PHOENIX — A judge will hear arguments Sept. 13 over whether it was legal for state lawmakers and Gov. Doug Ducey to bar schools from requiring students and employees to wear masks.
The date set by Maricopa County Superior Court Judge Katherine Cooper is designed to allow time for whichever side loses to quickly seek Supreme Court review. That is important as, absent a court order, the new law takes effect on Sept. 29.
Much more than the question of masks in public schools is at issue.
The lawsuit was filed by a coalition of school board members, educators, child welfare advocates and others, represented by attorney Roopali Desai. It contends that the same legal flaws in the prohibition against masks also invalidate a host of other legislative actions. These range from prohibiting schools from requiring vaccination against COVID-19, to banning the teaching of what has been labeled “critical race theory.’’
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That is why Senate President Karen Fann, R-Prescott, and House Speaker Rusty Bowers, R-Mesa, have hired attorney Kory Langhofer to add their voices. Attorney Patrick Irvine is defending the state and the legality of the provisions.
The stakes are high for the GOP leadership.
A ruling that the laws were improperly enacted would forever change the process now used to take otherwise disparate policy changes — some of which failed to get the necessary votes as separate legislation — and bundle them in to a take-it-or-leave-it package in the Legislature.
At the heart of the dispute is how the state budget is adopted.
There are two main bills, one the “feed bill’’ appropriating money to run various state agencies and the other a “capital outlay’’ bill for construction projects.
But there also are a series of “budget reconciliation bills,’’ designed to enact changes in state law and policy to conform with the spending plans.
The problem, according to Desai, is that the ÃÛèÖÖ±²¥ Constitution says each piece of legislation “shall embrace but one subject and matters properly connected therewith.’’ The same provision requires each element of what is in each bill to be laid out in the title.
Desai wants the judge to void provisions in each of those bills that do not relate to the subject of the bill.
For example, the provision prohibiting schools from requiring masks is within a 231-page House Bill 2898, “appropriating monies, relating to kindergarten through grade 12 budget reconciliation.’’ Masks have nothing to do with any of that, she said.
Ditto, she said, of another provision prohibiting teaching curriculum “that presents any form of blame or judgment on the basis of race, ethnicity or sex.’’ That includes concepts like saying a student “should feel discomfort, guilt, anguish, or any other form of psychological distress because of the individual’s race, ethnicity or sex.’’ The legislation authorizes the state Board of Education to suspend or revoke an offending teacher’s certificate.
“The Legislature went out of its way to mislead people about what’s in the bills,’’ Desai is arguing to Cooper.
Her lawsuit cites problems in other bills, too. There is SB 1824, labeled as “appropriating monies; relating to health budget reconciliation.’’
But it also says students cannot be required to be immunized to attend school using any vaccine only given “emergency use authorization’’ by the Food and Drug Administration. And it bars local governments from establishing a “vaccine passport’’ or requiring proof of vaccination to enter a business.
SB 1819, which is supposed to deal with “budget procedures,’’ also includes new requirements for “fraud countermeasures’’ for paper ballots.
It also strips power from Secretary of State Katie Hobbs to defend election law challenges and sets up a special committee to review the findings of the audit of the 2020 election. It also includes changes to the governor’s emergency powers, investigations of the practices of social medial platforms, and even language about condominiums.
“None of these subjects have any logical connection to each other,’’ Desai said.
The reason these bills are full of issues, she said, is to bring in the votes of lawmakers who may be opposed to one or more provisions on their own, but like some other features.
In fact, she noted, the measure about teaching certain concepts about race, ethnicity and gender failed to get the necessary votes when offered as a separate bill. But it was then tucked into a K-12 education reconciliation bill to get the votes of those who previously opposed it.