A coalition of organizations including the Arizona School Boards Association, the Children’s Action Alliance, the Arizona Education Association, and the Arizona Advocacy Network filed a legal complaint in Superior Court late Thursday asking for Injunctive Relief on the portions of the health and K-12 budget bills that prohibit school districts from implementing universal masking policies.
The action rightly points out that the legislature passed, and the governor signed three budget bills (HB 2898, SB 1824, and SB 1825) that “… include substantive policy provisions that have nothing to do with the budget” in direct violation of the state constitution.
Below is a guest blog from AzPHA member James G. Hodge, Jr., J.D., LL.M., the Peter Kiewit Foundation Professor of Law and Director, Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, Arizona State University that explains the suit.
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ARIZONA SCHOOL BOARD ASSOCIATION V. STATE OF ARIZONA
James G. Hodge, Jr., J.D., LL.M.
In a Complaint filed on August 12, 2021 in Arizona School Board Association v. State of Arizona with the Arizona Superior Court – Maricopa County, multiple litigants challenge legislative provisions prohibiting public health interventions to tamp down COVID-19 infections in Arizona’s K-12 schools and universities. In addition to the Association, litigants include advocacy organizations, state legislators, educators, doctors, and parents interested in “ensuring that the Legislature complies with its constitutional obligations and that Arizonans are safe in their educational and work environments.”
Contrary to a case brought earlier this month by a teacher challenging Phoenix Union High School District’s mask mandate, the parties allege the state legislature and Governor have unconstitutionally attempted to prohibit masks and vaccinations through multiple legislative provisions passed in violation of: (1) Arizona’s “single-subject rule” (Ariz. Const. Art. IV, pt. 2, § 13) and (2) students’ rights to equal protection (Ariz. Const. Art. II, § 13 ).
Single-subject rule
The single subject rule requires any state bill passed in Arizona to focus on a specific subject described in the title of the bill itself. Consequently, bills may not include topics tacked on in such a way as to muddle the legislative objectives or inhibit democratic processes. The litigants claim that several budget reconciliation bills (“BRBs”) (HB 2898, SB 1819, SB 1824, and SB 1825) passed during the summer 2021 violate this rule by imbedding “substantive policy provisions that have nothing to do with the budget.”
In a well-documented argument, they allege that state legislators knowingly added mask mandate prohibitions, COVID-19 vaccination and passport limitations, local government restrictions, and other provisions to BRBs with no plausible connection to the title or purpose of the bills. Several legislators allegedly sought to add questionable provisions that failed to pass in other bills. If true, the tacked on provisions may be struck from the larger BRBs signed by the Governor.
The public health and political stakes are high. With reports of rising COVID infections across the state, and outbreaks and closures within Arizona (and other states’) schools, multiple K-12 districts and Arizona universities are currently implementing mask mandates. Over 2 dozen state legislators have recently described the situation as “anarchy.” Litigants suggest the legislature has “[n]ever before . . . so ignored the normal process and procedure for enacting laws,” but prior BRBs passed in Arizona have survived similar arguments, perhaps on less obvious grounds.
Equal protection
Litigants also allege that HB 2898 prohibiting K-12 public and charter schools (but not private schools) from instituting mask mandates discriminates against public and charter school students in violation of equal protection principles. They ask the court to strictly scrutinize the legislature’s ban on grounds it interferes with students’ fundamental rights to education.
As the court awaits the State’s formal response to the Complaint and schedules hearings, it faces the question whether provisions in the BRBs are in fact unconstitutional. If so, the litigants seek an immediate temporary injunction ceasing enforcement of such provisions after their effective date in late September.