Update Aug. 25, 2021: A judge will hear arguments in the lawsuit at 1:30 p.m. on Sept. 13. 2021.
Original story: Hear why education and children’s advocates as well as several individuals filed a lawsuit against the state for the law prohibiting school mask mandates.
“We knew the law was problematic when it passed in June, that’s why we lobbied against it during the legislative session,” said Joe Thomas, president of Arizona Education Association, which is a plaintiff in the lawsuit. “Since school has started, we have seen COVID cases rising and school districts taking steps to protect their students and communities. But they shouldn’t have to break the law to implement common sense protections for our students.”
Arizona School Boards Association, Children’s Action Alliance, Arizona Education Association, Arizona Advocacy Network, Steve Gallardo, Lela Alston, David Lujan, Beth Lewis, Raquel Mamani, Justin Monnet, Corina Ontiveros, Mary Catherine Harrel, M.D., Ruth Franks Snedecor, M.D., Sharon Kirsch and Richard Newhauser are plaintiffs in a lawsuit against the State of Arizona in Arizona Superior Court in Maricopa County seeking declatory and injunctive relief against the prohibition of school mask mandates included in the budget bills approved by the Arizona Legislature and signed by Gov. Doug Ducey. The lawsuit was filed by attorneys Roopali H. Desai, D. Andrew Gaona and Kristen Yost with Coppersmith Brockelman PLC and attorney Danil J. Adelman with Arizona Center for the Public Interest on Aug. 12, 2021.
“At a time when the Delta variant is leading to a rapid rise in the number of COVID-19 cases, particularly among children, it is important that schools have the ability to make the decisions that will best keep their students and staff healthy and safe,” said David Lujan, president and CEO of Children’s Action Alliance and a plaintiff in the lawsuit, in an interview with AZEdNews.
Beth Lewis agreed and said, “We must do everything we can to protect kids, particularly elementary school kids who cannot be vaccinated. I am extremely worried about my children’s safety at school given the soaring case counts and rising pediatric hospitalizations.”
“I am grateful that my district took the critical step of mandating masks this week but worry that after September 29th when the law goes into effect our district will no longer be able to keep our students safe. That’s why this lawsuit is so critical,” said Lewis, a plaintiff who teaches in Tempe Elementary School District, and is executive director of Save Our Schools Arizona.
“With cases soaring and child hospitalizations on the rise, schools need to be able to set policy that keeps kids safe and healthy. Right now, schools’ hands are tied. We cannot listen to public health experts, and we cannot keep kids safe because the Legislature cunningly banned mask mandates in schools as part of the state budget,” Lewis said.
This lawsuit is important for students and families, “because they are counting on us to make decisions in their best interest. Because we all would like to avoid what happened last year with going to full virtual learning for a good part of the year. Because the Delta variant is proving to be far more contagious with a much larger viral load,” said Chris Thomas, associate executive director of Arizona School Boards Association, which is a plaintiff. “Allowing local boards to enact COVID mitigation efforts, including where desired mandatory masking, can allow local school boards to address these issues.”
“Arizona School Boards Association stands for local control; we do not want to mandate masks for all Arizona school districts; we simply want those districts and their locally elected school board to be able to decide what’s best for their students and staff,” said Dr. Sheila Harrison-Williams, executive director of the Phoenix-based non-profit. “We will keep our members updated throughout this process and continue to advocate and represent public school districts across Arizona.”
Lawsuit: “Policy provisions that have nothing to do with the budget”
The lawsuit cites the Arizona Constitution which says laws passed by the Arizona Legislature can cover only one subject and their contents must be properly noticed in the title of the bill.
The lawsuit notes that three budget bills – House Bill 2898, Senate Bill 1824, and Senate Bill 1825 – have titles relating to health or education budget reconciliation, yet the bills’ contents “include substantive policy provisions that have nothing to do with the budget.”
When lawmakers passed legislation prohibiting school mask mandates, it “should have been subject to the same rigors expect of all other legislation – that it be considered as stand-alone legislation and weighed on its own merits – but that is not what happened,” Lujan said.
“The issue was used as a bargaining chip to buy the support of a few lawmakers to vote for the budget and its massive tax giveaways for the rich,” Lujan said. “The prohibition on school mask mandates was thrown into the budget bills along with dozens of other policies all of which had nothing to do with the budget but were included in the budget because each of the policies were used to gain votes for the underlying budget.”
“The Arizona Constitution says that is not the way the legislative process is supposed to work, and it is important that we challenge it now. Otherwise, lawmakers will continue to take that approach in the future, and it will essentially make the legislative sessions meaningless,” Lujan said.
For example, House Bill 2898 – the kindergarten through grade twelve budget reconciliation bill – includes these major policy changes some of which failed in the Arizona House and Senate and others that were in bills Gov. Ducey vetoed to get legislators to focus on approving a budget:
- Prohibiting public and charter school mask mandates but not private school ones
- Prohibiting public schools from requiring students or teachers to receive a COVID-19 vaccine or wear a face covering to participate in in-person instruction
- Authorizing the Attorney General to initiate civil actions against an employee of the state who uses public resources including email, equipment, or compensated work time to organize, plan or execute any activity that impedes or prevents a public school from operating for a period of time.
- Prohibiting preschool through 12th grade public school teachers or school employees from teaching curriculum that “that presents any form of blame or judgment on the basis of race, ethnicity or sex.”
