Judge rules in mask mandate lawsuit - AZEdNews
Sections    Thursday March 30th, 2023

Judge rules in mask mandate lawsuit

600 Creighton Taking Temps

The laws prohibiting school mask mandates and teaching of controversial subjects were found to violate the title and subject matter requirements of the Arizona Constitution and “are therefore void and unenforceable,” said Maricopa County Superior Court Judge Katherine Cooper in her ruling dated Sept. 22, 2021 that was released earlier today.

Click here to read Judge Cooper’s ruling

Arizona education and children’s advocates filed a lawsuit against the state on the laws prohibiting school mask mandates and teaching controversial topics that the Arizona Legislature included in the budget bills and Gov. Doug Ducey signed into law this summer.

The laws were scheduled to take effect on Wednesday, Sept. 29, 2021, but now they will not.

“ASBA applauds the ruling today that allows school boards to exercise local decision making, based on local conditions, in determining whether to have a mask requirement in their schools,” said Dr. Sheila Harrison-Williams, executive director of Arizona School Boards Association, one of the plaintiffs in the lawsuit. “ASBA joined this lawsuit because this case is about local school boards being able to make the best choice for their students, staff and community.”

“ASBA also believes this ruling will force the Legislature in engaging in honest budget making for the good of the state, free of legislative logrolling (the practice of exchanging favors) that results in bad public policy that does not have majority public support,” Dr. Harrison-Williams said.

Click here for an ASBA Mask Litigation FAQ

Arizona Education Association President Joe Thomas said, “We are pleased with today’s court ruling and believe it represents the independent spirit of Arizonans,” says AEA President Joe Thomas. “Now, our communities and school boards can make their own decisions based on local conditions in determining whether to have a mask requirement in their schools.”

Arizona Education Association was among the plaintiffs in the lawsuit.

“We know the majority of parents and our educators support our school leaders doing everything they can to keep our students and staff safe and healthy,” Thomas said. “We’re seeing more and more school districts taking steps to protect their students and communities. Today’s ruling ensures they won’t have to break the law to implement common sense protections for our students. We urge lawmakers to listen to their constituents and make the right decision by accepting this ruling to ensure our classrooms and campuses are safe so we can keep our students learning in our classrooms.”

Arizona Supt. of Public Instruction Kathy Hoffman said, “Today, a Maricopa County Superior Court judge ruled GOP lawmakers violated Arizona’s constitution when it passed significant new policies, like a ban on mask mandates, in the state budget this past June. Passing overwhelmingly complex laws in the eleventh hour without public comment is an assault on the democratic process.”

“With this ruling, Arizona school leaders, educators and community members can come together to make the best decisions on public health, safety and education. While some will likely want to challenge today’s ruling, our school communities are tired of being political pawns in dangerous attempts to subvert democracy and ignore science,” Supt. Hoffman said.

Students and their families have worked hard to learn safely among their friends and teachers, and they deserve to enjoy the remainder of the school year without further distraction,” supt Hoffman said.

Gov. Doug Ducey and Senate President Karen Fann said they will challenge the judge’s ruling.

Schools are asking if the change in the law will make them eligible for PLUS funding, which Gov. Ducey said relied on schools complying with the mask law.

“Now that the law will not take effect tomorrow as it would have absent yesterday’s court ruling, districts that do have mask requirements – but are under the $1800 threshold – are also eligible to receive funds since there no longer is a mask requirement,” said Chris Thomas, associate director of ASBA and general counsel for the organization. “This could change on appeal or if the court issues an emergency stay as the state has requested – stay tuned.”

“In June 2021, the Legislature passed HB2898, SB1824, SB1825, and SB1819 as part of the 2021-2022 budget process. As BRBs, their function was to enact laws to effectuate the budget. It was not to enact laws prohibiting mask mandates, regulating school curriculum, or authorizing special interest projects unrelated to the budget or budget reconciliation,” Judge Cooper wrote in her ruling.

“The Legislature has discretion to title a bill but, having picked a title, it must confine the contents to measures that reasonably relate to the title and to each other to form one general subject,” Judge Cooper wrote in her ruling.

“The Court finds that HB 2898’s title does not provide notice that the bill would: (1) ban public schools from implementing mask mandates; (2) ban and penalize teaching certain curriculum; or (3) authorize lawsuits against state employees for vaguely-defined conduct related to public schools.  None of these measures remotely pertains to the budget or budget reconciliation.  Sections 12 and 21 would enact laws regulating public schools disguised as a budget measure. Section 50 would create a civil cause of action.  What do these measures have to do with the budget?” Judge Cooper wrote in her ruling.

“In addition, the State’s defense of Section 12 banning mask and vaccine mandates in public and charter schools is particularly disturbing. According to the State, this provision is necessary to reconcile the budget because it may “potentially [reduce] overall enrollment and funding.” (Response, p. 8) The State fails to present any information from the legislative record to support this argument.  More concerning is the suggestion that the Legislature would see this provision as a means to de-fund public and charter schools by discouraging staff and student attendance. There is no question that the bill’s title provided no notice of that policy measure,” Judge Cooper said in her ruling.

What this means is that these “provisions that exceed the scope of the title are void and severed so that the balance of the bill may stand,” Judge Cooper ruled.

