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Reactions sharp over Ducey using federal funds to force end of school COVID masks

After announcing two moves to punish school districts for implementing mask mandates, Arizona Gov. Doug Ducey faced withering criticism, and federal officials said they would review the expenditures and could force the state to repay "misused funds."

On Tuesday, Ducey announced two separate funding programs, both aimed squarely at school districts that have implemented mask mandates in spite of legislation signed by Republican governor over the summer. On Monday, a Maricopa County Superior Court Judge ruled that while the Legislature backdated the law, it has "not yet become effective" because new laws cannot be enforced until 90 days after the end of the legislative session.

Despite this ruling—and a lawsuit filed by the Arizona Education Association challenging the constitutionality of the ban on mask mandates—Ducey moved forward, announcing two program that leverage millions in federal funding: one acting as a lure for districts and schools to fall under his orders; and the second, a program that gives parents up to $7,000 to leave districts that have decided to implement mask mandates, quarantine students exposed to COVID-19, or have been forced to close because of outbreaks.

The plans would affect most of Tucson's public school students, removing millions in potential funding from schools across the Tucson area.

Tucson Mayor Regina Romero called the plan "grotesque," and U.S. Sen. Krysten Sinema called it "the most absurdly dangerous and anti-science step" the governor has taken. "And, that's saying a lot," Sinema wrote.

Meanwhile, U.S. Rep. Raúl Grijalva sent a letter to federal Education Secretary Miguel Cardona, and demanded a review of the legality of the governor's proposal, which Grijalva said will "disproportionately deny aid to schools that take appropriate mitigation actions to protect their students."

Similarly, U.S. Rep. Greg Stanton wrote to Treasury Secretary Janet Yellen calling Ducey's plan "deeply irresponsible," and asked her to "make clear to the governor that if he follows through with this reckless proposal, he risks losing these funds for Arizona."

In recent weeks, school districts in Southern Arizona have set up quarantine policies and mask mandates to manage the beginning of the school year against the rising tide of COVID-19 cases driven by the Delta variant. There were another 3,546 new confirmed COVID-19 cases in Arizona on Thursday, making for more than 20,700 in the past week — with 96 deaths. Pima County, with 401 new cases, has had more daily cases than at any point in the past seven months as the outbreak sees another wave continuing to grow.

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At least 14 school districts across the state have implemented mask mandates, including Amphitheater Public Schools, Flowing Wells Unified School District, Sunnyside Unified School District, Catalina Foothils School District, and Tucson Unified School District.

Overall, nearly 85,000 students are included in these districts alone.

TUSD announced a mask mandate on August 4, and over the past two weeks, the other districts set up their own mandates to mitigate the spread of COVID-19. Along with K-12 schools, the state's three public universities, and Maricopa and Pima County Community colleges have also established mask mandates.

The board's decision flew in the face of Arizona's HB 2898, which "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.

However, after the judge's decision on Monday, Amphi and Catalina Foothills implemented masks mandates, and so did Sunnyside, joined by Nogales Public Schools on Thursday.

However, the laws allows private schools like Salpointe Catholic High School and Brophy College Preparatory to operate their own mandates.

The first program, announced Tuesday, would send $163 million to districts and charter schools that follow "all state laws," and remain "open for in-person instruction," Ducey said.

The funding was made possible through the American Rescue Plan, a $1.9 trillion funding bill signed into law by President Joe Biden in March. Intended to mitigate the spread of COVID-19 with extended unemployment benefits, new stimulus payments to individuals, the plan earmarked nearly $130 billion for K-12 schools to safely reopen for classes in the fall. This includes about $4 billion slated for Arizona, including around $2.6 billion for elementary and secondary schools as an emergency relief fund.

Ducey said that the funding—dubbed the Education Plus Up Grant—will be sent to districts and charter schools "following all state laws and remaining open for in-person instruction as of August 27 and throughout the remainder of the school year."

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Ducey said that the federal government "provided additional funding to schools in need" but he complained that the allocation method "result in significant disparities across schools."

"The goal of the Education Plus Up Grant Program is to give every K-12 public and charter school the opportunity to receive up to $1,800 per pupil funding," he said, adding that the new program would provide supplemental funding, but only if school leaders adhere to elements of HB 2898—a state law that was passed along with a stack of others at the tail-end of the legislative session.

