer of Capitol Media Services as well as KJZZ's Ben Giles.

The Associated Press contributed to this report.

Ben Giles is a senior editor at KJZZ.