Arizona Judge Rules School Mask Mandate Ban Is Unconstitutional

By Sydney Plaskett.

On September 27, Arizona Superior Court Judge Katherine Cooper ruled that the recent Republican-backed budget plan, which included a ban on school mask mandates, is unconstitutional. The budget plan included not only COVID-19 related mandate bans, but also anti-fraud election proposals and a ban on requiring schools to teach critical race theory. Judge Cooper’s ruling declared all of these measures unconstitutional, but not for the reason you may think.

Uncharted Territory

The pandemic has created a wave of constitutional debates that the legal community has had to address with little guidance. Most of these debates have centered around federalism: who has the power to impose COVID-19 policies? Is it the federal government, state governments, or local municipalities? In the case of mask mandates, this question has produced more than one uniform answer.

Generally, the federal government has very limited ability to mandate masks, if any ability at all. But what about state mask mandates? So far, state-issued mandates have been most often challenged using First Amendment arguments. Some states have faced religious freedom arguments, others have faced “forced speech” or “political expression” arguments. Despite these challenges, local elected officials have broadly succeeded in strongly incentivizing (or disincentivizing, in the case of Arizona) mask-wearing for certain businesses, schools, and events.

What Has Arizona Done?

In 2020 and 2021, Arizona granted significant freedom to local governments to impose COVID-19 policies. That changed this past summer, when Governor Doug Ducey proposed a budget plan that would effectively ban school mask mandates by cutting funding to districts who kept them in place after September 28.

The effort to return to in-person learning led many Arizona school districts to impose mask mandates at the start of the school year, especially after the spread of the Delta variant threatened another lockdown. After Ducey’s proposed ban, some schools expressed frustration that lawmakers had tied the hands of school board members, forcing them to choose between necessary funding and the safety of their students. Other schools expressed relief that the parents of their students could be free to decide how their children attend school. As a whole though, Ducey’s ban seemed to go against the will of Arizonans.

What Do Arizonans Want?

A poll conducted at the end of August 2021 asked Arizonans how they felt about Governor Ducey’s plan to grant $163 million in funding to schools who do NOT enforce a mask mandate. Of those who responded, 54.7% said that they strongly oppose this part of the budget. Taking matters into their own hands, the Arizona Education Association (AEA) along with an array of other education organizations filed a lawsuit against the state, arguing that the budget plan was unconstitutional. The arguments presented by the AEA were the same that Judge Katherine Cooper used when she struck down the laws just over a week ago.

An Unexpected Constitutional Argument

In her ruling, Judge Cooper notably did not attack the substance of the budget plan. Rather than finding the budget unconstitutional for federalism or First Amendment reasons, Judge Cooper exclusively attacked the format of the plan. The structure, she said, is what made the proposal unconstitutional—not its various bans.

Following the arguments made by the AEA, Judge Cooper held that the budget violated the Arizona Constitution’s requirements that all legislation address only one subject per bill, and that the titles of bills must accurately reflect their contents. Because the bill included an anti-mask mandate provision, a ban on required critical race theory curricula, and an array of other unrelated policies, Judge Cooper struck it down for its structure, not its contents. She argued the bill is an example of “classic logrolling—a medley of special interests cobbled together to force a vote for all or none.” Republican lawmakers, Governor Ducey, and Republican Attorney General Mark Brnovich have all commented on their disapproval of the ruling as an example of “judicial overreach.” They filed an appeal only days after the ruling.

What Now?

If Republican lawmakers are successful in their appeal, the budget proposal will stand, acting as proof that the legislature has broad discretion in defining what satisfies the “single subject” bill requirement. Since the bill quite clearly lumps together an array of different issues into one plan, if it stands, future legislation could follow its course and implement policies completely unrelated to the proposed budget. 

On the other hand, if the ruling stands, the legislature could attempt to re-write these policies into a budget plan that adheres to the single-subject requirement. In doing so, the budget’s title would have to clearly state the purpose of banning mask-mandates and how this purpose relates to the state’s authority to allocate funding.

For now, most Arizona school districts have expressed relief over the ruling. Many school boards have vowed to keep their mask mandates in place, noticing a downward trend in infection rates since imposing them. While the constitutionality of COVID-19 related laws continues to be debated in the courts, Arizonans should continue voicing their concerns, wants, and needs as we transition back to “normalcy.”

"A Virtual Start to the School Year" by Phil Roeder is licensed under CC BY 2.0

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By Sydney Plaskett

J.D. Candidate 2023

Sydney is a 2L Staff Writer from Monument, Colorado. After earning an English degree from the University of Denver, she moved to Phoenix to pursue her J.D. at the Sandra Day O’Connor College of Law. She enjoys reading, exercising, and spending weekends out with her friends.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.