There’ll no doubt be some legal action this week challenging the laws the governor signed that micromanage COVID mitigation by schools, counties and cities. There are several court challenges that could happen. Here are a few examples:
K-12 Schools
The state legislature prohibited school districts from requiring students to wear masks inside classrooms in the K-12 budget bill. Governor Ducey enthusiastically signed the bill preventing districts from requiring masks (despite CDC guidance, American Academy of Pediatrics recommendations and tons of evidence for this important protective measure).
I expect one or more school districts to file an action in Superior Court challenging the K-12 Budget Reconciliation Bill because it violates the State Constitution’s requirement that all bills have a single subject (see this blog post and this report from the Network for Public Health Law).
Another argument may include the fact that Ducey’s restriction makes it impossible for schools to have fidelity to in loco parentis (“in the place of a parent”) which refers to the legal responsibility of schools to take on some of the functions and responsibilities of a parent on campus.
The Phoenix Union High School District is already ignoring the governor, announcing in their letter to parents entitled: PXU Announces Mask Requirement and the Safe Return to In-Person Learning that they’ll be requiring universal masking of all staff students and visitors regardless of vaccination status.
Expect more districts to defy the directive and require masks in classrooms despite ARS 15-342.05. This will probably trigger an action by A.G. Brnovich and/or Ducey to try to compel the district to stand down, sending the case to Superior Court- but this time with the school district as the defendant rather than the plaintiff.
Note: ARS 15-342.05 doesn’t take effect until September 29 (90 days after the end of the legislative session), however bill included a retroactivity clause back to June 30, 2021. A legal question is whether the restriction on districts takes effect on September 29 or whether it is already in effect because of retroactivity.
Cities & Counties
In light of the new guidance from the CDC regarding mask wearing in areas of high transmission (see next piece) we could see cities and/or counties to require visitors to city and county buildings to wear masks regardless of their vaccination status. Such a policy would be in violation of SB 1819 which prohibits:
“… a county, city or town from making or issuing any order, rule, ordinance or regulation… including an order, rule, ordinance or regulation that mandates the use of face coverings…”.
For example, cities could require city library visitors to wear masks regardless of vaccination status. Such a policy would likely trigger an action by Brnovich or Ducey to try to compel the city to comply with the new law- sending the case to court. Cities/counties could then make an argument that SB 1819 also violates the single subject requirement in the state constitution.
