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Judge rules state's ban on mask mandates in schools is unconstitutional

Portrait of girl going to school with protective face mask on.
Posted at 2:07 PM, Sep 27, 2021
and last updated 2021-09-28 01:18:27-04

PHOENIX — A Maricopa County Superior Court judge struck down -- at least temporarily -- the state's ban on mask requirements for public and charter schools Monday, claiming that it violates the state's constitution.

A coalition of educators, parents, and children’s advocacy groups have argued that the provisions were unconstitutionally tucked into several unrelated budget bills, which the Legislature passed over the summer.

The law was set to take effect on September 29.

According to the ruling, the Arizona School Boards Association argued that the Legislature violated the constitution's title requirement and single subject rule. Read the judge's ruling.

"Sections 12, 21, and 50 of HB2898; Sections 12 and 13 of SB1824; Section 2 of SB1825; and SB1819 violate the title and/or subject matter requirements of the Arizona Constitution...and are therefore void and unenforceable," the judge wrote in her ruling.

"The title requirement ensures that the public has notice of proposed legislation and a fair opportunity to participate in the process. The single subject rule precludes legislators from combining unrelated provisions into one bill to garner votes for disfavored measures. Together these requirements promote transparency and the public’s access to information about legislative action," the court wrote.

The Association argued that the Legislature included policy regarding 30 subjects into one bill.

Prior to the most recent ruling, several districts in the state enacted their own mask mandates in defiance of the law.

Arizona Gov. Doug Ducey has repeatedly maintained that he is not anti-mask or anti-vaccine, but that he is anti-mask mandates. He has encouraged people to get the COVID-19 vaccine.

He also has maintained that the state's ban on mask mandates would be upheld in court.

The governor's office issued a statement saying, "We are still reviewing the ruling, but this decision is clearly an example of judicial overreach. 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. 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."

Arizona’s Superintendent of Public Instruction Kathy Hoffman tweeted her response to the ruling, saying in part, “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."

The Arizona School Boards Association is happy with the ruling. "Governing boards, who are elected officials themselves and have the authority, need to have the authority to make those decisions. This has always been about local control for us," says Chris Kotterman, Arizona School Boards Association.

The battle on masking is far from over. It is likely that the ruling will be appealed. "Certainly, we have school board members who share the sentiment of the governor and the legislature, and if they have a majority of their board that feels that way, then they don't have to do anything," says Kotterman.

The Phoenix Union High School District also weighed in saying, "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 state has until Nov. 1, 2021, to file an objection or response to the ruling. The plaintiffs then have until Nov. 15, 2021, to file their response.