The Attorney General’s Office issued a legal opinion sought by Arizona State Rep. Kelly Townsend regarding COVID-19 vaccine mandates for employees, patrons of businesses, and airline passengers under existing state and federal laws. The 40-page Opinion finds that due to the fact that government and private businesses have varying legal requirements, there is no one-size-fits-all answer.
Attorney General Mark Brnovich emphasized what he says is the “importance of relying on the constitution during a crisis when personal liberties are most at risk. While public health measures may be pursued during emergencies, they cannot trample constitutionally guaranteed liberties. Arizonans should be free, without coercion, to make medical decisions regarding vaccination that they feel are best for themselves and their families. Recent actions by government and private employers mandating Emergency Use Authorization (EUA) vaccinations demonstrate that a proper balance may have yet to be achieved by policymakers.”
“We must hold the Constitution close in times of crisis because that’s when our rights are most at risk,” said Attorney General Mark Brnovich. “In all medical and health decisions, Americans have the right to try and the right not to try; we cannot have one without the other.”
The Opinion provides a summary of current protections for employees and others from vaccination mandates. An Attorney General Opinion must explain the law as it currently exists, and not how the Attorney General or others might desire it to be.
Only a member of the legislature, a public officer of the State, or a county attorney can submit an opinion request to the AGO on legal questions pertaining to their office. The AGO cannot issue opinions for private citizens, nor offer legal advice to private citizens.
The Opinion answered the following three questions:
Whether an employer can require a COVID-19 vaccine as a condition of employment?
Whether a business can compel an individual to prove that they have received a vaccination before that person can patronize the business?
Whether, under a contract of carriage, a domestic airline can require proof of vaccination as a prerequisite for flying?
As explained below, Attorney General Brnovich determined that, under Arizona law, the government cannot mandate COVID-19 vaccines for public employees. This includes schools, public universities, community colleges, and state and local government. Private businesses can require COVID-19 vaccines for employees but must allow for reasonable accommodations. Per federal law, private entities that carry out an EUA activity like administering COVID-19 vaccines must inform those to whom they are administering the vaccines (which may include employees) that they have an option to decline.
1. Whether an employer can require a COVID-19 vaccine as a condition of employment?
Government
Schools, public universities, community colleges, and state and local governments are statutorily prohibited from requiring employees to obtain COVID-19 vaccinations. While some of these statutory prohibitions will take effect on September 29, 2021, existing Arizona law (A.R.S. §§ 36-114, -184), prohibits state and county governments from imposing vaccine mandates.
Private Businesses
Under federal and state law, private businesses can mandate vaccinations for employees but must provide reasonable accommodations for employees who cannot obtain the COVID-19 vaccine due to a disability or a sincerely held religious belief.
2. Whether a business can compel an individual to prove that they have received a vaccination before that person can patronize the business?
Private Businesses
Under federal and state law, private businesses that mandate vaccination for patrons must provide reasonable accommodations to patrons who cannot obtain the COVID-19 vaccine due to disability, and they must not discriminate against customers who cannot obtain such a vaccine due to a sincerely held religious belief.
Students
Under Arizona law, effective September 29, 2021, certain educational institutions will be prohibited from requiring proof of COVID-19 vaccination from students. Currently, public, private, and parochial schools are limited in conditioning student attendance on documentation of vaccines when parents have a personal objection or if a vaccine would be detrimental to a student’s health.
3. Whether, under a contract of carriage, a domestic airline carrier can require proof of vaccination as a prerequisite for flying?
Domestic airlines in the United States are primarily governed by federal law. Currently, there is no federal law that allows a domestic airline to require proof of a COVID-19 vaccine or refuse transportation of a passenger out of fear he/she might have a communicable disease. Under federal regulation, an airline may not refuse a customer based on a communicable disease unless the customer (1) actually has a communicable disease (2) that is a direct threat to other passengers, and (3) cannot obtain a medical certificate setting forth preventative measures. It will be difficult for an airline to establish these requirements with respect to COVID-19 when airline service has continued throughout the pandemic with masking and ventilation as the primary preventative measures.
