Arizona judge rules school mask mandate ban unconstitutional

PHOENIX - A judge has struck down provisions Republican lawmakers tucked into the Arizona budget that block schools from requiring masks and restrict the power of local governments to impose COVID-19 requirements. 

The ruling was made on Sept. 27, just days before the ban was officially set to take effect on Sept. 29. Despite the new laws banning mask mandates, at least 29 public school districts in Arizona have enacted their own mask requirements. The districts account for more than a third of the approximately 930,000 students attending more than 2,000 schools run by public districts.

The ruling by Maricopa County Superior Court Judge Katherine Cooper could clear the way for cities and counties to enact mask requirements. She also ruled that an entire budget measure that served as a catch-all for a wish list of conservative policies was unconstitutional.

Declaratory judgment

"Having considered the pleadings and counsels' oral argument and for the reasons stated, the court finds:

• Sections 12, 21, and 50 of HB2898; Sections 12 and 13 of SB1824; Section 2 of SB 1825; and SB1819 violate the title and/or subject matter requirements of the Arizona Constitution, Art. IV, pt. 2, §13 (hereinafter ‘Section 13’), and are therefore void and unenforceable.
• Given the declaration that these provisions are unconstitutional under Section 13, the request for injunctive relief is moot. If non-compliance occurs, further relief is available under AR.S. §12-1838. Similarly, since HB2898, Section 12 (banning masks in public and charter schools) is unconstitutional under Section 13, the Court need not reach the issue of whether it violates the equal protection clause, Arizona Constitution, Article II, §13."

LIST: Arizona school districts with mask requirements

Cooper said the provisions violate a requirement that the content of legislation is described in its title and is confined to a single subject. State attorneys argued that they all had something to do with spending for education and health and that the Legislature didn't need to be more specific.

"That is not correct," Cooper wrote. "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."

"There were a number of specific policy provisions that were challenged as violating the Constitution," said attorney Roopali Desai. "Ones that were most notable were the ban on mask mandates and other COVID-19 medication policies, and the court held that those were unconstitutional and declared that they be removed from the laws that go into effect on Wednesday."

The lawsuit filed by a coalition of educators and allies challenged Arizona laws prohibiting public school districts from imposing mask requirements, colleges from requiring vaccinations for students, and communities from establishing vaccine passports for entry into large events, businesses and other places.

The coalition argued a large number of Arizona children will get sick with COVID-19 if the new law wasn't blocked.

At least 29 public school districts in Arizona have enacted their own mask requirements anyway. The districts account for more than 334,000 students and nearly 500 schools. The law barring mask mandates at public schools was scheduled to take effect Wednesday, as were the rest of the budget bills.

A spokesman for Republican Gov. Doug Ducey, who signed the measures into law, didn't immediately respond to a request for comment on the ruling. An appeal is likely.

The restrictions were written into budget bills that were passed near the end of the legislative session with only support from majority Republicans. The ruling has far-reaching ramifications for the Legislature, which has long ignored the constitutional requirement that budget bills only deal with spending items. Instead, they have packed with them policy items, and this year Republicans who control the Legislature were especially aggressive.

Opponents also asked the judge to undo other laws unrelated to COVID-19 prevention efforts, which she did. One prohibits the use of state money for teaching critical race theory, a way of thinking about America's history that centers on the idea that racism is systemic in the nation's institutions and that they function to maintain the dominance of white people in society.

The judge pointed to the single-subject rule to overturn SB1898, the bill filled with GOP policy wishes. It included what she called "multiple, unrelated subjects" like dog racing, the governor's emergency powers, local COVID-19 measures and much more.

"None of these subjects have any logical connection to each other nor 'fall under some one general idea,"' Cooper wrote.

Other parts of that law that the judge blocked would have stripped the Democratic secretary of state of the duty to defend state election laws, would have let the state Game and Fish Department register voters and would have set up a special legislative committee to review the results of the state Senate's partisan audit of the 2020 election.

Lawyers for the coalition that sued that the law, which was tucked into the main budget legislation, should be blocked entirely because it had virtually nothing to do with directing spending and contained unrelated policy items.

The state, which was sued as part of the legal challenge, argued that how the laws in question were written and their contents are questions for lawmakers, not the courts.

An attorney representing the state said the Constitution does not require lawmakers to specify each item they include in so-called budget reconciliation bills that direct spending and that a ruling agreeing that the Legislature violated the Constitution could upend years of budget measures that added unrelated policy items.

School districts react to judge's ruling

Mesa Public Schools

"Today's court ruling on school facemask bans does not impact Mesa Public School mitigation strategies," the district said in an email. "We continue to strongly encourage staff and students to wear masks while indoors."

