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With deadline looming, Az court reviews ban on school COVID mask & vax requirements

A Maricopa County Superior Court Judge is reviewing whether to scrap Arizona's pending ban on school mask mandates and vaccination requirements before it takes effect on Sept. 29.

Earlier this year, the state Legislature passed a trio of bills intended to block public school districts from implementing masks and requiring vaccines. Gov. Doug Ducey signed the new laws, but they are not yet in effect. A coalition of educators, school board members, child welfare advocates and others filed suit, arguing that the measures violated the state Constitution, including a requirement that bills be limited to one subject and that a bill's overall title represent its contents.

The group also challenged a fourth bill that bars the teaching of anything in public schools "that presents any form of blame or judgment on the basis of race, ethnicity or sex."

During a virtual hearing Monday, the attorney for the coalition—which includes the Arizona Educational Association, the Children's Action Alliance, the Arizona School Boards Association, Arizona Advocacy Network and 11 individuals—told Superior Court Judge Katherine Cooper that children could die if she does not block the laws. 

“Unless the laws challenged in this case are 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,” said attorney Roopali Desai.

"This is not hyperbole, it is the irreparable harm that plaintiffs are trying to prevent by bringing this lawsuit," she said. Desai noted that one out of every four COVID-19 cases in Maricopa County were children, and that schools that maintain mask mandates in spite of the new law have a lower rate of COVID-19 infections than those without.

In recent weeks, school districts in Southern Arizona have set up quarantine policies and mask mandates to manage the beginning of the school year against the rising tide of COVID-19 cases driven by the Delta variant. There were another 2,609 new confirmed COVID-19 cases in Arizona on Tuesday, and 117 deaths. Across the state, community transmission of the virus remains "high" in every county. 

"This case is not about the substance of policies of various provisions we’ve challenged but present a textbook example of legislative enactments that violate the Constitution’s single-subject and title requirements," Desai said.

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Representing the state government, Patrick Irvine argued that Arizona law does not require a budget reconciliation bill provision to be directly related to the general appropriations, and that the Legislature is "given a lot of discretion, a lot of wiggle room."

"Part of the argument that’s made is that there has to be a direct connection between the budget reconciliation bill and the feed bill,” he said. “To say that the budget reconciliation bill provision has to be directly related to the general appropriation is not the standard."

The lawsuit questions four bills in particular: House Bill 2898, Senate Bills 1824 and 1825, which relate to health and education, according to the complaint. The fourth, Senate Bill 1819, focuses on budget procedures and reconciliation, which the lawsuit says are a violation of the single-subject rule.

The hearing came within weeks of a looming deadline for school districts throughout the state that have implemented mask mandates in spite of Arizona's HB 2898 which "prohibits counties, cities, towns, schools, and school districts from requiring students or staff to wear a face-covering during school hours and on school property."

In late June, the Legislature tucked three bills into a last-minute, must-pass budget reconciliation package that was quickly signed into law by Gov. Ducey. Despite the bills, on June 30, facing a rising number of COVID-19 cases as students prepared to go back to school, Phoenix Union High Schools said that it would require masks. This was followed by Tucson Unified School District, which also mandated masks.

Within weeks, at least 14 school districts across the state have implemented mask mandates, including Amphitheater Public Schools, Flowing Wells Unified School District, Sunnyside Unified School District, Catalina Foothils School District. Overall, nearly 85,000 students are included in these districts alone.

The districts argued that while the Legislature backdated the law, it could not be effective until 90 days after the end of the legislative session, which would be Sept. 29, and in mid-August, Maricopa County Superior Court Judge Randall H. Warner agreed, writing that the law has "not yet become effective."

As the lawsuit moved forward, Ducey announcing two moves to punish school districts for implementing mask mandates using federal dollars. One will give public schools and charters "following all state laws and remaining open for in-person instruction as of August 27 and throughout the remainder of the school year" funding through the  Education Plus Up Grant. The second will give parents up to $7,000 to leave districts that have decided to implement mask mandates, quarantine students exposed to COVID-19, or have been forced to close because of outbreaks.

Desai argued that Republican state lawmakers violated a constitutional provision, reinforced by a 1966 decision, which requires bills to be focused on a single subject.

"The purpose of the constitutional provision is to prevent the surprise and evils of omnibus bill and surreptitious legislation by requiring the title of an act to generally inform the public of the app content that purpose remains true and applicable today," said Desai. "There is simply no way to square the provisions at issue in this case, with a constitutional mandate."

