Daily schools update: Advocates await Judge's ruling on mask mandate & controversial topics lawsuit - AZEdNews
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Daily schools update: Advocates await Judge’s ruling on mask mandate & controversial topics lawsuit


Students Walking On Campus At Casa Grande Middle School By Lisa Irish/ AZEdNews

Sept. 14, 2021: After hearing from the attorneys for the plaintiffs and the state yesterday in the lawsuit against the laws prohibiting school mask mandates and the teaching of controversial topics, Maricopa County Superior Court Judge Katherine Cooper said “I am going to take the matter under advisement, and I will have a ruling to you before Sept. 29.”

Those laws included in the budget bills approved by the Arizona Legislature and signed by Gov. Doug Ducey go into effect on Sept. 29, 2021.

The number of confirmed COVID-19 cases in Arizona has risen to 1,053,487 today from 1,050,878 yesterday and 19,304 deaths have been reported since the pandemic began.

In Maricopa County, there are 668,223 confirmed cases of COVID-19, 131,183 in Pima County, 65,790 in Pinal County, 40,065 in Yuma County, 29,757 in Mohave County,  24,832 in Yavapai County, 20,565 in Coconino County, 19,053 in Navajo County, 13,615 in Cochise County, 12,809 in Apache County, 8,643 in Santa Cruz County, 8,645 in Gila County, 6,658 in Graham County, 2,816 in La Paz County and 833 in Greenlee County.

Arizona Dept. of Health Services Interactive Graphic: (Hover over counties and boxes for more info)

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Sept. 13, 2021: A hearing took place this afternoon in Maricopa County Superior Court on the lawsuit filed by education and children’s advocates against the state law prohibiting school mask mandates and teaching controversial subjects that was part of the budget bills approved by the Arizona Legislature and signed by Gov. Doug Ducey.

“This case is not the first time that the Legislature has pushed the boundaries of its constitutional limit to further its political agenda,” said Roopali Desai, attorney for the plaintiffs during the hearing. “In the past, Arizona courts have not hesitated to hold the Legislature to account by requiring compliance with the Constitution. This case should be no different, and in fact, if anything it presents even more compelling reason for upholding the constitutional requirement.” Desai said.

“Unless the law is challenged in this case and declared unconstitutional and enjoined, a great many children in Arizona will get COVID-19, they will get sick, they will suffer from long COVID, they will be hospitalized and they may die,” Desai said.

The American Academy of Pediatrics and the Arizona Chapter in their amicus brief share how Arizona ranks at the very top nationally in child COVID-19 cases, hospitalizations and deaths, Desai said.

Desai said the Arizona Constitution requires that the title of a bill include the contents of the act to make it clear to Arizonans what the bills are about.

“There is simply no way to square the provisions in this case with the constitutional mandate,” Desai said.

Section 13 of the Arizona Constitution requires that every act shall embrace one subject and that subject shall be expressed in the title of the bill, Desai said.

“If any subject shall be expressed in an act that is not expressed in the title, such act shall be void only so much thereof that is shall nor be embraced in the title,” Desai read from Section 13.

In this instance, the bills contain the titles “budget reconciliation” yet the bills also prohibit school mask mandates and the teaching of controversial concepts, which should have been put into separate bills according to guidance from the Arizona Constitution, Desai said.

Those provisions in the K-12 budget reconciliation bill have nothing to do with budget reconciliation, substantive law is prohibited from being included in the general appropriations bills, and “these provisions are not necessary to implement, carry out or effectuate the budget,” Desai said.

Desai said these provisions in the budget reconciliation bills are examples of “the pernicious practice of cobbling together unrelated policies, many of which failed in the normal legislative cycle but then were put into this bill at the 11th hour.”

“The Legislature understands the importance of Section 13. It’s not new to them,” Desai said. “The state is asking for a change in the law by excluding budget bills from Section 13.”

If the court voids the provisions the plaintiffs have requested, it will not impact the spending in the budget reconciliation bills, Desai said. She noted they were focusing on the titles of the bills.

“If the court were to declare those provisions that we’re talking about to be unconstitutional for one the reasons that you’ve presented, do we get to the injunctive relief piece of it?” asked Judge Katherine Cooper.

“It’s important to keep in mind that each one of these acts are separate, they do not sort of lump together into a group of four, that each act must be examined under the constitution separately and the different provisions may lead to different results in terms of how it’s done,” said Pat Irvine, the attorney for the state.

