Arkansas Anti-Masker Law Is An Object Lesson For Arizona: Go On Offense, Sue The Legislature

In April, Arkansas`s Republican governor signed a bill preventing local officials from requiring masks to protect against the coronavirus.

Now, Governor Asa Hutchinson is admitting how profoundly stupid that was. Arkansas Governor Regrets Signing Ban On Mask Mandates As COVID Spike Continues:

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Arkansas Gov. Asa Hutchinson (R) on Tuesday expressed regret for signing a ban on mask mandates in schools, as his state is now enduring a troublesome spike in new coronavirus cases and hospitalizations.

“I signed it at the time because our cases were at a very low point,” Hutchinson said, referring to a law banning state or local mask mandates that he signed in April. “I knew it would be overwritten by the legislature if I didn’t sign it.”

“Everything has changed now. And yes, in hindsight, I wish that had not become law. But it is the law, and the only chance we have is either to amend it or for the courts to say that it has an unconstitutional foundation,” he added.

Last week, Hutchinson called on the state’s Republican-led legislature to return for a special session and overturn his decision to ban mask mandates in schools. The broader ban on state and local mask mandates would remain in place under the governor’s new proposal.

“Local school districts should make the call, and they should have more options to make sure that their school is a safe environment during a very challenging time for education,” he said Tuesday.

Legislators have expressed doubt that the ban can be lifted.

Both chambers in the Arkansas legislature would require a two-thirds vote to lift the ban on mask mandates in schools before classes begin later this month. With a simple majority, the ban wouldn’t be lifted for 90 days.

Gov. Asa Hutchinson’s suggestion, a plea really, that someone please sue the legislature to overturn the anti-masker law now has some takers.

Forbes reports, Arkansas Parents Sue State Over Ban On School Mask Mandates — Could Other States Be Next? (Hint: Arizona):

Two parents of school-aged children in Arkansas sued the state Monday in an effort to strike down its ban on mask mandates—the first major legal challenge against such a statewide order—as state prohibitions on mask mandates become a growing source of contention amid the Delta variant’s spread.

The lawsuit, filed in state court in Arkansas’ Pulaski County against the state legislature’s leadership and Gov. Asa Hutchinson, seeks to strike down Arkansas’ Act 1002 of 2021, which prohibits any “state agency or entity, a political subdivision of the state, or a state or local official” from requiring face coverings, including schools.

The parents allege the mask mandate ban violates the state constitution’s separation of powers clause and equal protection measures and violates the rights of children in public schools by preventing school districts and the state from “adopt[ing] all suitable means to secure the people the advantages and opportunities of education.”

With the new school year starting in two weeks, the parents argued in the lawsuit they are turning to the court to seek immediate “protection from an irrational act of legislative madness that threatens K-12 public school children with irreparable harm.”

The lawsuit seeks both a temporary injunction against the ban on mask mandates and for the law to be struck down permanently and declared unconstitutional.

The court docket in the Arkansas case notes a hearing has been scheduled for Friday, which could lead to a speedy ruling. Hutchinson has already called a special session of the state legislature for Wednesday to amend Act 1002 and allow school districts to impose mask mandates, which would address many of the concerns in the lawsuit. The Arkansas parents noted in their lawsuit it “remains uncertain” whether the state’s Reupublican-led legislature would actually pass such an amendment, however. Even if they do, it would take 90 days for the amendment to take effect unless two-thirds of the legislature vote to add an emergency clause, which the plaintiffs said “by all accounts seems unlikely.”

In addition, the Little Rock School District to sue state over statute that bans face mask mandates:

The Little Rock School Board on Wednesday authorized district leaders to sue the state to stop the enforcement of a law that prohibits school systems from mandating face masks to prevent the spread of covid-19.

“I think it is really important for us to do this because we need the same tools to protect our students and our staff that private schools and private businesses in our community already have,” school board member Ali Noland said in making the motion that was seconded by Evelyn Callaway.

Chris Heller, an attorney for the Little Rock School District, told the board that the district’s legal team will file the lawsuit — drafted last week — in Pulaski County Circuit Court on Thursday. Heller added that a decision from a judge could come as soon as Friday.

The district’s lawsuit will be the second this week challenging Act 1002 of 2021, the ban on public agencies requiring face mask mandates. Tom Mars, a Rogers attorney, filed a lawsuit against the act on behalf of two Pulaski County families. That lawsuit has been assigned to Pulaski County Circuit Judge Tim Fox, who has scheduled a hearing for a temporary restraining order for 9:45 a.m. Friday.

Heller said the Little Rock School District suit will also be assigned to Fox and that the district will be able to participate in the Friday hearing.

The parent plaintiffs were interviewed byMSNBC’s Lawrence O’Donell on The Last Word.