"Parents have worked tirelessly over the past year and a half to keep their kids on track," Ducey. "Parents are in the driver’s seat, and it’s their right to make decisions that best fit the needs of their children. Safety recommendations are welcomed and encouraged — mandates that place more stress on students and families aren’t," he said.

"These grants acknowledge efforts by schools and educators that are following state laws and keeping their classroom doors open for Arizona’s students. My thanks to legislative leadership for working collaboratively over the last couple of months to put more money into K-12 education and ensure schools are in compliance with state law."

Ducey's office said that districts have 10 days to rescind their mandates, or they will lose out on federal funding.

In a letter to Ducey, U.S. Rep. Ann Kirkpatrick said she is Arizona’s only congressional representative on the Appropriations Committee, and had "worked tirelessly to ensure" that Arizona had "significant federal funding for urgent relief.

"This effort was successful, to the great relief of parents and educators in my district and around the state. Now, you have placed these educators in an impossible position – protect their lives and health and those of their students, or risk losing the funding Congress intended them to receive," she said. "I am, frankly, not surprised by your disgraceful decision to again undercut our schools, and completely disregard and politicize the advice from our medical professionals, but nonetheless urge you to reconsider."

Even as Ducey has pushed hard for vaccinations across Arizona, his office has pushed hard against masks requirements and quarantines since the summer.

In mid-July, Kaitlin Harrier, education policy advisor for the governor's office, admonished Catalina Foothills and the Phoenix-area Peoria Unified School District for implementing quarantine policies.

In her letter, Harrier complained that that the district's quarantine policy would forced the district to send home "entire classrooms" of students under age 12 for up to 14 days, and "potentially on multiple occasions with no way to make up for that lost learning time."

"This policy must be rescinded immediately," Harrier wrote, adding that Arizona Department of Health Services is "prepared to provide guidance" on how to protect students and ensure they receive "the education that our state's Constitution promises them,  in alignment with state law.

The district—supported by Pima County officials—shot back, telling her that nothing in Arizona's law restricts a district from "following guidance provided by federal, state, and local public health authorities with regard to students who have been exposed to COVID-19."

"It would not be appropriate or reasonable for school districts to ignore these public health standards," lawyers for the district wrote, and Arizona law "does not mandate that they do so." 

On August 4, TUSD's Governing Board declared a mask mandate during an emergency meeting, citing the spread of cases in a neighboring district.

Gabriel Trujillo, TUSD's superintendent, called the announcement "disappointing," adding that according to a Maricopa County Superior Court Judge Randall H. Warner, his district is in "full compliance with state laws pertaining to the offering of in-person learning and a school district’s authority to implement a mask mandate as part of its COVID-19 mitigation protocols as HB2898 does not go into effect until September 29, 2021." 

On June 30, Phoenix Union High Schools said that it would require masks, prompting a lawsuit from Douglas Hester, a biology and environmental science teacher at Metro Tech, who argued that the district was violating HB 2898, a state law passed at the tail end of the state's legislative session. The bill blocks school districts, along with counties, cities, and towns, from requiring students or staff to wear a face-covering during school hours, and on school property.

Judge Warner ruled in Hester v. Phoenix United that the law was not in effect, yet.

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"This is another unfortunate example of the kind of inequity that has plagued our educational system and that has the potential to further exacerbate the achievement gap in this state," Trujillo said. 

"Has Gov. Doug Ducey gone mad? This is absolutely evil and grotesque," said Mayor Romero on Twitter. "School districts should not have to choose between protecting their students and receiving federal funds that the governor has sat on until now."

Later, she added that the governor's actions are "endangering our children and contradict the guidance of his own health department. As the mother of an 11 y/o who cannot get the vaccine, I urge these governors to keep their political theatrics out of our classrooms."

Kathy Hoffman, the state superintendent for public education, was just as critical.

"Today's announcement demonstrates a remarkable ability to ignore any lessons gained from a year and a half of dealing with COVID-19. The goal is in-person learning—something that cannot be achieved by forcing sick students to go back to school with their healthy peers. And, as a reminder for Gov. Doug Ducey, no student under the age of 12 is eligible for a COVID-19 vaccine."