In addition, Judge Cooper found that the title of Senate Bill 1825 “provides no notice that the bill would prohibit universities and community colleges from requiring vaccinations and alternative COVID-10 mitigation measures.”

Also, Judge Cooper said SB 1824 “provides no notice that the bill includes provisions (1) providing that an immunization that has an FDA emergency use authorization cannot be required for school attendance; (2) that immunizations cannot be required for school attendance unless set forth in a rule by the Director of the Department of Health Services; or (3) that no city or town can establish “a COVID-19 vaccine passport” or require businesses to obtain proof of vaccination status.”

Judge Cooper said in her ruling that the plaintiffs in the case have standing to bring forward the lawsuit and that the court has the authority to determine whether the budget bills violated the Arizona Constitution.

Related articles;
Daily Schools Update: Judge hears arguments in lawsuit prohibiting school mask mandates
Survey: Voters support school mask mandates & local control
Why advocates filed suit against law prohibiting school mask mandates
What would it take to rescind law prohibiting school mask mandates?

Judge Cooper also said six provisions of SB 1819 were not mentioned in the bill’s title either. But in this bill, Judge Cooper said in her ruling that, “When an act violates the single subject rule, the whole act fails.”

“Severability is not available as a remedy because there is no way for the Court to discern the dominant subject of the act. The Court finds that SB1819 is not severable for this reason,” Judge Cooper wrote.

“The Court is not asked to decide (nor will it) whether the Legislature should enact policy or what that policy should be.  The issue here is not what the Legislature decided but how it decided what it did. The State argues that the BRBs need not comply with the title and single subject requirements despite a constitutional mandate that “[e]very act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title[.]” BRBs are not exempt from this mandate,” Judge Cooper wrote in her ruling.

Arizona courts have been enforcing the title and single subject rules for decades as evidenced by the number of cases cited in the parties’ briefs and this ruling.  Whether the Legislature complied with the requirements of Section 13 and whether a provision is reasonably related to “budget reconciliation” are questions properly before the Court,” Judge Cooper wrote in her ruling.

In addition, Judge Cooper ruled that the budget reconciliation bills were not emergency measures.

“Treating BRBs as equivalent to an emergency is not persuasive. If an emergency existed in June 2021, it was due solely to internal disagreements that delayed passage of the budget to the very last minute. That is not the kind of emergency that confers unreviewable authority as an emergency exception. Under the State’s theory, the Legislature has complete authority to determine what is necessary to implement the budget including, for example, school curriculum, dog-race permitting, and the definition of ‘newspaper,’ ” Judge Cooper wrote in her ruling.

During the lawsuit’s Sept. 13 hearing before Judge Cooper, Roopali Desai, attorney for the plaintiffs said these laws violated the Arizona Constitution, because the title of the bills did not include the contents of the acts to make it clear to Arizonans what the bills are about.

“This case is not the first time that the Legislature has pushed the boundaries of its constitutional limit to further its political agenda,” Desai said, 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.

Last week, a study indicated a school related COVID-19 outbreak was 3.7 times more likely to happen in schools with no mask requirement compared to schools with an early mask requirement. The study analyzed K-12 mask policies in Maricopa and Pima counties and COVID-19 school outbreaks and was published in the U.S. Centers for Disease Control’s Morbidity and Mortality Weekly Report. The CDC recommends universal masking in K-12 schools.

“New data from Arizona schools shows what public health experts have been telling our Governor for months: universal masking keeps students learning in person,” said Supt. of Public Instruction Kathy Hoffman.

“It is irresponsible of the state government to stand in the way of local leaders making decisions that protect the health and safety of their students and staff,” Supt. Hoffman said.

“Until we have suppressed community spread by vaccinating more individuals, including children under 12, universal masking will continue to be a critical tool in limiting the spread of the virus in our schools,” Supt. Hoffman said.

In addition, the National School Boards Association filed an amicus brief in the case, saying it 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 SlavenNSBA 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 survey earlier this month showed Arizona voters statewide support students wearing in masks in schools to limit the spread of COVID-19 and school boards’ local control in making those decisions that affect students in their communities in a recent survey paid for by the Arizona Public Health Association and the Arizona School Boards Association.

Fifty-seven percent of Arizona voters agreed that individuals should wear masks while in local government, public schools and charter schools, and 53% thought those entities should determine their own mask requirements, according to an Aug. 30 – 31 landline and cell phone survey by HighGround, Inc. of 400 registered Arizona voters statewide likely to vote in the Arizona 2022 General Election who have a history of electoral participation.

“A majority of the electorate, including these likely voters who are going to show up in 2022, believe that at this time that individuals should be wearing masks in local governments, schools and charter schools, and in addition to that, schools and others should have the choice to make that determination for themselves,” said Paul Bentz, senior vice president of research and strategy for HighGround, Inc.

“As the Delta variant continues increase the wave of cases and hospitalizations in Arizona, voters clearly understand the importance of masks when it comes to health and public safety,” said Will Humble, executive director of the Arizona Public Health Association.

“In fact, a new study published in BMJ found that universal masking in classrooms reduced aerosol transmission by 800%,” Humble said. “The combined interventions of universal masking, natural ventilation, and HEPA filtration reduced transmission 3,000%. 

“When it comes to masks, a large majority of the public supports their use in our government buildings and schools,” Humble said.