Gov. Doug Ducey

Gov. Doug Ducey has staunchly opposed mask mandates and the ban on them now goes before the state Supreme Court.

The Arizona Supreme Court has agreed to hear arguments about whether the ban on mask mandates at public schools was legally enacted, but the mandate in Kyrene and Tempe Union school districts likely will remain throughout October at a minimum unless COVID-19 transmission levels subside.

In a brief order, the court set a hearing for Nov. 2 on the bid by Attorney General Mark Brnovich to overturn a Sept. 27 ruling by Maricopa County Superior Court Judge Katherine Cooper that the provision in a new state law blocking schools from making these decisions was approved in an unconstitutional manner.

The move means that Brnovich won’t have to first make his case to the Court of Appeals that Cooper’s ruling, which could forever change how legislation is enacted, overstepped her authority.

It also means that schools with mask mandates, like Kyrene and Tempe Union, can keep them at least through October – if not longer.

But the expedited briefing schedule and the Nov. 2 hearing is a setback for attorney Roopali Desai, who represents the education groups and their allies that first sued and got Cooper to rule in their favor. She had wanted more time to prepare her arguments for the justices, as whatever they rule will set new legal precedents and could change forever how legislation is adopted.

A normal court schedule would give her 30 days to respond to the state’s arguments. Instead, the justices told Brnovich to file his arguments by Tuesday, giving Desai a week after that to respond. And others who want to weigh in have to submit their briefs by Oct. 15.

The justices also made it clear they don’t want to be buried in legal arguments. They limited each side’s opening legal briefs to no more than 5,000 words, about a third of what attorneys normally are allowed to file.

In some ways, the decision to expedite was expected.

The court previously has spurned Brnovich’s arguments that, given the nature of the dispute and the effect on legislation, it should immediately put Cooper’s ruling on hold. The Nov. 2 hearing date guarantees a decision by the high court by the time lawmakers reconvene in January.

Hanging in the balance is the future of the practice of lawmakers to put various apparently unrelated changes in state law into a package of what they call “budget reconciliation bills.’’

Desai charged -- and Cooper agreed -- that the practice at the very least violates a constitutional requirement that the title of a measure reflect what is in it so as to inform not just lawmakers but the public.

The judge noted, for example, that a bill titled as dealing with budget reconciliation for K-12 education also included a restriction on how schools can teach about race and gender, authorized lawsuits against public employees for conduct related to public schools, as well as making it illegal for school boards to require students and staff to wear masks while on campus.

“What do these measures have to do with the budget?’’ Cooper asked.

The judge also voided all or part of three other measures for similar reasons.

Assistant Attorney General Michael Catlett, arguing for Brnovich, contends that it is up to lawmakers to decide what is relevant to a bill. And he said that courts are powerless to tell a separate branch of government how to operate.

Cooper, however, said she is not telling lawmakers what to approve but instead determining if they acted in accord with the Arizona Constitution.

“Whether the legislature complied with the requirements of (the Constitution) and whether a provision is reasonably related to ‘budget reconciliation’ are questions properly before the court,’’ she wrote.

The reconciliation bills have often been used for “logrolling,’’ putting unpopular changes in law into a single package that forces legislators who want another provision to have to support because of the take-it-or-leave-it nature.

That is precisely what happened earlier this year after lawmakers refused to approve a bill that proponents said prohibits the teaching of “critical race theory.’’

For example, it would bar teaching that someone is inherently biased due to those their ethnicity, race or sex, or that an individual should feel discomfort, guilt or psychological stress because of any of the same factors.

But it became part of the larger K-12 budget reconciliation bill, a measure that, aside from the ban on mask mandates, also included changes in state aid formula for schools that many legislators support.

If the Supreme Court upholds Cooper’s ruling, that practice would have to come to a halt.

It isn’t just the Republican lawmakers who control the House and Senate who want the high court to void the decision. Her ruling also drew fire from Gov. Doug Ducey, who supported the changes like the ban on school mask mandates, who called Cooper a “rogue judge.’’

Kyrene and Tempe Union immediately extended their mask mandates indefinitely as soon as Cooper ruled.

And the day after her ruling, opponents and proponents of the move let the Kyrene Governing Board hear their reactions at its regular meeting.

“I love that my child is back to learning, socializing, loving school, developing in-person in the safest environment possible,” said Justin Jensen, who is both a Kyrene teacher and a parent. 

“I love that I can see my kids in person in the safest environment possible,” he said. “I love the amount of learning that I’ve seen occur in the first quarter of the year. I love seeing my kids working together, supporting one another, teaching one another in-person.”

Another parent noted the recent Centers for Disease Control study that reported that school districts in Maricopa and Pima counties that did not have mask mandates in place when the school year began have a 60 percent higher rate of COVID cases than districts that did.

“It’s a difficult decision that you have to make, but please stay strong,” she said. “My kid is thriving and she’s finally back in school.”

Others who spoke to or emailed the board weren’t so complimentary.

One parent called the mandate “a power grab” while another noted nearby districts that make mask optional and sarcastically noted that while the virus was at Cardinals Stadium or in gyms “it seems like it settled here in Kyrene.”

Data released by county health officials last Thursday showed Kyrene’s virus transmission level is in the highest category and was basically unchanged from the previous week with 215 COVID-19 cases per 100,000 people and new positive test results at 10.3 percent.

Another woman said she had been looking forward to Sept. 29, when the mandate ban was to go into effect so her daughter wouldn’t have to wear a mask.

“So I guess I get to home-school her when she could absolutely flourish from a decent education. It’s unfortunate that she can’t because you guys did this to them. So she has the right and the freedom to be able to breathe and being deprived of oxygen is just suffocating them slowly.” 

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