Judge Tim Fox makes it official; the mask mandate ban law is unconstitutional

Circuit Judge Tim Fox today ruled that Act 1002 of 2021, the legislature’s ban on mask mandates by public schools or government agencies, was unconstitutional.

The reasons were many: Encroachment on the powers of other branches of government (by the legislature on the governor and county government); unequal treatment of differently situated minors (in schools and in state correctional facilities), and a violation of the constitutional guarantee of a suitable education.

In the process, the judge scolded the attorney general’s office for initially insisting it had no conflict representing both Governor Hutchinson and the legislature. The governor contested the law (though he had allowed it to become law) for usurping his power. The legislature intervened to defend the law. Attorney General Leslie Rutledge initially said she could represent both parties. He commented: “The Attorney General’s failure to recognize an obvious conflict of interest wasted thousands of dollars of Arkansas taxpayers’ monies.”

Fox had earlier issued a preliminary injunction against the law. in August, pending a trial, which was held in November.

The plaintiffs were Veronica McClane and Ashley Simmons, parents of children too young to be vaccinated, the school districts of Little Rock and Marion and Pulaski County’s Judge Barry Hyde and Sheriff Eric Higgins.

Reactions to come. The legislature presumably will appeal, as the judge indicated.  It will be an uphill climb. A pertinent comment from one of the winning lawyers:

Many districts adopted mask mandates, but many have also pulled back as the virus waned. That situation, of course, has changed.


County Judge Hyde: “This is a very important ruling that will allow local elected leaders to respond to the current pandemic and other threats to the public.”


The judge’s findings (from the full opinion):

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