Tucson-area school districts celebrate ruling halting Az laws that blocked COVID mask mandates
Gov. Ducey called judge's decision 'judicial overreach'
Local school leaders, Pima County leaders and Democratic state legislators said that a judge made the "right call" with a Monday ruling that a series of laws passed by the Arizona Legislature barring schools from implementing COVID mask and vaccination mandates was unconstitutional.
Several local school districts had planned to challenge the law by continuing to require students and teachers to wear masks on campus after a Wednesday deadline that would have been imposed by the laws. School leaders welcomed the decision, and said Monday that they will continue to mandate face coverings and require students exposed to COVID-19 to quarantine.
Meanwhile, Gov. Doug Ducey called the judge "rogue," and said her decision was "clearly an example of judicial overreach."
Related: Arizona judge strikes down bans on school mask mandates, critical race theory & more
In a 17-page decision, Maricopa County Superior Court Judge Katherine Cooper found that the Legislature violated a requirement of the state Constitution that bills be limited to one subject, and that a bill's overall title represent its contents. Instead, the Legislature had engaged in "logrolling" by passing the bills as part of the state's $12.8 billion overall budget package.
The decision was the result of a lawsuit launched earlier this year by a coalition of state education groups—including the Arizona Educational Association, the Children's Action Alliance, the Arizona School Boards Association, Arizona Advocacy Network and 11 individuals over three measures that were wrapped into a last-minute, must-pass budget reconciliation package.
Included in the package were bills that blocked local governments from implementing mask mandates, as well as prohibiting vaccination requirements, and prohibiting so-called "vaccine passports." This includes a bill that banned "critical race theory," blocking public schools from teaching anything that "presents any form of blame or judgment on the basis of race, ethnicity or sex."
The measures were supported by the Republican majority in the Legislature, and the packaged legislation was quickly signed into law by Ducey.
In her ruling, Cooper said that the court was not asked to "decide 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," she wrote. While the Legislature has "discretion to title a bill...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."
"We are still reviewing the ruling, but this decision is clearly an example of judicial overreach," said C.J. Karamargin, a spokesman for the governor's office. "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," he said. "Unfortunately, today's decision is the result of a rogue judge interfering with the authority and processes of another branch of government."
"Further action will be taken to challenge this ruling and ensure separation of powers is maintained," Karamargin said.
The fight over masks comes just as a CDC study, evaluating 999 schools in Maricopa County and Pima County, found that schools that do not require face masks are 3.5 times more likely to have an outbreak of COVID-19.
On Monday, Arizona had 1,959 new COVID-19 cases reported, according to the Arizona Department of Health Services. And, as the state slowly sees a stemming of a third spike of hospitalizations since the pandemic began, there were 19 additional people hospitalized for novel coronavirus infections on Monday, ADHS said.
Ducey's office did not respond to a question about how the ruling would affect two programs that the governor announced to punish school districts for implementing mask mandates, redirecting federal dollars from them.
As the lawsuit moved forward, Ducey said that he would 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. He also said he would 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.
Kathy Hoffman, Arizona's superintendent of public instruction, criticized the Republican governor and lawmakers Monday and welcomed the decision, as did U.S. Rep. Raul Grijalva.
"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," said Hoffman, a Democrat, who on Monday criticized Republicans for "passing overwhelmingly complex laws in the eleventh hour without public comment," calling it "an assault on the democratic process."
Grijalva said Tuesday that the Republicans had been "negligent."
"Rejection of the unconstitutional ban on masks by the courts is welcome news," the Democratic congressman said. "The GOP state Legislature and governor’s attacks on scientifically backed health mitigation strategies to protect children need to stop. They put our children at risk and demonstrate a level of irresponsibility that is hard to match. It’s time for the governor to drop the act and keep our schools open safely. Parents should not have to choose between the safety or education of their child."
Many Tucson-area districts requiring masks
The head of Tucson's largest school district—Tucson Unified School District—said the decision "validates" a move from the district's school board, who agreed to continue requiring masks even as the district faced a looming deadline over the bill, which was set go into effect on Wednesday, Sept. 29.
Over the summer, school districts—facing a rising number of COVID-19 cases as students prepared to go back to school—revolted against the bills, and began requiring masks.
Phoenix Union High Schools announced that it would require masks, and was followed by Tucson Unified School District to start the school year.
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.
Law not yet in force
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."
"Today's ruling not only celebrates the rule of Arizona constitutional law, it also validates the action taken by our Governing Board on September 23rd to continue a mandatory mask policy in the Tucson Unified School District as fully lawful action taken in the spirit of public health and as a measure necessary to protect the students, staff, and community we serve," he said.