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"The challenged provisions," Desai said, have nothing to do with budget reconciliation, she said. And, she argued that Cooper could sever these bills from the budget bill, without affecting the budget. She said that the other provisions, including one that bars colleges and universities from imposing vaccine requirements as a condition to attend classes and prohibits the establishment of a "vaccine passport" should also be challenged.

HB 2898, Desai said, "interferes with public school students fundamental right to an education in a reasonably safe setting."

Irvine defended the legislation, writing that the body had done this for years, and argued that there really is no definition of what a reconciliation bill must require, rather "to the extent a budget reconciliation bill is necessary to implement the budget, that is something that the legislature gets to decide."

"It is not strictly applied," Irvine argued. "The legislature is given a lot of discretion, a lot of wiggle room."

"And really the issue here, it really does come down to what are budget reconciliation bills and what is the constitutional standard for applying them," Irvine argued. "And the central point raised by the plaintiffs, is that the challenge provisions aren't related to the budget."

Here Cooper interrupted him, and asked if there's a different constitutional standard for a budget reconciliation bill than another kind of bill.

Irvine argued that it's a question of "determining what does budget reconciliation bill includes." The courts, he said should be generally deferential to the Legislature.

Desai argued that titles are necessary to "put the public on inquiry about what is in the proposed bill, and to avoid forcing a legislator to make a Hobson's choice between accepting the entire bill, including measures she opposes or voting no on the entire bill including measures she supports." 

"That’s exactly what happened this session," Desai said.

Desai also cited a text message from Senate President Karen Fann, who worked to explain how the bill got the 16 Republicans onboard, including Sen. Paul Boyer, a Republican from Glendale.

“It was a budget bill and we had to give him some really crappy things to get him on board,” Fann wrote. “Talk about blackmail."

Desai also played a recording of state Sen. John Kavanaugh, who argued that bills "should stand on their own" and not be packed into the budget bill. "The budget should be, again, with some occasional exceptions, about spending money, while policy directly spending money," Kavanaugh said in 2006. "This is very, very dangerous the path that you're going down, trying to put bills into a budget is not the proper way." 

Desai warned Cooper that there were implications to allowing the Legislature to answer the question of what the state Constitution requires.

"If the court were to follow the logic the state is advancing, the Legislature could eviscerate the Constitution by putting everything in a budget reconciliation bill and then saying to the court, ‘You can’t look at it, you can’t analyze it,’" she said.

"But what we're saying is that the definition of budget reconciliation bill cannot be narrowed down as they are seeking to do that," Irvine said, adding that's what the Legislature decides "when it comes to what is necessary for the budget, what do these terms mean?" 

He said that Cooper is facing a challenge, trying to draw a line "between what is necessary to implement the budget and what isn't."

"There are many provisions in the bills that do things that may or may not be necessary to implement the budget," he said. And, determining what's necessary is "fraught with peril," he said.

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Cooper said she would take the matter under advisement, and would rule before Sept.  29.

Pima County argues 'rushed' H2898 creates 'nonsensical' ban

In a briefing submitted to the court, Pima County Attorney Laura Conover said that local officials were surprised by the new law's prohibition against masks, because the version submitted in May, included language that granted Arizona school districts and charter schools the "explicit autonomy to mandate masks. However, by June, the bill submitted to the House floor was "180-degrees different from the original language: rather than granting Arizona school districts the autonomy to mandate masks in schools (consistent with the CDC, ADHS, and the Governor’s executive order), the amended language now prohibited school districts from requiring masks." 

And, she complained that because the bill was reintroduced to the House and Senate Committee of the Whole, "only legislators could discuss the bill." she wrote. "There was no opportunity for experts, or the public, or school officials, or county health officials to provide public input."

She also argued that the bill excludes masks, even for classes that regularly require them to protect the health and safety of students, including: dental assisting; welding; HVAC; construction; automotive; precision machining; automotive collision repair; bioscience; home health; fire science; and chemistry.

"If HB 2898 stands, school districts will be prohibited from mandating that students wear face coverings during these dangerous in-class activities–not just to limit the spread of COVID-19," she said. "This nonsensical result is the consequence of rushed, non-transparent legislation about schools and counties without their input."

