Arizona's Ban On School Mask Mandates Is Unconstitutional, Judge Rules

Published: Monday, September 27, 2021 - 1:31pm
Updated: Monday, September 27, 2021 - 5:14pm

A judge ruled that a ban on public school mask mandates, as well as a variety of other laws shoehorned into the state budget by Republican lawmakers, is unconstitutional.

The ruling frees public school leaders across Arizona to require students, staff and visitors to wear masks on campus. The law banning that authority was scheduled to take effect on Wednesday.

Already, Phoenix Union, the first school district to defy the governor and Republican lawmakers, and Tempe Union high school districts have said they plan to keep their mask policies in place. 

A host of other policies adopted as part of the budget are also voided, including a ban on vaccine requirements for public universities, community colleges and local governments; anti-fraud measures for ballots; and a ban on teaching critical race theory in public schools.

→ Poll Shows Majority Of Arizona Voters Are For Mask Mandates

All of it, Maricopa County Superior Court Judge Katherine Cooper wrote, is unconstitutional and unenforceable.

“The issue here is not what the Legislature decided but how it decided what it did,” she wrote.

Cooper cited two rules in the Arizona Constitution to support her ruling. One states that a bill can only tackle one thing, or one single subject, at a time. When it comes to the budget, the subject is clearly supposed to be how to spend taxpayer dollars, Cooper wrote. Another constitutional rule requires bills to be given a title that accurately reflects the content of the bill.

In four budget bills, Republican state lawmakers violated at least one, or in one case, both of those rules, Cooper wrote.

That one case included what Cooper described as an array of provisions that “are in no way related to nor connected with each other or to an identifiable ‘budget procedure.’”

The 55-page Senate Bill 1819 included policies that stripped the Democratic secretary of state of the authority to defend, or choose not to defend, Arizona election law; a broad preemption of local COVID-19 mitigation requirements for private businesses; a special committee to receive reports from a widely criticized, GOP-led review of the 2020 election in Maricopa County; and time limits on a governor’s declaration of a public health emergency.

“The bill is classic logrolling — a medley of special interests cobbled together to force a vote for all or none,” Cooper wrote.

She rejected arguments from the state’s attorney, who said the Legislature has broad authority to interpret what policies fit under the title of a bill and what qualifies as the “single subject” a bill can deal with.

If the state’s idea of the rules for budget bills were upheld, “going forward, the Legislature could add any policy or regulatory provision to a [budget bill], regardless of whether the measure was necessary to implement the budget, without notice to the public,” Cooper wrote. “The State’s idea of ‘subject’ is not and cannot be the law.”

Through a spokesman, Republican Gov. Doug Ducey called the decision “an example of judicial overreach.”

“Arizona’s state government operates with three branches, and it’s the duty and authority of only the legislative branch to organize itself and to make laws,” spokesman CJ Karamargin said. “Unfortunately, today’s decision is the result of a rogue judge interfering with the authority and processes of another branch of government.”

In a statement, Republican Attorney General Mark Brnovich said he’ll appeal the ruling.

Cooper addressed claims of overreach in her ruling, noting that she didn’t address the policies Republicans sought to enact, but whether lawmakers followed constitutional mandates when writing and voting on those laws — an issue the courts have a history of determining, she wrote.

Educators, Parents Applaud Ruling

Superintendent Kathy Hoffman, a Democrat, praised the ruling as a welcome harbinger of change to the legislative process in Arizona, where Republican legislators routinely leverage their votes for the budget in exchange for something in return — in this case, substantive policy changes that Cooper ruled have no businesses being included in the budget.

Hoffman described the Republican standard operating procedure as “an assault on the democratic process,” and urged the state to let the ruling stand.

“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,” Hoffman said.

But for now, the ruling has brought relief to some teachers and parents.

“A lot of our educators were afraid of what was going to happen on Thursday, they knew this law was going to go into effect and they were really afraid to see what it was going to feel like going to school with unmasked children who had not been vaccinated, said Marisol Garcia, vice president of the Arizona Education Association, one of the plaintiffs in the lawsuit that challenged these laws.

“My kids can continue to wear masks at schools, keep themselves safe and keep their friends safe, keep their teachers safe and we can get through this pandemic quickly while we are waiting for that vaccine to get approved for those five through 11 year olds,” said Trevor Nelson, a father of four students in the Paradise Valley Unified School District.

The ruling may also impact Ducey’s efforts to discourage Arizona public school leaders from requiring students and staff to wear masks. 

In August, he announced grants to boost per pupil funding in public and charter schools, but only for schools that make masks optional and keep classrooms open for in-person learning. Ducey is also offering vouchers to families who want to opt out of school mask mandates, to cover private school tuition. Those programs are funded by federal COVID-19 relief funds.

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