Last week, the district also said that it would enlist the help of the Justice Department and the Education Department to push back against the state and "protect and educate all students, including those who are considered medically fragile or have disabilities that place them at a significantly higher risk of serious COVID-related illness."
"Our district proudly serves just shy of 7,000 Exceptional Education students, many of whom meet the definition of medically fragile or have 504 plans necessary to address significant health issues," the district said. "Our mandatory mask policy shall continue indefinitely until our Governing Board determines it is no longer necessary, a determination they have committed to making according to the recommendations and guidance of the Pima County Health Department, the Arizona Department of Health Services, and the Centers for Disease Control."
"Throughout this pandemic, your patience, flexibility, support, and resilience have been our most valuable weapons in this continuing fight against COVID 19," they said. "Together, we can strive for a COVID-19 free TUSD for everyone, especially for those most at risk."
TUSD Governing Board President Adelita Grijlava called Cooper's ruling a "relief."
"It basically means we can continue to keep students and staff safe, and not violate state law," she said. "We did not think that that law was constitutional, before we've been worried about the fear that would go through everyone on the 29th of September," she said.
Grijalva said that the decision also means that while TUSD decided to continue its mask mandate in spite of Wednesday's deadline, Cooper's ruling would help some schools continue to enforce mask mandates.
"There are some parents who have accused us of violating state law, and this ambiguity has made it difficult. With this decision we can continue to focus on doing what we need to do," she said.
TUSD will also begin voluntary "pooled" testing at schools, the district announced Monday. "Without knowing the specific prevalence of COVID-19 in our school, it's tough for us to make informed decisions about safeguarding our school community or continuing in-person learning," the district said, asking for people to join the program over the next few weeks.
Catalina Foothills School District responded simply, telling parents and students that the district would keep requiring masks on campus.
"We are focused on keeping our schools open and our community healthy. Thank you for working with us to achieve these twin goals," wrote Julie Farbarik, a spokeswoman for the district.
Sunnyside Unified School District said that on Tuesday the board would vote on whether to keep a mask mandate throughout the district during a regularly scheduled board meeting.
Pima County Board of Supervisors Chair Sharon Bronson praised Cooper's decision, writing in a statement that the Legislature's use of budget reconciliation bills kept schools, county governments and others "from taking sensible measures to prevent the spread of COVID-19."
"During a pandemic, governments should use every tool available to protect the public from the spread of the contagious disease," Bronson wrote. "Face masks, distancing, quarantines and vaccines have worked before and they're working now. That's why it made no sense for the Arizona Legislature and Gov. Doug Ducey to handcuff schools and local governments with foolish prohibitions on sensible mitigation measures," she said.
"It's a huge relief that with this ruling by the Superior Court our public schools, county public health agencies and other governments can now assess their potential COVID-19 outbreak and transmission risk and take the necessary steps – including mandates if needed – to protect their students, staff and the public from the continued spread of this disease without fear of penalty or punishment by the state," Bronson said.
House Democrats said Cooper made the "right call."
In a statement, Reginald Bolding, the Democratic leader in the state House of Representatives, said Cooper's decision is "a huge win for Arizona students, teachers and staff as school districts continue the difficult job of mitigating the spread of COVID-19 in our classrooms."
In her decision, Cooper ruled that the state's single subject rule was intended to prevent a practice known as "logrolling," or the "practice of lumping multiple subjects into one bill so that a vote to support a favored measure is a vote to support all measures."
As Bolding put it, "Judge Katherine Cooper ruled that the ban on mask COVID-19 mitigation steps, as well as several other controversial Republican policy items included in the most recent budget, violated the Arizona Constitution's title and single subject rules, and were 'classic logrolling – a medley of special interests cobbled together to force a vote for all or none.'"
He added that Cooper's decision a "strong rebuke of Republican lawmakers who garnered votes for their budget by including several controversial policy items from members who couldn't otherwise get those bills passed."
"As the judge noted – and as our House and Senate Democratic amicus brief laid out – that is logrolling and violates the single-subject rule," he said. "Since multiple school districts stood up for the safety of their students and staff, and since this lawsuit was filed, we have learned that COVID-19 has spread four times faster in schools that don't require masks."
"It's time for Gov. Ducey and Republican lawmakers to stop standing in the way of science, effective public health measures, and common sense. Lives are depending on our leadership, so let's all start showing some," Bolding said.