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Catalina Foothills, Amphi both mandate K-12 COVID masks

New Arizona law blocking schools from requiring face-coverings doesn't go into effect until Sept. 29, judge rules

Both Amphitheater and Catalina Foothills school districts will require COVID masks for students, staff, teachers, and visitors after a judge said Monday that the Arizona law blocking such mandates in schools is not yet in effect.

In a 3-page decision, Maricopa County Superior Court Judge Randall H. Warner wrote that the law "has not yet become effective," ruling that in Arizona, new laws are "effective 90 days after the legislative sessions ends, which is September 29 this year."

Immediately following Warner's decision, officials with both Amphitheater Public Schools and Catalina Foothills United School District announced new mask mandates in an attempt to blunt the spread of the Delta variant of COVID-19, which has ramped up cases in Pima County, and across the state, pushing what was "substantial transmission" of the disease to "high transmission" since the beginning of the month. 

On Monday, there were another 2,400 new confirmed COVID-19 cases in the state, following a weekend in which officials tallied nearly 6,500 new cases. The spike in cases is at levels not seen since the beginning of February.

More than 19,600 more people have been diagnosed with COVID infections in the state in the past seven days. 175 new cases were reported in Pima County on Monday, following nearly 600 cases over the weekend. On Saturday, Pima County reported 299 new case, the highest daily total since February 10.

As the Delta variant continues to spike, health officials have advised that everyone — even those who've been vaccinated — wear masks while indoors in public.

Todd Jaeger, the superintendent for Amphi, said Monday that given Warner's ruling his district will "again require staff and students, regardless of vaccination status, to wear masks while indoors on school district property and on district buses, beginning tomorrow, August 17."

"Masks will continue to be optional outdoors," he said. Jaeger added that public health officials, including the CDC, the Arizona Department of Health Services, the Pima County Health Department, and the American Association of Pediatrics "are all in agreement that adults and children should wear masks inside our public schools given current pandemic conditions."

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"Community spread continues to rise. Pima County is currently in High Transmission, with more than 160 cases per 100,000 population and a positivity rate of almost 10 percent," Jaeger said. "It was a very different picture just a few weeks ago, and the acceleration of cases has been alarming."

"We are seeing an increased number of cases in our schools. At one school today, 23 percent of the student body was absent due to illness," he said. "We must take action to reduce both the number of positive cases and the number of students and staff required to quarantine if we are to ensure the continued operation of our schools in-person."

"We understand that masks are a hot topic and even a divisive issue, and I have certainly received many differing thoughts on the matter," he said, however,  "at this point, the steep increase in cases, coupled with the current and clear balance of public health guidance, instructs us that the best way to ensure we can keep students and staff in class, learning to their best ability, is to require masks so long as the law allows and/or until our community spread and cases in schools are well-managed."

Jaeger said that the district will allow for accommodations for those who cannot wear masks, and schools would give out masks to those who need them.

Similarly, officials with Catalina Foothills announced a mask mandate beginning Tuesday. 

"Today in the case of Hester v Phoenix Union High School District, a Maricopa County Superior Court judge ruled that the Arizona law that prohibits school districts from mandating face coverings is not yet in effect. As a result, school districts can legally require masks," CFSD officials wrote. "Therefore, effective Tuesday, August 17, we are requiring universal indoor masking by all students, staff, teachers, and visitors/volunteers on all CFSD campuses, regardless of vaccination status. Outdoors, masks will continue to be optional."

"This requirement will be included as an update to our mitigation plan.  It is aligned with federal, state, and county public health guidance," they wrote.

The move from Amphi and CFSD are part of an increasing revolt, as Arizona school districts have decided to employ mask mandates in spite of the law passed by the Republican-controlled Legislature.

Phoenix Union High Schools said on June 30 that it would require masks, prompting a lawsuit from Douglas Hester, a biology and environmental science teacher at Metro Tech, who argued that the district was violating HB 2898, a state law passed at the tail end of the state's legislative session. The bill blocks school districts, along with counties, cities, and towns, from requiring students or staff to wear a face-covering during school hours, and on school property.

Gov. Doug Ducey signed bill into law, and defend the new policy by arguing that the new law "requires district schools to maintain open enrollment processes that are truly open and fair so all Arizona families can easily access the school that best fits their learning needs — with minimal paperwork or hoops to jump through."

However, earlier this month, Tucson Unified School District joined Phoenix United and several others to mandate masks regardless of the new law, arguing that while state legislators had made the bill retroactive, it still couldn't be enforced until the end of September, giving them weeks to implement mask mandates.