Here in Arizona, our “Wimpy Kid” Governor, “Do Nothing” Doug Ducey, who either supports the MAGA/QAnon anti-maskers in the Arizona legislature or too much a craven coward to stand up to their “irrational act of legislative madness that threatens K-12 public school children with irreparable harm,” has already threatened Catalina Foothills School District over its COVID quarantine protocol as AZ cases rise.

In a July 14 letter, Kaitlin Harrier, education policy advisor for Governor Ducey, told CFSD Superintendent Mary Kamerzell that the school’s isolation policy violated an Arizona statute, particularly the section on face coverings, signed by Governor Ducey on June 30.

A similar letter was sent to the Peoria Unified School District.

* * *

In a letter responding to Ducey’s office, John Richardson of the DeConcini, McDonald, Yetwin, and Lacy law firm said the statutes referenced in Harrier’s letter do not apply to the school districts’ COVID-19 isolation policies, nor do they restrict districts from following guidance from federal, state and local public health authorities.

“Parents and other community members have a right to expect that their local school district will do what it reasonably can to provide a safe educational environment for its students, and CFSD and PUSD are committed to providing such an environment,” wrote Richardson. “Students who are required to quarantine based on exposure to COVID-19 are not abandoned. Both school districts provide instruction and assistance to such students during their temporary absence from school.”

After the CDC recently recommended universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status, the “vast right-wing conspiracy” in Arizona recruited some dilhole teacher at Metro Tech High School in the Phoenix Union School District to sue the school district for defying Arizona’s anti-masker statute.

This dilhole is represented by Alexander Kolodin, who most recently was one of the attorneys who brought a frivolous election lawsuit on behalf of Donald Trump which was dismissed by the Court. A bar complaint was filed against him, Ethics complaints filed against attorneys in GOP election lawsuits in Arizona. The last reporting I saw said the bar complaint was still pending against him. Complaints against 9 attorneys involved in election lawsuits dismissed by Arizona Bar; 12 still pending.

The Arizona Capitol Times reports, Judge refuses – for now – to grant TRO against Phoenix Union’s mask policy:

A new mandate by Phoenix Union High School District that students and staff wear masks remains in effect, at least for the time being, as do similar policies being adopted by other districts.

That’s because Maricopa County Superior Court Judge Randall Warner declined Wednesday to issue a temporary restraining order after an attorney for the district told him that there’s no law being violated – at least not yet, if ever.

Warner did not rule on the claim by a teacher at Phoenix Union that the law banning schools from imposing mask mandates is in effect. But he did not grant a request by Alexander Kolodin, the teacher’s attorney, for an immediate restraining order to bar the district from enforcing its new policy.

Warner wants to hear more evidence at a hearing set for Aug. 13.

At that time he could decide whether a retroactivity clause in the statute applies.

And even if he agrees that no one is violating the law as of right now, he still could bar future enforcement.

Mary O’Grady, who represents the district, does not dispute that a provision in the state budget makes it illegal for school governing boards to require the use of face coverings by students or staff during school hours and on school property. That same measure also prohibits city, town or county officials from enacting similar mandates for what happens on school property.

A separate provision says school district and charter schools cannot require a student or teacher to receive a vaccine for COVID-19 or wear a face covering to participate in in-person instruction.
But O’Grady told Warner that, at least for the moment, all that is irrelevant.

She noted that measures adopted by the Arizona Legislature, with only a few exceptions, do not take effect until 90 days after the end of the session. This year, that day falls on Sept. 29.

What that means, O’Grady said, is that there is no evidence that Phoenix Union did anything illegal this past Monday, when it adopted its policy of requiring masks indoors. More to the point, O’Grady said that leaves no basis for Warner to hear the lawsuit filed by Douglas Hester, a teacher in the district, asking that the policy be struck down as illegal.

“The law is not the law right now,’’ she said.

While the statute is technically effective until Sept. 29, it also contains a provision making the ban on face coverings retroactive to July 1. And it will be up to Warner to decide whether that makes what Phoenix Union has done illegal.

Only emergency measures (which take effect immediately) can be made retroactive. This bill was passed as an ordinary bill which takes effect after 90 days.

The issue no longer is just about that one district. Governing boards of several others have followed suit, including a vote just Wednesday morning by Tucson Unified School District, effective immediately, to require masks.

In fact, there is a growing revolt by Arizona school districts against the “irrational act of legislative madness that threatens K-12 public school children with irreparable harm.”

The American Academy of Pediatrics released the figures on Tuesday, noting they were a nearly 85% increase from a week earlier. Children — defined by individual states as those aged 17 or 18 and under ― now account for 19% of the nation’s weekly COVID-19 cases. More Kids Are Getting Sick With COVID-19, Top Pediatrics Group Finds.

