school districts and mask requirements

Arizona lawmaker wants to penalize school boards that ignore laws

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PHOENIX — A Phoenix GOP lawmaker is looking for a new — and quicker — way to penalize school boards that ignore state laws.

Rep. Steve Kaiser wants to allow lawmakers to file complaints when they believe a school district or charter school is doing something illegal.

House Bill 2009 would then require the attorney general to investigate. And if the lawyers there agreed the statute was being broken, it could order that some state aid be withheld if the district didn't repeal the policy or practice.

If all that sounds familiar, it should.

What Kaiser wants is based on an existing 2016 statute that empowers the attorney general to investigate actions by cities and counties, complete with the same ability to cut off state dollars. And it is a power that has been used since its enactment to force several Arizona cities to alter or repeal some ordinances, ranging from a Sedona tax on vacation rentals to a Pima County moratorium on evictions.

Kaiser said what made him decide to seek expansion of that law was the vote in late June by legislators to prohibit any requirement that students and staff wear masks while on campus.

“I was shocked to see how many school districts and how many schools decided they were just going to snub their nose at state law,” he said.

Only thing is, that law was not set to take effect until Sept. 29. But Kaiser said schools should have obeyed it anyway once it was approved.

“That’s not a great way to run an organization when you have kids, parents involved where you're going to change midstream,” he said. “So, on Sept. 30, were they going to change the policy?”

As it turned out, a judge declared on Sept. 28 that the law was illegally enacted, prohibiting its enforcement. Kaiser said, though, that doesn't change the fact some districts intended to keep the mask-up policy in place with or without that court ruling.

What makes all that relevant, he said, is that the prohibition lawmakers enacted was civil statute, not a criminal one, meaning someone would have to sue to challenge a board action.

“Unless a parent wants to hire a lawyer out of their own pocket, how does that get enforced?” Kaiser said. His HB 2009, he said, provides “another option.”

Put simply, it forces the attorney general, on the complaint of any legislator, to investigate — and quickly. That inquiry has to be completed within 30 days.

There are three possible outcomes.

One is a conclusion that the policy or action definitely violates state law. At that point, the attorney general directs the treasurer to withhold 10% of what are called “classroom site fund” monies.

Chris Kotterman, lobbyist for the Arizona School Boards Association, said that would translate out to the loss of about $73 per student.

A second option is for the attorney general to decide the action may violate the law. At that point, the case goes immediately to the Supreme Court for review, with the same penalty if the justices find the district exceeded its legal authority.

And the third is a finding of no violation.

Kaiser acknowledged the majority of those classroom site funds that districts would lose are earmarked for teacher pay.

“I don’t want to have to enact this,” he said.

“I certainly don’t want to hurt teachers’ pay ... because this isn’t about a teacher doing something wrong,” Kaiser continued. “This is about a district or a charter enterprise deciding through policy or deciding through voting of the board, or a prescription from their superintendent or their CEO, that we're going to do this policy that's in direct opposition to state law.”

In fact, HB 2009 has language that specifically prohibits a school district or charter school from reducing the pay of anyone during the same school year that a penalty is imposed.

So if salaries can’t be cut, how do schools handle the financial penalty?

“A lot of districts have balances,” he said.

And those that do not?

“This is a tough subject,” Kaiser said. “I have three kids in public schools, I love public schools.”

But he said they still need to follow state law.

“If you’re not going to follow state law there should be some kind of a repercussion other than me hiring a lawyer because I don't have a lot of funds to hire a lawyer to fight something that's civilly unjust,” Kaiser said.

In fact, he said, for most parents it would just be easier to simply switch schools than sue — essentially leaving the legally questionable policy unchallenged.

Kaiser said, though, he believes the legislation, by itself, will provide a sufficient deterrent to school officials thinking of violating state law, meaning the penalty would never be imposed.

But Chris Kotterman, lobbyist for the Arizona School Boards Association, said that threat is precisely why HB 2009 is a bad idea.

He pointed out that, even in cases where the attorney general concludes there is a violation, school districts can seek Supreme Court review. And it is possible to fight such conclusions.

But that presumes they have the time and money to do that.

“The only entities who can fight these investigations, if they believe they are correct, are entities who can afford to wait while the Supreme Court makes a determination,” Kotterman said. “It’s great if you're a legislator, but it flies in the face of local government.”

The net result, he said, will be to use up a lot of resources.

“It’s main purpose is to intimidate districts into doing what certain legislators want them to do, rather than what the law allows or requires them to do.”

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