PHOENIX — If your child is sent home to quarantine when school resumes because of possible exposure to COVID-19, you have the right to challenge that in court.
And the state even will pay for your lawyer.
That bit of information comes because state Sen. Kelly Townsend, R-Mesa, decided to ask Attorney General Mark Brnovich about a section of the state Health Code that gives state and county health officials various powers during a state of emergency.
And one of them specifically allows those agencies to “require isolation or quarantine of any person.”
Townsend has never been a fan of those powers.
In fact, she crafted legislation earlier this year that would require a special session of the legislature to be called any time the governor declares an emergency. That would allow lawmakers to review what the governor has done, the restrictions imposed, and decide for themselves whether they are appropriate.
But what got Townsend’s attention is that county health departments were delegating the power to quarantine to individual school districts. And she said that has been happening with schools sending children home to quarantine if they believe the youngsters had been exposed to the COVID virus.
“There’s a lot of angry parents out there,” Townsend told Capitol Media Services.
She said a kid would go home for 10 days as ordered.
“And they’d immediate get turned around and go home again for another 10 days because a different kid was in the classroom,” Townsend continued. “And they wouldn’t tell them which child they had been exposed to, just ‘Your child’s been exposed.’”
In some cases, she said, schools would allow for online learning. But not always.
“They had kids missing large swaths of school from an arbitrary, random, unknown exposure that they didn’t establish,” Townsend said. “And now the child is missing a large amount of education.”
Hence, her request to Brnovich to find out what parents can do about it.
As it turns out, they can fight it, with the state picking up the legal tab.
Brnovich, in a new formal legal opinion, said there is a provision in the law that does allow for immediate quarantine or isolation without a court order when “any delay … would pose an immediate and serious threat to the public health.”
That’s not at issue here.
What is at issue is that local health departments are authorizing schools to issue isolation orders.
In Maricopa County, for example, Brnovich said the health officials told schools that students who come into “close contact” with an individual who tests positive for the virus are required to quarantine at home for 10 days. That phrase is defined as being within 6 feet of someone with COVID-19 for more than 15 minutes over a 24-hour period.
There are exceptions if both students were using fitted masks or if the exposed student is vaccinated or has previously tested positive within the prior 90 days.
Schools in Pima County, relying on health regulations there, are sending children home to quarantine for 10 days after exposure.
There is an option for a seven-day quarantine, but only if the child tests negative at least five days later and has been symptom-free for that seven-day period.
And there’s the same exception in Maricopa County for children who are fully vaccinated or have tested positive in the previous 90 days.
Brnovich said Arizona law requires health officials to seek a court order within 10 days after imposing the quarantine, with the agency required to prove that the isolation or quarantine is “reasonably necessary to protect the public health.”
But the attorney general, in his formal opinion, said those affected don’t have to wait that long.
He pointed out that anyone who is ordered isolated or quarantined can go to court to demand to be released from the restrictions. And Brnovich said the court must hold a hearing within 24 hours and issue a decision within 48 hours.
There also are provisions in law for those ordered quarantined to seek a court order protesting the conditions imposed.
Most significant, though, is that Brnovich said anyone who seeks judicial relief is entitled to have a lawyer appointed, with the state picking up the tab. And that legal representation “continues throughout the duration of the isolation or quarantine of the person.”
Townsend has been a critic of the ongoing state of emergency, first declared by Gov. Doug Ducey in March 2020, which has given the governor broad powers — and enabled the kind of quarantine orders that schools are imposing. She said earlier this year that’s why she proposed options for legislative review of such gubernatorial authority.
“Our government isn’t set up as a monarchy,” Townsend said. “We are not subordinate to the executive branch.”
In fact, Townsend said, she believes Ducey overreacted with the restrictions he put in place due to the pandemic, like closing down all bars and restaurants simply because some establishment had acted recklessly and allowed unmasked customers to pack the facilities.
“It was just an arbitrary and capricious decision that had no input from us,” she said, meaning state lawmakers.
Townsend’s measure did clear the Senate but was never acted on in the House.
Instead, lawmakers put a similar provision limiting the power of future governors into a budget bill that was approved in the last days of the session.
But that was one of the measures voided by a judge on the grounds that it violated constitutional provisions limiting all legislative acts be limited to a single subject and have a title that informs lawmakers and the public about its contents.
