Judge weighs challenge to Arizona ban on school mask mandate

PHOENIX — A judge was considering whether to overturn several new Arizona laws that restrict the power of cities, counties and school districts to impose COVID-19 restrictions like mask mandates after hearing arguments in the case Monday.

A coalition of educators, parents and children’s advocacy groups argue in a lawsuit that the provisions were unconstitutionally tucked into several unrelated budget measures and that the highly contagious delta variant of COVID-19 makes the need for masks more pressing.

The laws prohibit public school districts and local governments from imposing mask mandates, bar universities from requiring vaccinations for students and prevent requirements that people to show they are inoculated to get into businesses. Similar legislation has passed in several other Republican-led states.

At least 29 Arizona public school districts have enacted their own mask requirements despite the laws. The districts account for more more than a third of the approximately 930,000 students attending more than 2,000 public schools.

The coalition’s attorney, Roopali Desai, said the laws run afoul of the state Constitution, which requires that the titles of legislation properly identify their contents. They were only given the bare-bones description needed for the state budget. The mask ban is particularly concerning, Desai said.

“Unless the laws challenged in this case are declared unconstitutional and enjoined, a great many children in Arizona will get COVID-19,” Desai told Maricopa County Superior Court Judge Katherine Cooper. “They will get sick. They will suffer from long COVID. They will be hospitalized, and they may die. This is not hyperbole.”

Desai said three measures that direct how to spent money in the main budget legislation were not described properly and should be struck down. She also argued that a fourth bill should be blocked as unconstitutional because it had virtually nothing to do with directing spending and contained unrelated policy items.

They include stripping the Democratic secretary of state of the duty to defend state election laws, allowing anyone to refuse to get vaccinated even during a major health emergency, letting the state Game and Fish Department register voters and setting up a special legislative committee to review the results of the state Senate’s partisan audit of the 2020 election.

“This hodgepodge legislation is so bad that the state has not even attempted to address in its response the miscellany of topics in the bill,” Desai said of SB1819.

The coalition also is trying to block a law prohibiting the use of state money for teaching critical race theory, a way of thinking about America’s history that centers on the idea racism is systemic in the nation’s institutions and that they function to maintain the dominance of white people in society.

The Legislature routinely has tucked unrelated items into budget legislation, but this year crammed many more than usual.

Patrick Irvine, an attorney for state Attorney General Mark Brnovich, said the Constitution does not require lawmakers to specify each item they include in so-called budget reconciliation bills that direct spending.

“What we’re saying is the definition of budget reconciliation bill cannot be narrowed down as they are seeking to do,” Irvine told the judge. “To the extent a budget reconciliation bill is necessary to implement the budget, that is something that the Legislature gets to decide.”

Irvine said in court papers that a ruling agreeing that the Legislature violated the Constitution could upend years of budget measures that added unrelated policy items. Irvine said if the court is concerned about the Legislature’s practice, it should ban it going forward, not block current laws.

Potentially upsetting the practice without warning “would be highly inequitable to the democratic process in Arizona over the last several decades,” Irvine wrote.

The judge said she will issue a ruling before the laws are set to take effect Sept. 29.

Meanwhile, the state on Monday reported 2,278 new COVID-19 infections but no new deaths, bringing the total since the pandemic began to over 1.05 million cases and 19,187 deaths.

In other developments Monday, University of Arizona President Robert Robbins announced the college will begin offering take-home COVID-19 test kits later this week. The tests will be available at nine campus locations.

Students and staff give a sample by gargling. They use their cellphone to scan the test so it’s in the tracking system and then turn the sample in. Robbins believes a lot more people will get tested with the option, giving a more accurate picture of the positivity rate in the community.

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