The governing board president of Flagstaff charter school Northern Preparatory Academy (NPA), Cristy Schaefer Zeller, resigned Thursday evening after calling parents and students opposed to mask mandates “the worst of humanity who can’t STFU [shut the f*** up].” It isn’t immediately apparent what prompted Zeller’s social media post, but that same day several students refused to wear masks as required by NPA’s mask mandate, which had just gone into effect.
In her resignation letter, Zeller said that those who were upset by her remarks and called for her resignation were bullies. Despite Zeller’s track record online of speaking freely about her beliefs, she claimed that she had no way of defending herself or standing up for her beliefs.
It doesn’t appear that NPA leadership wanted Zeller to resign. In an email obtained by AZ Free News, NPA Superintendent David Lykins told parents on Wednesday that Zeller’s comments were her own and not authorized or endorsed by any aspect of NPA. Lykins wrote:
Dear NPA Community,
I wanted to acknowledge that one of our NPA Governing Board Members had made statements on their Facebook account as a private citizen that do not reflect the core values of Northland Preparatory Academy. These comments are the views of an individual and they were not authorized or endorsed by the NPA Governing Board as a public body, NPA as a school, or NPA’s faculty and staff.
I have met with this Board member this afternoon and she has issued a public statement regarding this issue (see attached). Additionally, I would also like to share that all pertinent information surrounding these statements will be shared with the remainder of the Northland Preparatory Academy Governing Board for future discussions and planning at the Board level.
I received communication from an NPA parent today that shared the following, “leadership is an awesome responsibility, and as leaders we are human and make mistakes.” I agree with this statement, but also feel it is important to acknowledge our mistakes, learn from them and take actions to prevent them from happening again.
Zeller’s statement read:
I am proud to serve on the NPA Governing Board as its President. It has come to my attention that statements I made on my personal social media accounts have been circulating among the Flagstaff community. As a private citizen I work as an activist, however my personal opinions and politics are mine alone, and do not reflect those of Northland Preparatory Academy or its Governing Board. I continue to remain committed to NPA’s mission and the health and safety of our community, and making NPA a diverse, equitable, and inclusive environment for all. (emphasis added)
In her post condemning those opposed to masks, Zeller cited that her fellow liberals, as well as a number of educators and health care workers she’d spoken with, were angry and frustrated. She claimed that Flagstaff’s socioeconomic systems are falling apart.
“[…] Us liberals tend to want to be fixers and empathetic and all the rainbows and unicorns. No more. As MTV taught us… it’s time to stop being polite and start being real. Get busy,” wrote Zeller. “I am not being dramatic. I have spoken with dozens of people in education and healthcare that are about to break, if they are not already broken. They are angry, sad, and defeated. They love their professions, but despise their jobs right now. The anger and frustration is electric. It did not have to be this way. We are so angry that we now have to spend our time dealing with the worst of humanity who can’t STFU about their freedom to choose about a piece of fabric on their face.” [emphasis added]
Last Friday, AZ Free News reported on Zeller’s Facebook post and her other social media posts ridiculing mask critics, Trump supporters, and Republicans as “idiot a**holes” and intellectually inferior. At the time of publication, Zeller’s Facebook and Twitter pages containing these remarks were public.
Zeller’s resignation letter is reproduced below:
To the Members of the Northland Preparatory Academy Governing Board and Administration:
I have come to the very difficult decision that it is time for me to resign my position as President and Member of the Northland Preparatory Governing Board effective immediately. I am immensely proud of the work we have done together over the last five years. Our accomplishments together include:
Hiring of a new Superintendent
-A Board Statement on Gun Violence
-A Board Acknowledgment of Racism at NPA and a plan to address it, which included the establishment of a Diversity, Equity, and Inclusion Committee
-Navigating the last 17 months of the COVID-19 pandemic
-The courageous decision to mandate masks on the NPA campus this fall.
