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TUSD requiring COVID masks in schools, pushing back against state law

Tucson district to challenge Arizona ban on mandating masks as Delta variant spreads

Students, teachers, parents and visitors on campuses in Tucson Unified School District must wear COVID-19 masks, the Governing Board voted Wednesday — a move that runs counter to a new state law intended to block such mandates.

That measure passed through the Republican-dominated Legislature and was signed into law by Gov. Doug Ducey this summer.

During an emergency meeting Wednesday morning, the district's Governing Board voted 4-0 to institute a mask mandate as the spread of the Delta variant of COVID-19 has ramped up cases in Pima County, where there is currently "substantial transmission" of the novel coronavirus.

TUSD schools will open for classes on Thursday.

If the district is found to be violating the state law, it risks having 10 percent of its budget held back by the state.

Adelita Grijalva, one of the board members, said that a neighboring school district had more than 100 positive COVID-19 cases at eight schools. "This variant is very different in how it affects young people," she said. "And, people can transmit the virus even if they are vaccinated."

She also said the mask mandate is necessary because around one-third of the district cannot be vaccinated because of age.

"Adults are the ones who have a problem with it," said Boardmember Natalie Luna Rose.  "I think if we look within ourselves, and listen to our children—out of the mouth of babes—they know the right thing to do."

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Luna Rose said that her father got COVID-19, and that he was a "long-hauler" enduring symptoms from the virus long after his original infection.

Dr. Ravi Grivois-Shah, another board member, said he had three children under 12 attending Tucson schools. As a doctor, he said that he'd lost patients to COVID-19 during the pandemic, and that he'd support a mask mandate. "The science and the public health recommendations are unequivocal," he said.

He also added that while the number of kids who die from COVID-19 is less than .03 percent, with a district of 40,000 students that could still mean the loss of 12 children.

Boardmember Sadie Shaw said that it was better to "err on the side of caution."

Board President Leila Counts did not attend the virtual meeting.

The board's decision flies in the face of Arizona's HB2898, one of a stack of bills signed by Ducey at the tail end of the state's legislative session. The law "prohibits counties, cities, towns, schools, and school districts from requiring students or staff to wear a face-covering during school hours and on school property." The law also restricts schools from requiring vaccinations against COVID-19 for students and staff, and would fine school districts and charter schools if they tried to enforce mandates. A similar version of the law also blocks the state's universities.

Ducey said that the new law "requires district schools to maintain open enrollment processes that are truly open and fair so all Arizona families can easily access the school that best fits their learning needs — with minimal paperwork or hoops to jump through."

"Educational freedom is essential," Ducey said. "In Arizona, parents are in the driver’s seat when it comes to choosing the best education for their child — not the government."

Just a few weeks ago, TUSD's Superintendent Dr. Gabriel Trujillo said masks would be optional in the district, citing HB2898. And, on Wednesday, he said that he supported the board's decision.

"We made a pledge to you that we would view this as a public health crisis—not through a political lens, not through a partisan lens, not through the lens of special interest groups," said Trujillo said. “And, I believe the governing boards actions reflected that in the face of unprecedented incursion upon their local authority, local control by a governor’s office and a legislature that had previously championed local control and local governance, in the early part of this pandemic, only to flip and contradict that earlier support."

TUSD's move risks 10 percent of the district's budget, which could be withheld by the state if the mandate is found to violate the state law — the same hurdle that saw the district curtail its Mexican American Studies courses a decade ago.

Phoenix school mask mandate headed to court

During the meeting, Rob Ross, the general counsel for TUSD said that there were "serious questions regarding whether the law is effective" before September 29—though the bill's text states that it went into effect on June 30. However, the bill was not passed with a 2/3 majority that is generally necessary for an "emergency clause" that makes a new law effective prior to 90 days after the end of the legislative session.

Ross said that the district could pursue court action to determine if its mandate is legal.

For his part, Ducey was equally unclear about the bill that he signed, echoing the perception that the law does not take effect until September 28 while being "retroactive," while saying Wednesday that "school districts seem to be attempting to take advantage of a perceived loophole."

With the move, TUSD joins the Phoenix Union High School District, which instituted its own mask mandate on Friday, and the Phoenix Elementary School District, which decided to require masks on Monday. On Wednesday, a court will consider that mandate after a teacher in the Phoenix Union sued the district.

The Roosevelt Elementary and Osborn school districts in Phoenix also voted Tuesday to implement mask mandates.

Ducey has yet to push back against the Phoenix-area schools, however, in mid-July, a member of his staff wrote a letter to two districts, including Catalina Foothills School District, that any plans to quarantine students who have had close contact with someone infected with COVID-19 would violate HB2898. However, Catalina Foothills shot back, arguing that it is full compliance with the new law.

The governor's spokesman, C.J. Karamargin, told TucsonSentinel.com on Wednesday that "the state of Arizona is not anti-mask. We are anti-mask mandates. Any student, teacher, staffer who wants to wear a mask can do so."

The clash over masks for students comes as districts plan to open as early as Thursday while attempting to mitigate infections of COVID-19, the novel coronavirus that has infected 35 million people in the U.S., and killed around 611,000. Over the last few weeks, the number of cases in the U.S. has sharply ramped up, showing a third wave of infections that has outpaced the wave of infections the country endured last July with nearly 78,000 cases reported Monday.

In Arizona, officials reported 2,286 new cases on Wednesday and 7 new deaths, adding to a total of more than 12,000 new cases in less than a week.

Statewide data shows that just 16.5 percent of those aged 20 or below have received one or more doses of the COVID-19 vaccine, according to the Arizona Department of Health Services. While those 12-15 were authorized to begin receiving the vaccine in May, the FDA has not approved coronavirus vaccinations for kids under 12. Pima County has distributed about 62,000 doses to people 12 to 18 years old.

Nonetheless, more than 24,000 kids in TUSD alone are unable to receive a vaccination against the virus because they are too young under the current vaccine authorizations, according to enrollment data from the district.

In late July, the state superintendent for schools said she was frustrated by the governor's refusal to impose a mask mandate.

"This did cause more of a disruption,” Kathy Hoffman, Arizona superintendent for public instruction said. “and I have to ask, why? What is the purpose of questioning these evidence-based practices?”

On July 9, the CDC updated its guidance for COVID-19 prevention in K-12 schools writing that masks "should be worn indoors" by those who are not fully vaccinated. "Consistent and correct mask use by people who are not fully vaccinated is especially important indoors and in crowded settings, when physical distancing cannot be maintained," the CDC said.

"Many schools serve children under the age of 12 who are not eligible for vaccination at this time," the CDC wrote. "Therefore, this guidance emphasizes implementing layered prevention strategies (e.g., using multiple prevention strategies together consistently) to protect people who are not fully vaccinated, including students, teachers, staff, and other members of their households."

Similarly, the Arizona Academy of Physicians supports masks, writing that all students above the age of 2 should wear masks while indoors.

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During a press conference Tuesday, the chief clinical officer of hospital system Banner Health said that around 5 percent of current COVID patients were kids, and that the number of kids at the network’s hospitals had doubled in July with 71 admissions. The number of kids sent to the ICU remains very low, said a Banner Health spokesman, and most pediatric patients are admitted to progressive care units instead.

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