One of the most polarizing issues in Tempe Union, Kyrene and most other school districts likely won’t be going away any time soon after a judge ruled the ban on mask mandates and a slew of other measures passed by Republican legislators unconstitutional.
In a blistering opinion Monday, Maricopa County Superior Court Judge Katherine Cooper voided the ban on mask and vaccine mandates along with a number of other measures Republicans had tacked onto the state budget bill with no hearings in the waning days of the session.
The ruling means that – at least for now – Kyrene and Tempe Union school districts can continue their mask mandates.
“In light of today’s ruling, Kyrene School District will continue its current mitigation strategies, as outlined in the leveled mitigation plan, which includes a requirement for face coverings indoors, when community transmission is ‘substantial’ or ‘high,’” Kyrene spokeswoman Erin Helm said. “If this case advances through the courts, the District will be following closely. Kyrene remains committed to following all state and federal laws and orders as we navigate the constantly evolving landscape of this global pandemic.”
Tempe Union spokeswoman Megan Sterling said, "TUHSD will continue with all current health & safety procedures, including masking while indoors. We will of course follow this case closely as it makes its way through the courts and we remain committed to following all state and federal laws as we work to keep our students, staff, and great community safe."
The Legislature filed an emergency appeal with the state Supreme Court but lost its request to stay Cooper's ruling. Cooper also said if lawmakers try to enforce the provisions she declared unconstitutional, she will issue further orders.
That means only a stay by an appellate court can stop school districts from keeping mask requirements in place. The high court promised an expedited appeal, directing both sides to file briefs by Friday.
Ducey press aide C.J. Karamargin called the ruling "clearly an example of judicial overreach.''
"It's the duty and authority of only the legislative branch to organize itself and make laws,'' he continued. "Unfortunately, today's decision is the result of a rogue judge interfering with the authority and processes of another branch of government.''
Kyrene Governing Board held a 90-minute exectuive decision prior to its public meeting Sept. 28 to discuss “school safety operations or school safety plans,” which presumably included the mask mandate.
And during the meeting, several dozen parents either in-person or in emails, expressed their feelings about Kyrene's mandate with opponents decrying it as government intrusion into parental rights and mask proponents thanking the board for protecting children.
Both Kyrene and Tempe Union reinstituted mask bans after a different judge in a different case ruled that the ban could not take effect until Sept. 29.
Both districts will be on break next week.
The continuation of the mask mandate drew more than 90 minutes of pro and con comments from parents at Kyrene Governing Board’s last meeting earlier this month and it’s likely that Cooper’s ruling will continue to stir the pot not only here but at many other governing boards’ meetings.
In addition to the mandate ban, Cooper also voided a host of other laws approved by the Legislature that ranged from requirements for anti-fraud measures for ballots and prohibitions against cities and town from requiring face coverings or imposing curfews to banning proof of vaccination to attend universities or community colleges and limits on teaching what lawmakers have incorrectly referred to as "critical race theory.''
Cooper did not find that any of these provisions by themselves is illegal.
What is illegal, she said, was piling them into just four separate so-called "budget reconciliation'' bills, each with what she said are broad, generic titles that fail to inform voters of the changes they enact.
Cooper said there are separate constitutional requirements that legislation deal with only a single subject.
"Together these requirements promote transparency and the public's access to information about legislative action,'' she wrote.
The judge also brushed aside claims by the state that the issue of how legislation is crafted is a "non-justiciable political question'' beyond the reach of the courts.
"The issue here is not what the legislature decided but how it decided what it did,'' she wrote. "Whether the legislature complied with the requirements of (the Arizona Constitution) and whether a provision is reasonably related to 'budget reconciliation' are questions property before the court.''
Monday's ruling does more than void the challenged sections of the laws.
It also sends a message to lawmakers that they can no longer use the practice of piling apparently unrelated issues into bills in an effort to corral the votes for the entire package. And that could result in difficulty in getting approval of future controversial measures.
For more than a month, there has been an ongoing debate between Ducey on one hand and some school districts, including Tempe Union and Kyrene, on the other over whether that ban has been in effect since he signed it into law in June.