I care deeply for the students and faculty of NPa, and a large part of me feels that I am abandoning them at a time when strong leadership is more important than ever. It is antithetical to who I am that I would allow someone else to bully or pressure me into such a decision, however I find the current situation to be untenable.
The personal toll that the last 17 months has taken on me and my family has finally become too much. The attacks I have endured are unacceptable and unwarranted. This did not start yesterday. It began over a year ago. My husband, myself and my children have experienced negative backlash in small and large ways because of my strong stances on public health and anti-racism.
Over the last 48 hours I have received DOZENS of harassing emails, phone calls and text messages. I must prioritize my mental health over this continued abuse, especially when I cannot defend myself or stand up for what I believe in.
I have been targeted by a few individuals and I fear that they will continue to escalate this according to a playbook being followed around the United States. I want to remove myself from the situation, as the longer this goes on, the more you are all distracted from the incredibly important tasks ahead, and the more ineffective I become in my role.
I will work in whatever capacity you all would like to help transition the committees I chair and my notes from the last Board meeting. You will just need to let me know how and if you would like me to assist with the transition.
I admire you all deeply and I hope you know that this decision weighs very heavily on my heart and will for some time. I will be supporting you as a member of the public and fellow parent.
I will continue to advocate for children in the most important ways. I hope that NPA will continue to make every decision student-centered, just as I am doing now.
As of press time for this report, Zeller’s social media pages and all posts relevant to this and other related reports have been either removed or made private.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
Both Chandler Unified School District (CUSD) and Tanque Verde Unified School District (TVUSD) declined to join the growing list of schools reinstating a mask mandate. For now, masks will remain optional at both districts.
During special meetings on Thursday devoted solely to COVID-19 mitigation strategies, the governing boards of CUSD and TVUSD both voted against reinstating a mask mandate.
For CUSD, the vote was close: 3 to 2. Board members Lara Bruner and Lindsay Love both voted in favor of restoring a mask mandate. For TVUSD, the board was decisively against reinstating a mask mandate: 4 to 1. Only board member Vieri Tenuta voted yes.
The legislature passed a law in June intending to ban mask mandates in schools for the summer and fall school years. Those schools reinstating their mask mandates have argued that the ban doesn’t apply until September 29. That’s the date that a judge has ruled the state’s mask mandate ban was active, citing Arizona law prohibiting statutes from taking effect until 90 days after a legislative session ends.
Maricopa County Superior Court Judge Randall Warner issued the ruling in the case of a biology teacher challenging Phoenix Union High School District’s (PXU) mask mandate.
The CUSD Governing Board attached a copy of the PXU ruling for consideration. They also included several announcements on education funding from Governor Doug Ducey – one of which concerned the $163 million in grants only available to schools that continue in-person learning for the rest of the year and follow all state laws.
By that latter stipulation, Ducey meant the mask mandate ban he signed into law in June. The governor and other supporters argue that the law took effect months ago based on a retroactivity clause.
Approximately 20 other districts, private schools, charter schools, and Montessori schools have reinstated mask mandates.
The school districts are: Alhambra Elementary School District, Amphitheater School District, Catalina Foothills School District, Creighton School District, Flagstaff Unified School District, Glendale Elementary School District, Kyrene School District, Littleton Elementary School District, Madison School District, Miami Unified School District, Nogales Unified School District, Osborn School District, Peoria Unified School District, Phoenix Elementary School District, Phoenix Union High School District, Roosevelt Elementary School District, Tucson Unified School District, and Washington Elementary School District.
Private schools requiring masks are Brophy College Preparatory and Salpointe Catholic High School, whereas charter schools requiring masks are Arizona School for the Art and Flagstaff Arts and Leadership Academy. The two Montessori schools requiring masks currently are Haven Montessori School and Khalsa Montessori School.