The rush to pass the bill in 72 hours meant that "with less than a week’s notice, Arizona counties and schools faced the prospect of prohibitions on their ability to protect public health amid a global crisis as the highly contagious COVID-19 delta variant gained steam across Arizona." And, this occurred even as transmission of the Delta variant accelerated, and by August 6, the CDC updated Pima County's transmission rate from "substantial" to "high."

"Pima County residents were contracting COVID- 19 at a higher rate at the start of school in 2021 (229 per day), than when mask mandates were allowed in March of 2020 (190 per day)," she wrote.

"By the end of August, school districts that did not implement mask mandates, or that implemented them several weeks into the school year, were experiencing significant COVID-19 infection rates – putting students, families, staff, and the greater Pima County community at higher risk of contracting a contagious and deadly disease," she wrote.

Conover wrote that Vail School District, which opened without a mask mandate endured an infection rate double TUSD's even though the district has roughly one-third of the students.

By Aug. 31, Vail has an infection rate of 1.3 percent, the highest in Pima County, and more than double TUSD's.

Conover wrote that the provisions limiting masks and vaccinations violate the single-subject rule, and that the revisions to the bill includes language that "sticks out like a sore thumb."

"Ultimately, the Legislature lumped these subjects, together with prohibitions on mask and vaccine mandates, into 229 pages of statutory changes through HB 2898," she said. Conover said the version of the bill introduced in May was 111 pages, but the amended version added over100 pages of new changes, "passed by a razor-thin majority of the Legislature only hours after the new language was made public in late June."

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"This is precisely the danger Arizona’s single-subject rule is designed to protect against – last minute 'log rolling,'" she wrote.

Conover told the court that the harm caused by stripping Arizona counties and schools of their autonomy in determining whether to mandate masks and vaccines is not speculative, and she criticized the state's argument that the additions were "tangentially" related, calling the state's arguments ex post facto.

"The Arizona Constitution requires legislation to embrace but one subject and matters properly connected," she said. "The test for whether a matter is 'properly connected' cannot rest on whether an adroit attorney can imagine and articulate an ex post facto justification – that will almost certainly always be the case."

"Here, the legislative record reveals an intent driving legislative language that is wholly unrelated to the subject of the act," she said.

Conover also attacked the state's argument that mask mandates or vaccinations could drive down school enrollment.

"While this assertion may present a tangential financial connection, it does not present a logical or natural connection. And, it does not exist in the legislative history," she said. "Arizona’s public school districts fight tooth and nail to maintain enrollment to retain a slice of limited available funding." 

"It is not natural or logical that school districts would jeopardize enrollment or funding in exchange for strict adherence to mask or vaccine mandates," she wrote. "It is much more logical and reasonable that more parents would prefer to enroll their kids in schools with strict COVID-19 mitigation efforts to ensure their health and safety – particularly for students 12 years old and younger and not eligible to be vaccinated."

She noted that TUSD avoided removing students from the district.

TUSD outlined its own mask mandate in a memo to the student superintendent of schools, writing that TUSD serves over 40,000 students, and impacts the lives of over 100,000 families, guardians and employees and their families.  "To protect the health and well-being of our students, their families, and our staff and their families, TUSD enacted a universal mask mandate for the start of the 2021-22 school year as recommended by the Pima County Health Department and the Centers for Disease Control and Prevention."

The district said that it avoided excluding students, and that TUSD principals are "under strict directives not to engage in exclusionary actions for students refusing to mask in the face of our mask mandate." Instead, teachers are "encouraged" to socially-distance the student, and give students alternative activities during a team assignment. 

"As a last resort, if a student repeatedly refuses to wear a mask, the student may be subjected to placement into the Tucson Unified Virtual Academy. The district said this was "consistent" with its obligation to provide free and appropriate education to qualified students with disabilities. 

"We work to accommodate the student while continuing to provide the best quality education possible," district officials said.

"It is wholly illogical that we would dis-enroll a student for not wearing a mask, that would be against the student’s emotional and academic well-being as well as contrary to our mission of welcoming, caring for, educating, and ensuring the personal and academic success of all the children and young we serve as a district and learning community."

The district said that "Luckily, this has not even been a frequently occurring issue," adding that during the first month of school, the district assigned a few students to TUVA in "exceptional circumstances and isolated situation."

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A Maricopa County Superior Court judge will consider a lawsuit over the state's ban on mask mandates.

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