Today was the date that Maricopa County Superior Court Judge Randall Warner in August determined was the effective date for the ban.
Ducey vowed to withhold $162 million in pandemic relief money for school districts that took advantage of Warner’s ruling and imposed mask mandates at least until today.
If Ducey follows through on his threat, it could cost Kyrene $5.2 million and Tempe Union $2.8 million. The Biden administration has promised to fund districts in other states that have been financially penalized for imposing mask mandates but has not made much of Arizona’s ban beyond some initial threats weeks ago.
The case before Cooper involved a challenge filed by a coalition of educators, school board members, child welfare advocates to the way the ban on mandates was passed by the Legislature.
"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,'' Roopali Desai told Cooper.
She said that's backed by evidence that shows not just an increasing number of cases among children – now one out of every four in Maricopa County – but also that schools with mask mandates have a lower rate of infection than those without.
Her argument has the support of state Superintendent of Public Schools Kathy Hoffman, who on Friday cited a new Centers for Disease Control study that showed the efficacy of masks in curbing COVID-19 infections in schools.
The CDC on Friday said it had studied case data from July and August from school districts in Pima and Maricopa counties and found, “the odds of a school-associated COVID-19 outbreak were 3.5 times higher in schools with no mask requirement than in those with a mask requirement implemented at the time school started.”
Hoffman within hours released a statement that said:
“New data from Arizona schools shows what public health experts have been telling our Governor for months: universal masking keeps students learning in person.
“It is irresponsible of the state government to stand in the way of local leaders making decisions that protect the health and safety of their students and staff. Until we have suppressed community spread by vaccinating more individuals, including children under 12, universal masking will continue to be a critical tool in limiting the spread of the virus in our schools.”
Desai told Cooper that the larger and legally binding reason she should declare the provision banning mask mandates illegal is that it was tucked into a bill simply labeled a "budget reconciliation'' measure. And that, she said, means it violates a constitutional requirement that the title of a bill must reflect what's in it.
Ditto, Desai said, of provisions she is challenging that were tucked into various measures, like one that bars colleges and universities from imposing vaccine requirements as a condition to attend classes, prohibits the establishment of a "vaccine passport,'' and bars the teaching of anything in public schools "that presents any form of blame or judgment on the basis of race, ethnicity or sex.''
"The challenged provisions ... have nothing to do with budget reconciliation,'' she said, which are supposed to be provisions designed to put into effect the changes made in spending bills.
In defending the laws, attorney Patrick Irvine argued that the Legislature has used this procedure for years and that there really is no definition of what is a "reconciliation'' bill.
"It is not strictly applied,'' he argued. "The Legislature is given a lot of discretion, a lot of wiggle room.''
While the mask mandate and vaccine bans don’t have specific penalties for government entities that disobey it, state Attorney General Mark Brnovich has told Tucson it could lose out in $120 million in state share revenue if it tries to enforce a vaccine mandate for city employees.
What is clear – and Cooper could void – is has been practice of lawmakers to pile various issues into various end-of-session "reconciliation'' bills for years. And it's been done for political reasons.
Consider the bill to prohibit what has incorrectly been called "critical race theory'' having to do with how teachers can deal with issues of race, sex or ethnicity.
It failed to get the necessary votes when it was considered as a separate measure. But then it was inserted into a reconciliation bill along with other items on the wish lists of various other legislators to cobble together the necessary Republican votes.
What makes all that illegal, Desai argued, is that tucking those changes into "reconciliation'' bills or bills simply labeled "budget procedures'' does not meet the constitutional requirement that the public be informed of what is included.
It's also illegal, she said, because it forces a legislator "to make a Hobson's choice between accepting the entire bill, including measures she opposes, or voting 'no' on the entire measure, including measures she supports.''
Data released last week by the county health department shows a continuing high transmission level of COVID-19 within both Kyrene and Tempe Union school districts.
Cases per 100,000 people were at 235 and positive new test results remain around 11 percent.