At least one other school district will decide on reinstating a mask mandate Friday – Marana Unified School District (MUSD). The district also cited Judge Warner’s recent ruling as rationale for considering the matter of restoring mask mandates.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
Governor Doug Ducey’s program offering up to $7,000 in grants for low-income K-12 parents wanting to relocate their students due to their current school’s COVID-19 protocols began Friday. Eligible families have a total household income at or below 350 percent of the Federal Poverty Level, and show proof that their current school has COVID constraints, including: mask mandates, quarantines, vaccine mandates, or discrimination based on vaccination status. The grant funds may be used for a variety of education-related expenses beyond tuition like transportation, online tutoring, and even child care.
Ducey announced the $7,000 booster on Tuesday. The governor’s office cited Yale University research that found COVID-based school closures disproportionately harm low-income students. More affluent students reportedly didn’t exhibit any significant impairments.
“We are committed to keeping all Arizona kids on track, closing the achievement gap and equipping underserved students and families with the tools they need to thrive,” said Ducey. “Our COVID-19 Educational Recovery Benefit will empower parents to exercise their choice when it comes to their child’s education and COVID-19 mitigation strategies. It will also give families in need the opportunity to access educational resources like tutoring, child care, transportation and other needs. We know that historically disadvantaged communities bear the brunt of excessive and overbearing measures, and we want to ensure these students are protected.”
Parents interested in learning more about these grants can review or apply for the program here. Applicants are accepted on a first-come, first-serve basis.
These grants were just one of three plans increasing education funding that the governor introduced Tuesday.
Another plan that Ducey announced was $163 million in grant funding for district and charter schools that remain open all year. Ducey explained that the goal of this funding incentive is to increase funding to $1,800 per student.
The third plan Ducey issued offers up nearly $65 million to a variety of learning programs across all education levels: K-12 literacy, adult education, and teacher professional development. Like the plan offering up to $7,000 per student for low-income families, $3.5 million of these funds will help launch 50 new micro-schools: an alternative learning model to public and private schools for low-income families.
AZ Free News inquired with State Representative Michelle Udall (R-Mesa), the House Education Committee Chair, about this latest in education funds for parents. Udall didn’t respond by press time.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
On Thursday, the Arizona Supreme Court ruled that Proposition 208 (Prop 208), the voter-approved increase on income taxes to fund public education, was unconstitutional and remanded to lower court. If that trial court determines that Prop 208 exceeds the constitutional spending limit, then Prop 208 would be killed. Chief Justice Brutinel authored the opinion.
The case, Fann, et al. v. State of Arizona, et al., challenged one major provision of Prop 208 and the circumstances of its approval.
First, the case questioned how Prop 208 exempted itself from the Arizona Constitution’s provisions on tax revenue spending caps, or the Education Expenditure Clause.
Brutinel ruled this aspect of Prop 208 unconstitutional. The chief justice made sure to note that this ruling rendered the other aspects of Prop 208 unworkable and unseverable. Meaning, no part of Prop 208 is enforceable if the trial court concurs with the Arizona Supreme Court’s opinion.
“We hold that the direct funding provision does not fall within the constitutional definition of grants in article 9, section 21 of the Arizona Constitution, and Prop. 208 is therefore unconstitutional to the extent it mandates expending tax revenues in violation of the Education Expenditure Clause,” wrote Brutinel. “Likewise, the remaining non-revenue related provisions of Prop. 208 are not separately workable and thus not severable.”
Second, the case challenged tax impositions made by voter initiative. The plaintiffs cited the Arizona Constitution’s Tax Enactment Clause, which stipulates that tax changes must be approved through a two-thirds vote by the state legislature.
The court disagreed with this assessment.
“Additionally, we hold that Prop. 208 does not violate article 9, section 22 of the Arizona Constitution (‘Tax Enactment Clause’), because that clause does not apply to voter initiatives,” wrote Brutinel. “Therefore, the bicameralism, presentment, and supermajority requirements found therein are inapplicable to Prop. 208.”