“If there’s one thing that’s clear is that it’s not strictly applied. The Legislature is given a lot of discretion, a lot of wiggle room, and we all sort of pick and choose how we quote so it’s important that you read a lot of these different descriptions,” Irvine said.

“Given the history of the budget reconciliation bills, the titles satisfy that because they put the people on notice to inquire what is going into them,” Irvine said.

“While the complaint is that this year was worse than other years, I don’t think there’s any doubt that budget reconciliation has often included things that people disagreed with that they didn’t necessarily think fit within the category, but that’s been done. I think the amicus brief says this has been the system since 2005,” Irvine said.

“The central provisions raised by the plaintiffs is that the challenges aren’t related to the budget. Budget reconciliation makes it necessary for every section in the bill to relate to the budget and it’s important to see that the word budget as far as I can see appears in Section 13,” Irvine said. “Budget reconciliation bills do not appear in the Constitution. These are not constitutionally defined terms.”

While appropriations bills do have clear requirements outlines in Section 20, Irvine said.

Then, Judge Cooper asked, “Are you saying that there’s a different Constitutional standard for a bill if it’s called a budget reconciliation bill as opposed to another kind of bill?”

“It’s the same standard that’s in Section 13, which is is it a single subject and is it reflected in the title,” Irvine said. “We are not saying budget bills are immune from Section 13.”

“Whether something is necessary to be in a budget reconciliation bill is something that the courts should defer to the Legislature on,” Irvine said.

Of the three bills attacked under the title provision, “the remedy there is to strike the offending ones,” Irvine said.

“The clear direction of the Constitution in Section 13 is to strike the void parts only that aren’t in the title is there,” Irvine said.

When asked by Judge Cooper, Irvine said the plaintiff has standing under the declaratory judgement act under three of the four bills with the exclusion of Senate Bill 1819.

“The titles of these bills don’t comply with Section 13 and Senate Bill 1819 also violates the single subject rule,” said Desai in her closing comments.

“We would request that the court enter a judgement in favor of the plaintiffs, declare the particular provisions of the three bills unconstitutional, sever them out and also to hold that Senate Bill 1819 in it’s entirety violates the single subject rule,” Desai said

Judge Cooper said “I am going to take the matter under advisement, and I will have a ruling to you before Sept. 29.”

The National School Boards Association has filed an amicus brief in the case, saying is supports the lawsuit seeking to overturn an Arizona law prohibiting school boards from requiring masks in schools.

“Masks or no masks shouldn’t be a political decision,” said Chip Slaven, NSBA interim Executive Director and CEO. “Instead of one-size-fits-all state mandates, masking decisions should be based on science, state and local health data, and conversations with community members. As duly elected representatives of their communities, school board members are the best-positioned individuals to make decisions affecting the health and safety of the students and educators they represent.”

School districts have long been responsible for the education and the health and safety of their students—a responsibility the Arizona legislature “eviscerates,” according to the brief.

“Through the budget reconciliation bills (BRBs) challenged here, the Arizona legislature has removed the authority of the state’s school districts to fulfill their most basic and expected duty—to keep students, staff, and guests safe in school buildings,” the brief notes. “By prohibiting schools from imposing mask mandates, the so-called ‘budget’ bills have usurped local authority and long-held standards about how branches of state government ensure public health and local school boards collaborate with those authorities. The legislative action is unconstitutional…and dangerous. It imperils the health and safety of public school children and their communities.”

School districts take on parent-like responsibilities for students safety, the brief states.

“Courts have long recognized the doctrine of in loco parentis to uphold school district actions taken to protect students, even when school district restrictions may limit certain constitutional freedoms,” said Francisco M. Negrón, Jr., NSBA’s Chief Legal Officer. “In this instance, however, the Arizona legislature has stripped school districts of their ability to make decisions and provide tailored solutions during a time when they need them most in favor of state-imposed mandates that fail to account for the unique health challenges facing individual communities.”

Meanwhile, a recent survey shows Arizona voters support students wearing in masks in schools to limit the spread of COVID-19. The survey was sponsored by the Arizona Public Health Association and the Arizona School Boards Association.

The number of confirmed COVID-19 cases in Arizona has risen to 1,050,878 today from 1,048,600 yesterday and 19,187 deaths have been reported since the pandemic began.

