The state is constitutionally protected from legal challenges to Arkansas' prohibition on government mask mandates, state lawyers said in final arguments in the litigation submitted Friday.
An alliance of parents, educators and Pulaski County authorities, with the endorsement of Gov. Asa Hutchinson, sued to overturn the law, Act 1002 of 2021, on a variety of grounds, including claims that the mask prohibition discriminates against public-school students, usurps judicial authority, infringes on the governor's authority over the National Guard and restricts the power of county officials to safely operate their facilities.
Act 1002, passed by the state Legislature in April, bars government entities from requiring face coverings, with exceptions for prisons, juvenile detention facilities and state health care facilities. The law does not apply to private businesses.
Pulaski County Circuit Judge Tim Fox heard testimony during a one-day trial on the issue last month with final arguments due in writing Friday.
The filings start a countdown for Fox to make a final ruling, which is expected to be appealed to the Arkansas Supreme Court no matter what decision he makes. The law requires that Fox make every concession that he can toward finding that the mask ban is legal.
Enforcement of the law has been on hold since August when Fox issued an injunction, pending resolution of the lawsuit challenging the mask-mandate ban.
The Supreme Court in September declined to lift Fox's preliminary injunction.
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In their final arguments, lawyers for Attorney General Leslie Rutledge, who is defending the law, state that Act 1002 is a legitimate exercise of legislative authority by the General Assembly and that there are no grounds to overturn it.
"The Arkansas Legislature stated that face coverings would no longer be necessary and were a burden on the public health, peace, and safety of the citizens of the State of Arkansas. The decision to end mask mandates is related to the legitimate governmental interest of the public health, safety, and peace of the citizens of the State of Arkansas," Assistant Attorney General Sam Strange wrote in the 50-page brief.
Sovereign immunity, the state's constitutional protection against lawsuits, can only be overcome if the plaintiffs can show that lawmakers exceeded their authority or acted illegally, but they cannot do so, Strange argued.
"The Arkansas General Assembly likely weighed the effectiveness of masks in preventing the transmission of COVID-19, the public discord among many citizens in the State of Arkansas regarding governmental mask mandates, and the desire to promote the highly effective COVID-19 vaccines in passing Act 1002," he wrote. "The General Assembly's decision to pass Act 1002 fell squarely within its authority to decide that state, county and local governmental mask mandates were not necessary at this time for an effective public health response to COVID-19 in Arkansas."
When Fox temporarily blocked the mask ban in August, he found evidence that the prohibition unconstitutionally discriminates against public-school children by barring masks in their schools while imposing no such prohibition in private schools. But the state lawyers argue that the judge must give consideration to the idea that legislators knew what they were doing when they exempted private schools.
"It is quite possible that the General Assembly recognized that the great majority of private schools in Arkansas are religious schools and those schools and students may have First Amendment concerns regarding mask mandates. Therefore, excluding private religious schools would serve the purpose of being consistent with the First Amendment," the state lawyers argue. "Under the Arkansas Constitution, those decisions are left to the branches of government that is directly accountable to the people. To the extent Plaintiffs challenge Act 1002's findings, the Court may not substitute its own determinations for that of the General Assembly. Therefore, Plaintiffs' equal protection claim regarding the distinctions drawn between public and private schools in Act 1002 fails as a matter of law."
Hutchinson, who signed the bill into law, was a nominal defendant in the suit. The two-term Republican governor said he has come to regret his decision and now believes that legislators went too far. While Hutchinson opposes a statewide mask-wearing requirement, he believes school districts should have the authority to require masking as needed to protect school students, his attorneys David Matthews and Sarah Waddoups stated in the governor's brief.
Of further concern to Hutchison is how the mandate-ban restricts his constitutional authority as commander-in-chief of the Arkansas National Guard. Act 1002 bars state Guard commanders from imposing a mask requirement, limiting the militia's effectiveness if called to assist agencies that do require masks, Hutchinson's legal team argued.
"Act 1002 interferes with smooth functioning of the National Guard and unduly infringes upon the Governor's ability to command and call upon the National Guard," the filing states.
The mask ban "significantly and unnecessarily" increases the risk of infection for public school students, the Little Rock and Marion school districts state in their brief.
"In adopting Act 1002 of 2021, the Legislature transformed a 'suitable and efficient' public school system into a dangerous and chaotic one," violating Article 14 of the Arkansas Constitution, which created the state's public school system, the districts' lawyers, Christopher Heller, Khayyam Eddings and Cody Kees, state. "It is undisputed that Covid-19 sickens and kills school-age children. It is also undisputed that wearing masks in schools can greatly reduce the transmission of Covid-19 and protect students, staff and their families from this virulent disease. Yet, in a perverse dereliction of the State's duty to provide safe and effective public schools, the Arkansas General Assembly passed Act 1002 of 2021 which deprived Arkansas school districts of this simple and effective tool for keeping their students and staff safe, and their schools open."