The Goldwater Institute, Snell & Wilmer, and Greenberg Traurig filed the lawsuit on behalf of the 11 plaintiffs: State Senate President Karen Fann (R-Prescott); State Senators David Gowan (R-Sierra Vista) and Vince Leach (R-Tucson); Arizona House Speaker Russell Bowers (R-Mesa); State Representatives Regina Cobb (R-Kingman), John Kavanaugh (R-Fountain Hills), Steve Pierce (R-Prescott); Montie Lee of Lee Farms; Dr. Francis Surdakowski; NO on 208; and Arizona Free Enterprise Club.
In a statement, Goldwater Institute Vice President for Litigation Timothy Sandefur classified the ruling as a win.
“Today represents a major victory for the hardworking taxpayers of Arizona,” said Sandefur. “The justices made clear that the state constitution’s limits on spending—which were added to the Constitution by the voters themselves—cannot be simply ignored, as Prop. 208’s funders attempted.”
Governor Doug Ducey concurred that this ruling signaled that the end was near for Prop 208.
“There is a clear legal path to Prop 208 being knocked down entirely, it’s only a matter of time,” tweeted Ducey. “The out-of-state proponents of this measure drafted bad language, and now they are paying the price.”
Proposition 208 (Prop 208) tacked on 3.5 percent to the existing 4.5 percent income tax for individuals making over $250,000 or couples making over $500,000. Previously, Arizona’s income tax rate was capped at 4.5 percent for individual incomes above $159,000 or joint incomes above $318,000. The revenue from the income tax increase would fund a wide variety of educator salaries and programs.
About 52 percent of Arizonans voted in favor of Prop 208 last November, and about 48 percent voted against it.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
On Thursday, Holocaust survivors, students, lawmakers and educators joined Governor Doug Ducey as he signed legislation strengthening instruction about the Holocaust and other genocides in Arizona’s schools. House Bill 2241, sponsored by Rep. Alma Hernandez, requires young Arizonans to learn the enduring lessons of the Holocaust and the tragic consequences of religious and racial intolerance.
“Arizona has long been a leader on civics education, but it’s clear we need to extend our curriculum to more closely cover the horrors of the Holocaust,” said Governor Ducey. “This bill is a step in the right direction but our work is far from over. Antisemitism and other forms of hate are real, and we must do more to make sure this never, ever happens again. My thanks to Representative Alma Hernandez for leading this effort, along with Speaker Bowers and all of the survivors who have dedicated their lives to spreading awareness.”
Governor Ducey was joined by Senate President Karen Fann, House Speaker Rusty Bowers, legislators, Holocaust survivors, members of Arizona’s Jewish community, Holocaust education advocates and students at the Arizona State Capitol for the ceremonial signing.
“I can’t begin to express how proud I am to see this important legislation get signed,” said Representative Hernandez. “Thank you to the Holocaust survivors, advocates, students and community leaders who supported House Bill 2241. This is a big win for not only Arizona’s Jewish community, but for the future of our state. My thanks also goes to Governor Ducey for his continued support in our efforts to reject antisemitism and expand Holocaust education.”
According to a Pew Research Center study conducted in 2019, fewer than half of respondents could correctly answer multiple-choice questions about the number of Jewish individuals who were murdered during the Holocaust or the way that Adolf Hitler came to power.
“This important bill will strengthen our youth’s understanding of a dark time in history,” said Speaker of the House Rusty Bowers. “I’m grateful to Representative Hernandez for her effort in leading this bill in the legislature. It was an honor to work with my colleagues to get this done, and I’m grateful to Governor Ducey for signing this bill into law.”
Antisemitism has been on the rise in recent years with 18 incidents in Arizona already this year. Last year there were more than 2,000 incidents of antisemitism around the country and 23 incidents in Arizona, according to the Anti-Defamation League.
“These antisemitic acts are disgraceful and unacceptable, and we’re going to do everything we can to ensure Arizonans of the Jewish faith are treated with respect, dignity and humanity,” the Governor said during the signing ceremony.