Laurie Roberts at The Republic writes,6 Arizona school districts now in revolt over masks. Are you seeing this, Gov. Ducey?

We are now up to six Arizona school districts that have embarked upon a showdown with the state, believing that public health should trump state law.

Especially a state law enacted in the waning hours of this year’s legislative session without so much as a single public hearing.

One that was approved before the highly contagious delta variant of COVID-19 began spreading across the state. Before public health experts revised their guidelines to urge that everyone mask up in schools to try to slow the spread of the virus.

The Washington Elementary School District, during a special governing board meeting on Wednesday afternoon, became the latest school district to mandate masks. It follows Phoenix Union High School District, Phoenix Elementary, Osborn Elementary, Roosevelt Elementary, and Tucson Unified School District.

Tucson’s governing board met in an emergency session on Wednesday morning to approve the mandate as the school year was getting under way. The vote was unanimous.

“While Gov. (Doug) Ducey and the state Legislature has decided to ignore the advice of our public health experts and endanger our community, we can’t sit idle and watch COVID inevitably spread throughout our schools and devastate so many TUSD families,” board member Ravi Grivois-Shah said.

[S]tate leaders, meanwhile, ought to sort out where we go from here, with school districts in open revolt.

They can stick their feet in concrete and their heads in the sand and pretend they haven’t made a decision that prioritizes politics over public health. They can threaten the schools with the loss of state funding and bring them to heel and to heck with the consequences.

Or they can reconsider whether that hastily passed law that seemed (to them, anyway) like a good idea in June is really what is good for Arizona’s children in August, as this cursed virus is upon us once again.

Roberts continues:

A good governor would rethink the mask ban

Ducey has said he is not anti-mask. He’s just against mask mandates, believing that it should a parent’s choice.

But it shouldn’t be a parent’s choice, not when it affects the health of the entire school and the ability of that school to remain open.

It also shouldn’t be the governor’s choice or the Legislature’s choice.

It should be the choice of those closest to the situation, the ones who were elected by parents and by the community to oversee their schools: the governing boards.

A good governor – faced with school boards in open revolt – would reconsider whether a blanket ban on mask mandates really is what’s best for the state and most importantly, for the state’s children.

In thinking about it, a good place to start might be with the one thing upon which we can agree.

We all want the kids back in class.

The question is: What are we willing to do to make sure they can stay there?

Governor “Do Nothing” Doug Ducey should grow a pair and call a special session to repeal or revise the pending anti-masker law passed before the growing threat of the Delta variant, as Governor Asa Hutchinson of Arkansas has done this week.

And the lawyers representing Arizona’s school districts should band together and file a lawsuit challenging the “irrational act of legislative madness that threatens K-12 public school children with irreparable harm.”





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1 thought on “Arkansas Anti-Masker Law Is An Object Lesson For Arizona: Go On Offense, Sue The Legislature”

  1. Update: The Associated Press reports, “Arkansas judge blocks state from enforcing mask mandate ban”, https://apnews.com/article/health-arkansas-coronavirus-pandemic-d79a14a84f0c7ba3bd6d8b3cf4039404

    An Arkansas judge on Friday temporarily blocked the state from enforcing its ban on mask mandates after lawmakers left the prohibition in place despite a rising number of COVID-19 cases and hospitalizations.

    Pulaski County Circuit Judge Tim Fox issued a preliminary injunction against the law that Gov. Asa Hutchinson signed in April banning mask requirements by governmental entities. The ban was being challenged by two lawsuits, including one from an east Arkansas school district where more than 900 staff and students are quarantining because of a coronavirus outbreak.

    Fox ruled the law violates Arkansas’ constitution, saying it discriminates between public and private school students. He said it also infringes on the governor’s emergency powers, as well as the authority of county officials and the state Supreme Court.

    The law “cannot be enforced in any shape, fashion or form” pending further court action, Fox said.

    Fox issued the ruling hours after lawmakers adjourned a special session that Hutchinson had called to consider rolling back the ban for some schools. Hutchinson had said the change was needed to protect children under 12 who can’t get vaccinated as the state’s virus cases and hospitalizations skyrocket.

    The governor criticized lawmakers who opposed taking action, saying many of them had taken a “casual, if not cavalier, attitude” toward the state’s COVID-19 crisis.

    “What concerns me is many are simply listening to the loudest voices and not standing up with compassion, common sense and serious action,” he told reporters.

    Hutchinson, who was named as a defendant in the lawsuit along with the state and legislative leaders, left open the possibility of separately asking the state Supreme Court to uphold Fox’s ruling if it’s appealed.

    What I said: Arizona school districts should go on offense and sue Governor Ducey and the Arizona legislature.

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