Statewide data shows that just 17.9 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 more than 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.

"This is another outrageous attack on public education by the Governor when he should be listening to school leaders and educators on what is need to keep students safe, and schools open," Hoffman said. "We need serious leadership to get our students and schools through the pandemic, and that is woefully lacking from the 9th floor."

Mandate limit faces separate constitutional challenge

Arizona's law against mask mandates also faces a challenge from the Arizona Education Association, which sued on August 13, arguing that the law is unconstitutional and violates a legal requirement that legislation must be focused on a single subject.

As the lawsuit argues, the three bills passed that makeup the legislation were a "hodgepodge" of unrelated policy provisions titled as "budget reconciliations" that "have nothing to do with the budget."

They also argued that because HB 2898 "bans all public and charter schools—but not private schools—from requiring students and staff to wear masks in school protect against COVID-19," the bills violate the equal protection clause.

"Gov. Ducey and the GOP legislative leadership are putting our children in harm’s way and our communities at risk,” said AEA President Joe Thomas. "Their actions are reckless and abusive. By tying the hands of our local school board leaders, lawmakers are preventing them from making decisions to keep our students safe."

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Thomas added that the grant requirement "systematically eliminates access to this vital funding source for most traditional public-school districts across the state while prioritizing funding access for elite private and charter institutions."

"We know the majority of parents and our educators support our school leaders doing everything they can to keep our students and staff safe and healthy," he said. "We’re seeing more and more school districts taking steps to protect their students and communities. But they shouldn’t have to break the law to implement common sense protections for our students. We urge lawmakers to listen to their constituents and make the right decision to ensure our classrooms and campuses are safe so we can keep our students learning in our classrooms."

Grants for parents to leave schools that require masks, quarantines

Ducey also introduced includes the COVID-19 Educational Recovery Benefit program, which will give parents up to $7,000 to "provide choice for parents who are facing financial and educational barriers due to unnecessary closures and school mandates, and that are not in compliance with the provisions set forth in state law."

The governor earmarked $10 million from the program, covering up around 1,400 students in Arizona. All told, enrollment data from the Arizona Department of Education shows there are about 1.1 million children enrolled in Arizona's schools, including preschoolers through high school students. In Pima County, there are about 144,000 children enrolled in school.

The program will allow parents to request grants to cover expenses related to child care, transportation, online tutoring and tuition, and grants will be offered on a first come, first serve basis, the governor's office said.

Eligible families must have a total household income that it at or below 350 percent of the Federal Poverty Level, the governor's office said, which would mean that a family of four with an income at $92,750 per year would be eligible—or about $33,000 above Arizona's median household income in 2019. 

Parents must not only apply for the funding, but "must demonstrate that their current school is isolating, quarantining, or subjecting children to physical COVID-19 constraints in schools."

This includes the requirement that children wear masks to protect students and teachers from the spread of COVID-19, but also if schools give what the governor's office called "preferential treatment to vaccinated students."

So far, only two schools have presented plans to treat vaccinated students differently from unvaccinated students, outlining plans to quarantine students who are unvaccinated only if they had a recent contact with someone infected with COVID-19.

The governor's office said that such a policy violated the law created by HB 2898, which has been challenged in court.

Ducey's office said his office has been "working for weeks to craft a program that provides additional education options for families in need while complying with federal guidelines."

The U.S. Treasury said that it would review the plans.

"A primary purpose of the state and local funding in the American Rescue Plan is to support efforts to stop the spread of COVID-19. The Centers for Disease Control has identified vaccines and masks as two of our best tools to prevent the spread of COVID-19, especially in school settings," said Treasury spokesperson. "No state should use federal funds to prevent or discourage schools from using evidence based approaches to stopping the spread of COVID-19. Treasury is monitoring all proposed expenditures and expects any state or local government that uses State and Local funds in violation of the eligible uses to repay the misused funds to the federal government."

"Now, the Treasury Department has made it crystal clear that the govenor’s plans are a violation of the law – Arizona needs these federal dollars and Gov. Ducey is compromising that. It is abhorrent, disgusting, and puts our children at risk," Kirkpatrick said. "Gov. Ducey, you have the power to reverse this politically motivated decision – use it."

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Ariz. Gov. Doug Ducey during a press conference in March.

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