A coalition led by major education organizations and other nonprofits is suing the state over its mask law, saying the measure passed by the Legislature and signed by Gov. Doug Ducey is unconstitutional.
The lawsuit challenges the state’s prohibition of mask mandates and other measures that were approved as part of budget bills as the legislative session was drawing to a close. It asks that the court halt implementation and enforcement of the laws until the case is heard in court.
“If Arizona public and charter schools cannot impose reasonable COVID-19 mitigation measures, students and teachers will get sick, and some may die,” the lawsuit said.
The lawsuit was filed in Maricopa County Superior Court on Thursday on behalf of the Arizona School Boards Association, which represents the governing boards of nearly all the school districts in the state; the Arizona Education Association, which represents teachers and other school workers; nonprofits Children’s Action Alliance and Arizona Advocacy Network; and 11 individuals. They include two members of the Phoenix Union High School District governing board, teachers, university instructors and parents.
Dr. Sheila Harrison-Williams, ASBA executive director, issued a statement about the lawsuit.
“ASBA is pleased to be part of a coalition of education and children advocacy organizations, as well as many impacted individuals, in challenging the anti-mask mandate law,” she said.
“ASBA stands for local control; we do not want to mandate masks for all Arizona school districts; we simply want those districts and their locally elected school board to be able to decide what’s best for their students and staff.”
The lawsuit focuses on policy legislation that was included in end-of-session budget reconciliation bills, a combination that violates the Arizona Constitution, the lawsuit alleges.
“Never before has the legislature so ignored the normal process and procedure for enacting laws as they did this session,” the lawsuit said. “It is up to the courts to enforce the dictates of the Arizona Constitution.”
Another issue: The laws in question apply to public district and charter schools but not private schools, the lawsuit said.
“Arizona students have a right to physical safety in their school environment. And parents must be able to expect that Arizona schools will keep students safe and will take appropriate measures to protect children while they attend school,” the lawsuit said.
“HB 2898 takes this right away from children in public and charter schools – but not private schools – in violation of the Equal Protection clause of the Arizona Constitution.”
Grass-roots momentum grows
The lawsuit comes after several school districts, citing the spread of the delta variant of the coronavirus and updated Centers for Disease Control and Prevention guidance, imposed a mask requirement for this school year.
The Phoenix Union High School District was the first. Nine other Arizona districts, include seven in Phoenix and Glendale, followed suit. Several of the districts have included opt-out provisions.
This week, Maricopa County Community Colleges, Arizona State University, University of Arizona and Northern Arizona University also announced mask requirements.
The recently updated CDC guidelines recommend students, staff and visitors to K-12 schools wear masks indoors, regardless of vaccination status.
Masking up: These metro Phoenix school districts require masks, despite Arizona ban on mask mandates
2 plaintiffs tied to Madison Elementary district
Two of the plaintiffs in the lawsuit addressed the Madison Elementary School District governing board at its public meeting Tuesday night, where they and dozens of other parents asked district leaders to maintain or strengthen the current mask mandate.
The Madison district, in north-central Phoenix, reimplemented its mask mandate last week. However, the district also gave parents broad ability to opt out of the mask mandate.
One plaintiff, Dr. Ruth Franks Snedecor, is a hospital physician who has advised the Madison district on COVID-19 precautions. The lawsuit describes her as a parent of three children in school.
Franks also addressed the Madison school board on Tuesday night, presenting a range of data about the dangers of the delta variant of the virus. She noted that even vaccinated people can contract and spread the delta variant to others, including unvaccinated schoolchildren.
“I recognize that my comments will alienate many people, and to be quite frank, at the start of the fourth wave, I am beyond caring,” Franks said.
“I’m tired of sacrificing the health and safety and education of my children for people that truly do not understand the complexity of this virus and have politicized public health,” Franks said.
“I understand that my utopian desire of having everyone care about their community is a pipe dream. I want everyone at school to wear a piece of cloth over your nose and mouth for a little while. I want you to teach and expect your kids to do it too, so that I can continue to treat suffering and death and stop spending countless hours away from my family caring for yours.”
“Take it from this hospital physician,” Franks said, noting she had worked in person with COVID-19 patients for 18 months, “masking works. I had managed to keep my family safe, only to have it likely undone on the first day of school, as my child was seated next to an unmasked child today.”
The lawsuit describes Raquel Mamani, another plaintiff, as a substitute teacher in the Madison district.
“We can all imagine what happens when a teacher has to be out and there’s no substitute,” Mamani told the board on Tuesday. “I want to continue to show up. … But I also deserve to feel as safe as possible in the classroom — as well as my children deserve to be in the safest classrooms possible.”
“Please continue to require masks and make it difficult to opt out,” she told the board. “The staff and students of the schools that you care for deserve to be protected to the highest level — with masks.”
Budget bills should stick to funding, lawsuit says
The lawsuit highlights four budget reconciliation bills.
The state Constitution requires that legislation must have one subject, and that the subject of the legislation must be properly addressed in the title of the act, the lawsuit said. With some budget reconciliation bills, the titles were misleading and the bills themselves included substantive policy legislation, the lawsuit said.
House Bill 2898, focusing on the state’s K-12 school budget, “includes substantive policies that have nothing to do with the budget,” the lawsuit said. They include provisions prohibiting K-12 schools from enacting mask or vaccine requirements for students or school staff.
Senate Bill 1825, focusing on the state’s higher education budget, also includes policies that have nothing to do with the budget, the lawsuit said. They include provisions prohibiting state universities and community colleges from enacting mask or vaccine requirements for students or school staff and prohibiting mandatory testing except if “a significant COVID-19 outbreak occurs in a shared student housing setting that poses a risk to the students or staff,” and the university first gets approval from the state Department of Health Services.
Senate Bill 1824, focusing on the state’s health budget, includes provisions that ban COVID-19 immunization requirements for schools and vaccine passports — also policies that have nothing to do with the budget, the lawsuit said.
And Senate Bill 1819, focusing on budget procedures, includes provisions about voter databases and election law. It also prohibits a “county, city or town” from adopting “any order, rule, ordinance or regulation related to mitigating the COVID-19 pandemic that impacts private businesses, schools, churches or other private entities, including an order, rule, ordinance or regulation that mandates using face coverings, requires closing a business or imposes a curfew.”
Lawmakers react to mask requirements
They asked the governor on Wednesday to withhold federal funding from school districts with mask mandates, authorize temporary school vouchers for all students in those districts and initiate legal action against the districts.
The 26 lawmakers who signed on represent just over half of the legislative Republicans. The House and Senate leaders did not sign on.
Ducey’s office said Wednesday that it had not reviewed the request but was looking at the issue.
“The governor is anti-mandate, but pro-vaccine and pro-parental decision on masks and other measures,” the Governor’s Office said in a statement. “Parents should decide what’s best for their kids, and those are the kind of policies he will be supporting.”
The Republic’s Mary Jo Pitzl, Yana Kunichoff and Lita Nadebah Beck contributed to this article.