Phoenix Union High School District

"Phoenix Union is pleased with the outcome of today’s ruling from the Maricopa County Superior Court. From day one, we have been committed to safely reopening our schools and doing everything in our power to provide uninterrupted in-person learning. The CDC’s recent finding that schools without a masking requirement are 3.5 times more likely to have a COVID-19 outbreak reinforces our masking protocol that has been in place since August 2. The two most effective ways to minimize spread of the virus are the vaccine and universal masking while indoors. For information about PXU’s mitigation efforts, including vaccination clinics, please visit www.PXU.org/BeHealthy. As of today, over 300,000 of Arizona’s children attend a school that requires masks. This ruling can now impact all 1.1 million students who call Arizona’s public schools home. Phoenix Union will trust the guidance of national, state, and local healthcare experts and continue our current masking protocol as a protection to our students, staff, and families."

Scottsdale Unified School District

"SUSD will continue to require masks for students and staff while indoors on our campuses and other district facilities until at least two weeks after we have returned from Fall Break (October 11-15)," the district said in a statement.

Statement from Superintendent Hoffman

"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.

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."

Statement from Attorney General Brnovich

"We will appeal this ruling. It’s unfortunate that left-wing groups want to undermine the legislative process and indoctrinate our children with critical race theory and force vaccines on those who don’t want them. I will continue to stand for the rule of law and the people of Arizona."

Parents react

As news of the ruling spread, parents are split with the decision.

"As a parent, of course I disagree with it," said Crystal Carroll. "I pay taxes to go to the school, and I should have a say in what’s being put in my daughter and my son."

"I think we all had a feeling that this ruling was going to come down," said Phil Bohn. "This has been a law in Arizona for a long time. Unfortunately, the Republicans, Legislature, and Doug Ducey decided to ignore this law, push the anti-mask mandate through, knowing that it was going to be reversed."

Arguments were heard Sept. 13

A judge heard arguments Sept. 13 in the case, which sought to overturn several new Arizona laws that restrict the power of local governments and school districts to impose COVID-19 restrictions such as mask mandates.

The laws in question prohibit public school districts from imposing mask requirements, bar universities from requiring vaccinations for students and forbid communities from establishing vaccine passports for people to show they are inoculated.

A coalition of educators, parents and children’s advocacy groups argue in their lawsuit that the provisions were unconstitutionally tucked into unrelated budget bills. They argued the provisions in several budget bills violate constitutional rules requiring laws to focus on only one subject, and have their contents reflected in the title of the bills. In the case of the school mask ban, they allege it violates equal protection provisions because it does not apply to private school

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Based on this legal contention, the coalition is asking the judge to undo two other laws unrelated to COVID-19 prevention efforts.

One law prohibits the use of state money for teachings at schools that infer that one race is inherently racist, should be discriminated against or feel guilty because of their race. Another law establishes a legislative committee to review the findings of the state Senate review of the November 2020 election results in Maricopa County. The Legislature has routinely tucked all sorts of unrelated items into the budget bills but this year crammed many more than usual. The challengers allege they violate the constitution in each instance.

"Does a bill titled ‘Relating to State Budget Procedures’ give notice that it includes new, substantive legislation covering everything from the definition of ‘newspaper’ to condominium termination requirements, and from investigation of social media platforms to dog racing permitting?" attorney Roopali Desai wrote. "Of course not."

Meanwhile, the attorney representing Arizona Attorney General Mark Brnovich claims they were legally enacted because how the Legislature writes measures and chooses the content are questions for lawmakers, not for the courts. They also argue the groups don’t have a right to sue because they have not been harmed by the laws.

Attorney Patrick Irvine, representing Brnovich, said a court ruling agreeing that the Legislature violated either the title or single-subject rules could upend years of enacted "budget reconciliation bills" or "omnibus reconciliation bills" that also added unrelated policy items. Irvine said if the court is concerned about the Legislature’s practice, it should ban it going forward, not block the current laws.

MORE: Arizona's AG rebuffs Biden DOE's mask probe: Won't 'tolerate' efforts to undermine state sovereignty

"Potentially upsetting scores of BRBs and ORBs, with no warning, would be highly inequitable to the democratic process in Arizona over the last several decades," Irvine wrote.

The Associated Press contributed to this report.

Continuing coverage: mask mandates

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Arizona COVID-19 resources, FAQ: azdhs.gov/coronavirus

In order to protect yourself from a possible infection, the CDC recommends: 

• Avoid close contact with people who are sick.
• Avoid touching your eyes, nose, and mouth.
• Stay home when you are sick.
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
• Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
• Cover your mouth and nose with a cloth face cover when around others
• Wash your hands often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing.
• Monitor your health daily