Last week, the state's public universities, and both Maricopa and Pima community colleges declared their own mandates, also in spite of the law.

Legislature needed 2/3rds vote

In his order, Warner wrote that while there is an exception for emergency measures, but such a move requires a two-thirds vote, and this statute was not approved by a two-thirds majority. Warner also rejected the argument that because the law was an appropriations measure, it does not require an emergency clause, or a two-thirds vote.

"The statute is not an appropriation measure, it is a regulation of school districts," he wrote, adding that just because the bill was included in appropriations "does not make the statute itself an appropriation measure."

He also rejected arguments that Phoenix United's policy "violates existing law."

"It does not. Arizona law gives school boards the authority to protect students and ensure the orderly operation of schools, subject to statutory limitations imposed by the Legislature," Warner wrote. 

However, Warner left open the door for Hester to file an amended complaint, giving him a 45 day deadline to do so. 

Ban part of 'head-scratching decisions'

The Arizona Public Health Association, which has been critical of Ducey for months, said that the ban on masks is unconstitutional, and part of a series of "damaging and head-scratching decisions throughout the pandemic."

In his blog, Dr. Will Humble, the head of the APHA and a former director of the state's Health Department, said that  "vaccination remains the most important public health priority to reduce viral transmission and severe illness over the long-term."

"However, in the short-term only mask mandates, restrictions on indoor gatherings in public settings, and targeted business restrictions will reduce transmission we are now experiencing," Humble wrote on Aug. 14.

"Resumption of in-person instruction in K-12 schools now, and universities in the coming weeks, will lead to frequent school-associated outbreaks and contribute to accelerating community transmission. Vaccine and mask mandates along with weekly surveillance testing, adequate ventilation, and physical distancing is required to stave-off a worst-case scenario in schools," he said.

Statewide data shows that just 17.7 percent of those aged 20 or below have received one or more doses of the COVID-19 vaccine, according to the Arizona Department of Health Services. While those 12-15 were authorized to begin receiving the vaccine in May, the FDA has not approved coronavirus vaccinations for kids under 12. Pima County has distributed more than 62,000 doses to people 12 to 18 years old.

Nonetheless, more than 24,000 kids in TUSD alone are unable to receive a vaccination against the virus because they are too young under the current vaccine authorizations, according to enrollment data from the district.

Pima County sends help

On Monday, the Pima County Board of Supervisors voted to assist school districts, though the board rejected moves to require county employees get vaccinated or face higher insurance premiums, and decided to wait to decide whether to pass a vaccination requirement for health care workers.

In his memo to the Board of Supervisors, County Administrator Chuck Huckelberry wrote that the county should take a "positive role" in supporting school districts who make "local decisions based on local conditions to require certain COVID-19 protective measures such as requiring masks for students, teachers and staff in the K-12 schools."

He said that data shows accelerating infections in the K-12 school system, and "more telling" there are COVID-19 infections in students who cannot yet get vaccinated.

"These age-ineligible children are essentially defenseless against COVID-19. The least we can do is provide them the defense of universal indoor masking in the school environment," he wrote. "Because of this, it is appropriate the County rise to the defense of local school districts who choose to require face masks for students, teachers and staff in the K-12 setting."

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He added that "there is an existing statutory mandate that requires parents and schools to document the status of six different vaccines at the time of enrollment and a condition." However, "unfortunately" measures around COVID-19  have been politicized "with the parties in opposition citing everything but informed public health policies, statistics and analysis."

"To surrender well- established public health standards, practices or scientifically proven outcomes to political rhetoric, it is both unfortunate and illogical," Huckelberry wrote. 

After the board passed the move, Pima County officials said the Health Department will provide BinaxNOW kits to schools to help regularly test students and staff, and catch asymptomatic cases "before they turn into outbreaks." The county has around 30,000 self-test kits and wants to get at least 80 percent of those into K-12 schools.

"COVID-19 can be spread before the first case knows they have it. It can also be spread without symptoms showing," said Brian Eller, the Health Department COVID-schools liaison.

"We are eager to get these self-tests into schools, as they are easy to use, even for children who are in kindergarten. We can stop outbreaks before they start. That helps us keep classrooms open and keep kids in school, where they belong and learn best," he said.

The county Health Department will also provide vaccination clinics at schools, personal protective equipment, and "on-going support" for school and district administrators, officials said.

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