Teacher's lawsuit against Phoenix Union district's COVID-19 mask mandate headed to court

Andrew Favakeh Lacey Latch
Arizona Republic

A Phoenix Union High School District teacher who filed suit challenging the district's COVID-19 mask mandate will have his day in court next week.

The district is requiring staff, students and visitors to wear masks indoors when students head back to school next week — despite an Arizona law that bans mask mandates.

Douglas Hester, who teaches at Metro Tech High School, sued the district, its governing board and its superintendent in Maricopa County Superior Court. He alleges Phoenix Union’s governing board lacks the legal authority to require masks.

A brief scheduling hearing in the case took place on Wednesday morning with attorneys for the district and the teacher in attendance.

Judge Randall Warner ruled arguments will begin Aug. 13 at 9 a.m. The case will be heard in person, but attendance will be limited due to COVID-19 restrictions. The proceeding also will be available for viewing online.

At question in Hester’s lawsuit is the authority of school district governing boards and whether they must be responsive to public health guidance or state law.

“No school district is above the law,” Alexander Kolodin, Hester's attorney, told The Arizona Republic on Tuesday. “We are pleased to take action on behalf of this brave teacher to ensure government bodies follow state law.”

Kolodin has been active in litigation and other matters related to politically charged issues over the past year.

He represented voters in a November challenge to Maricopa County election results. He also has represented the Cyber Ninjas, the lead contractor hired by the Arizona Senate to conduct a review of Maricopa County election results, and the Arizona Republican Party.

He also represented Arizona Rep. Mark Finchem and former state Rep. Anthony Kern in public records requests related to their whereabouts during the Jan. 6 insurrection at the U.S. Capitol.

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3 districts join Phoenix Union in requiring masks

In a statement on Tuesday, Phoenix Union said it stands behind its decision to require masks, saying it remains "steadfast in our commitment to do all we can to protect our staff, students, families, and broader community."

Hester's lawsuit comes as school districts weigh safety measures as COVID-19 cases are on the rise in Arizona and across the nation.

Three other school districts — Phoenix Elementary, Osborn Elementary and Roosevelt Elementary, all feeder districts for Phoenix Union — are also bucking state law and are requiring masks inside school buildings.

The mask policies at the four districts are in line with federal and local public health recommendations in response to the spread of the highly contagious delta variant of the coronavirus.

Gov. Doug Ducey's office has said such mask mandates are illegal in Arizona and unenforceable.

"As the governor has often said, mask usage is up to parents," Ducey's office said in a statement Friday. "If a parent wants their child to wear a mask at school, they are free to do so."

The budget bill passed by the Arizona Legislature earlier this summer prohibits school boards from mandating that students or staff wear masks or be vaccinated. The ban took effect June 30, according to a provision in the legislation.

Arizona Superintendent of Public Instruction Kathy Hoffman talks to students and a teacher during their first day at Academia del Pueblo in Phoenix on Aug. 4, 2021.

State Superintendent of Public Instruction Kathy Hoffman, who visited a charter school near south Phoenix on Wednesday for the first day of school, said it was "reckless and shortsighted of the Legislature" to pass a ban on mask mandates "in the 12th hour of the budget process" without input from public health experts or the public.

Hoffman said she is watching closely to see how the lawsuit plays out.

“Schools should never have been put in this position of where the Legislature and governor have taken away the local decision-making authority from our school leaders to make the decisions they need to make to keep their communities safe,” she said.

The Republic's Yana Kunichoff and Megan Taros contributed to this article.