Student files suit against ABOR over mask policy

The lawsuit cites an executive order regarding COVID-19 vaccinations at public universities but misinterprets the restrictions of the order

An ASU student filed a lawsuit against Arizona Board of Regents and the College of Liberal Arts and Sciences Dean Patrick Kenney claiming the board and University have illegally "required, and continue to require, mandatory face covering usage" as a condition to his and other students' participation in classes.

The lawsuit, filed Oct. 15 in the Maricopa County Superior Court, cites Gov. Doug Ducey's "Protecting Student Access to Public Higher Education" executive order as part of its defense. However, it misinterprets the restrictions of the order. 

The order, signed after ASU emailed the community about policies that would be in place in the fall, prevents ABOR, the governing board over the state's three public universities, from requiring students to receive a COVID-19 vaccine or show proof of one as a condition for class attendance.

In the email about safety policies, the University laid out different expectations for unvaccinated and vaccinated students. Those who weren't vaccinated would be required to wear masks at all times and participate in COVID-19 testing and daily health checks. Vaccinated students who shared their vaccine status would be exempt from those requirements. 

Additionally, the order prevents ABOR from applying conditions, like mask wearing or mandatory testing, on those who either do not obtain a vaccine or do not want to disclose the information. 

The suit asks ABOR to not require mandatory mask wearing as a condition to his attendance and participation in classes and other academic activities as to align with the executive order. The request says there is no law in Arizona that says students must wear a mask to participate in classes and academic activities. 

But Ducey's executive order does not restrict the University from requiring students to wear masks, only that it cannot only make unvaccinated students wear them. 

READ MORE: Ducey issues order barring universities from requiring COVID-19 vaccine

University policy requires masks in locations where social distancing is not possible, such as classroom, studio and workshop settings. Where distancing is possible, such as in student unions, campus fitness centers, offices and some select classroom spaces, mask wearing is not required. 

Luke Mosiman, the student in the lawsuit who is also the chairman of Maricopa County Young Republicans and a junior studying business and civic and economic thought and leadership, did not respond to requests for comment. 

Lawyers from Wilenchik & Bartness representing Mosiman were not responsive to multiple weeks of repeated phone and email requests for comment. 

Big League Politics quoted Mosiman the day the suit was filed saying he did not file the suit for personal gain but rather believed other students should not be "facing and dealing with the tyranny I have to face. If we don't stand up now, this will keep going."

In addition to seeking an eventual permanent injunction against ABOR and Kenney, ordering them to not require masks for class participation, Mosiman seeks a declaration from the court that plainly says ASU's policy violates the executive order.

According to Chris Fiscus, a University spokesperson, there have been no other lawsuits filed against the University or any of its staff regarding its mask, vaccine or other COVID-related policies. 

"And in terms of enforcement, we don't have mask police," Fiscus said in an emailed statement. "Since the school year started, we looked to encourage rather than enforce, and there have been relatively few issues on a campus with tens of thousands of students."

In a Sept. 15 email from Magda Hinojosa, a director and professor in the School of Politics and Global Studies, a unit of The College of Liberal Arts and Sciences, Mosiman was told he must comply with wearing a mask in class.

According to the email, Mosiman allegedly refused to wear a mask in class and then refused to leave even after he was offered an alternative assignment to be completed at home. 

"While you might not have adopted this policy if the decision was yours to make, as both (Mosiman's professor) and the Office of Student Rights and Responsibilities have explained to you, the mask policy in classrooms is not optional," Hinojosa said in the email, which was filed as an exhibit with the suit.  

Fiscus said in the email that infrequent instances where a student does not comply with the University's mask policy are dealt with on a case-by-case basis through student affairs and student code of conduct, all with an emphasis on making an attempt to come to an agreement between the student and professor, adviser or dean on how the offender should proceed. 

ABOR and ASU would not comment on the specifics of the case as it is still pending in court.


Reach the reporter at pjhanse1@asu.edu and follow @piperjhansen on Twitter. 

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