In Maricopa County, there are 666,798 confirmed cases of COVID-19, 130,914 in Pima County, 65,274 in Pinal County, 40,039 in Yuma County, 29,655 in Mohave County,  24,746 in Yavapai County, 20,514 in Coconino County, 19,020 in Navajo County, 13,591 in Cochise County, 12,793 in Apache County, 8,626 in Santa Cruz County, 8,626 in Gila County, 6,647 in Graham County, 2,809 in La Paz County and 826 in Greenlee County.

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Earlier coverage:

Aug. 24 to Sept. 1, 2021: Daily schools update: COVID-19 outbreaks rise among students in Maricopa County

Aug. 17 to Aug. 23, 2021: Daily schools update: FDA approves Pfizer’s COVID-19 vaccine

Aug. 3 to Aug. 16, 2021: Daily schools update: Arizona school mask mandates receive presidential praise

July 19 to Aug. 2, 2021Daily schools update: Teens struggle with mental health as school starts

June 20 to July 14, 2021Daily schools update: Arizona lawmakers ban mask requirements in schools

June 14 to June 17, 2021Tempe Union’s board approves comprehensive mental health policy

June 1 to June 11, 2021It’s time to get students enrolled in school for fall & ready for in-person classes

May 17 to May 28, 2021A year after George Floyd’s murder, a look at empathy, equity, what’s changed & what hasn’t

May 10 to May 14, 2021Students ready for graduation ceremonies

May 4 to May 6, 2021Amendment to bill would prohibit teachers from discussing controversial policy & social issues not essential to learning objectives

April 28 to May 3, 2021Thank a teacher during Teacher Appreciation Week for all they do for students

April 21 to April 27, 2021: 3 years after Red for Ed there’s much left to do

April 12 to April 20, 2021: How & why teachers discuss trial with students; Schools keep masks after Gov. rescinds mandate

March 29 to April 9, 2021Children, young teens may be eligible for COVID-19 vaccine before next school year

March 15 to March 26Masks are still required in all schools; Video: Dr. Christ’s news conference today

Feb. 24 to March 11, 2021: COVID-19 aid funds will help AZ students, families & schools

Feb. 11 to Feb. 23U.S. Dept of Ed: Students must take standardized tests, but there’s flexiblity on when & how

Feb. 2 to Feb. 9Video: Supt. Hoffman gives State of Special Education address

Jan. 21 to Feb. 1Black History Mural Month Project to highlight pioneers of the Black community launches in Phoenix

Jan. 10 – Jan 20How students engage with Inauguration Day

Dec. 21, 2020 to Jan 8, 2021Teachers help students deal with attacks on Congress, Capitol

Nov. 30 – Dec. 16Watch it now: Dr. Christ asks people to avoid holiday gatherings with people they do not live with

Nov. 18 – 25COVID-19 cases rise before Thanksgiving adding to school and hospital leaders’ concerns

Nov. 16: More schools return to online learning as COVID-19 cases rise

Nov. 2 – 13: $19 M grant would help schools with teacher development, stipends, reading & math curriculum, summer ed resources and more

Oct. 20 to Oct. 30: AZDHS amends COVID-19 school benchmarks

Oct. 7 – Oct. 19What are teachers doing ahead of elections to support students afterwards

Aug. 25 – Sept. 8: Parents voice concern about online class size; school nurses prepare for students

Aug. 12 – Aug. 24: Students, teachers affected by Zoom outage

July 30 – Aug. 11Parent organizes co-op for learners; group rallies for in-person school days after benchmarks release

July 13- July 30: Teachers prepare for digital learning and back to school

June 29 – July 12Video: Gov. says ‘Goal is to get children back to school when it’s safe;’ Schools lay out learning models

June 29: Video: Gov. delays in-person classes to Aug. 17 due to rise in COVID-19

June 15 – June 29: Video: Gov. pauses re-opening of some businesses as COVID-19 cases rise

June 24: Plan provides more funding, flexible instruction as schools re-open

May 26 – June 12: Increase in COVID-19 cases marks a new daily high

May 20 – 25: AZ Dept. of Ed releases COVID-19 guidance to schools for summer programs, back to school

May 11 – 19: Arizonans consider workplace safety, what back to school will look like amid COVID-19

April 26 – May 10: Stores re-open, COVID-19 testing blitz resumes on Saturday

April 8 – 25You can get tested now if you think you’ve been exposed to COVID-19

March 12 – April 7, 2020Coronavirus response: Cases rise; AZ Day of Giving