- Prohibiting the teaching of concepts to public school students including the idea that an individual “should feel discomfort, guilt, anguish, or any other form of psychological distress because of the individual’s race, ethnicity or sex,” or that “academic achievement, meritocracy or traits such as hard work ethic are racist or sexist or were created . . . to oppress members or another race, ethnic group or sex.”
- Authorizing the State Board of Education to take disciplinary action against a teacher who violates this prohibition “including the suspension or revocation of the teacher’s certificate,” authorizing a County Attorney and state Attorney General to initiate enforcement action against the teacher and authorizing the Attorney General to initiate civil actions against a teacher, administrator, or state employee whose violation of this resulted in an illegal use of public money.
“This legislation unfairly discriminates against Arizona’s public and charter school students as compared to their private school peers regarding their right to a safe education, a fundamental right under Arizona law,” the lawsuit states.
This lawsuit, if successful, will negate the mask mandate legislation passed this past year – even beyond the general effective date of September 29, said Chris Thomas with ASBA.
“We hope the lawsuit will result in the Legislature keeping substantive policy issues unrelated to the budget out of the budget bill enactments. Inclusion of these types of issues in the budget process makes it impossible to give full public input (and scrutiny) into the legislation and prevents issues from having to garner majority support on their own which can show their relative merit,” Thomas said.
Impact & ban on teaching controversial concepts
Adding an unrelated provision to a bill, completely changes the ability to effectively advocate for that particular issue, Lujan said.
“Instead of lawmakers and the public considering the policy on its own individual merits, the policy must now compete with all of the other unrelated policies contained in the legislation,” Lujan said.
Had the policy moved through the process as stand-alone bill, there would be a period of several weeks from the time it was introduced, then scheduled for an initial hearing, then go to the Rules Committee, caucus, Committee of the Whole and third reading in the chamber it was brought forward in. If it passed that chamber of the Arizona Legislature, it would then go through the same process in the other chamber.
“Throughout that time period we would have been able to produce data, research and other written material to inform the public, media and lawmakers why they should oppose the legislation,” Lujan said.
“We would have been able to schedule time to meet with lawmakers and testify in the committees in opposition to the legislation. We would have had time to make people aware of the legislation and inform them on the various ways they could engage in the legislative process to oppose the legislation – call their legislators, testify in committee, email their legislators, et cetera,” Lujan said.
Earlier this session, Senate Bill 1532, which would have required that any controversial concepts discussed in the classroom be done from diverse and contending perspectives without giving deference to any one perspective passed along party line in the Senate, was amended and passed in the House then failed when it returned to the Senate.
Soon after, Gov. Doug Ducey vetoed 22 bills the Arizona Legislature sent him on May 28, 2021 saying “Today, I vetoed 22 bills. Some are good policy, but with one month left until the end of the fiscal year, we need to focus first on passing a budget. That should be priority one. The other stuff can wait.”
We have the opportunity to make responsible and significant investments in K-12 education, higher education, infrastructure and local communities, all while delivering historic tax relief to working families and small businesses. 2/— Doug Ducey (@dougducey) May 28, 2021
Once the budget passes, I’m willing to consider some of these other issues. But until then, I will not be signing any additional bills. Let’s focus on our jobs, get to work and pass the budget. 3/3— Doug Ducey (@dougducey) May 28, 2021
When some of the 22 bills were re-introduced in the Arizona Legislature and failed, Republican leaders inserted provisions of some like the prohibiting the teaching of controversial concepts and curriculum in the budget bills and other Republican legislators added on others through amendments to the budget bills.
“As for curriculum, Arizona teachers should be able to teach an accurate portrayal of history, provide clear historical context for art and literature, and employ a culturally resonant and reflective curriculum without fearing punitive measures such as the loss of their license. Local school boards should set the curriculum, not the state,” Lewis said.
“As a parent, I want my child to learn accurate history, to be exposed to multiple points of view, and to be taught how to formulate their own ideas. I want them to read books about children from different backgrounds, and experience different cultures. I do not want them to learn a whitewashed history in classrooms that are silenced or stifled by gag orders,” Lewis said.
AEA’s Joe Thomas said, “The Teacher Gag Law will have a chilling effect on teachers’ ability to do their jobs and further worsen our state’s teacher shortage crisis.”
“Forcing teachers to be silent on racial injustice furthers racial inequity and stops progress towards education justice in our schools,” said Thomas with AEA. “Teachers want to be able to provide an honest education to our students, but this law makes teachers weigh telling the truth in class against losing their certification.”
“Governor Ducey and the Arizona Legislature had a real opportunity to fully restore education funding this session. Instead, they passed laws that attack our teachers and put our children in harm’s way. Their efforts are meant to divide our communities and distract them from the fact that our leaders have failed to fund our public schools,” Joe Thomas said. “We urge lawmakers to listen to their constituents and make the right decision to ensure our classrooms and campuses are safe so we can keep our students learning in our classrooms.”
“AEA and its 20,000 members are committed to our mission of Keeping the Promise of Quality Public Education. At the core of that promise is an unwavering commitment to the health and safety of our students and staff. We will advocate necessary to deliver on that promise so that every student in the state has access to a quality public school. AEA is proud to stand alongside other public education champions in this effort,” said Joe Thomas.