The Biden Administration is stepping in with a warning of federal action to stop Gov. Doug Ducey from making good on his threat to punish Kyrene, Tempe Union and other school districts for requiring students and staff to wear face coverings.
Ducey said he will offer private school vouchers to students in any district violating the ban on mandates and will prevent them from sharing $163 million that the state got through the American Rescue Plan to boost per-pupil funding.
Those dollars will be available to district and charter schools "following all state laws'' as of Aug. 27. And the governor contends that schools requiring students and staff to wear masks are not in compliance.
Ducey's directive came the day after a Superior Court judge ruled that the ban on mandates does not become law until Sept. 29, prompting both Kyrene and Tempe Union to reinstitute mask mandates and make them effective Aug. 17.
But on Wednesday, the nation's top education official told Ducey his actions to block schools from mask mandates may violate federal law. And today, Ducey fired back, calling the Biden Administration's message "weak and pathetic," defending his decision to offer extra funding only to districts without mask mandates and vowing to settle a feud with the three state universities over their mask mandates "in the courts."
In a letter to the governor, Education Secretary Miguel Cardona said it is a ``shared priority'' that students be able to return to in-person instruction safely.
``Arizona's actions to block school districts from voluntarily adopting science-based strategies for preventing the spread of COVID-19 that are aligned with the guidance from the Centers for Disease Control and Prevention puts these goals at risk,'' Cardona said in the letter obtained by Capitol Media Services. The education secretary also said the policies and laws barring school districts from requiring those on campus to wear masks may infringe on their authority to protect students and staff - something they are required to do by federal law.
And Cardona, in a separate blog post, left no doubt that this is more than a hollow threat, saying his agency's Office of Civil Rights may initiate a directed investigation ``if facts indicate a potential violation of the rights of students as a result of state policies and actions.''
What makes that important is that Cardona is expanding the scope of what fits under those rules.
``We're expanding that to violations of safety,'' said Vanessa Harmoush a spokeswoman for the agency. "So if a parent or teacher or student feels like they aren't able to be safe in schools because of certain laws in place, they can file a complaint. We can pursue an investigation and kind of go from there," she said.
``So if a parent or teacher or student feels like they aren't able to be safe in schools because of certain laws put in place, they can file a complaint,'' she said. ``We can pursue the investigation and kind of go from there.''
And a finding against the state could result in action to forbid the state from enforcing the newly approved measure banning mask mandates.
``Let me be clear,'' Cardona said in his blog post. ``This department will continue to use every tool in or toolbox to protect the health and safety of students and educators and to maximize in-person learning as the new school year begins.''
Cardona did not specifically address Ducey's latest actions where he announced he is distributing $163 million in federal COVID relief dollars -- but only to schools that do not have mask mandates. The governor also announced he would use federal dollars to provide $7,000 vouchers to parents of children in schools with mask requirements so they could instead send them to private or parochial schools.
But he strongly suggested that use of American Recovery Act dollars is not what the law intended.Kyrene spokeswoman Erin Helm released a statement hours after Ducey's announcement that said, " In consultation with District legal counsel, Kyrene School District maintains that we are currently in compliance with all State laws and eligible for funding through the Education Plus-Up Grant Program.
Ducey and press aide C.J. Karamargin brushed aside the administration's remarks.
"What is it about families they don't trust?" Karamargin said, adding "The last thing we need is some bureaucrat in Washington, D.C., telling Arizona parents what's best for them."
He also said, "We are confident" that Ducey's plan to distribute the COVID relief program funds "aligns with federal guidance."
Kyrene spokeswoman Erin Helm released a statement hours after Ducey's announcement that said, "In consultation with District legal counsel, Kyrene School District maintains that we are currently in compliance with all State laws and eligible for funding through the Education Plus-Up Grant Program.
There was no immediate reaction from Tempe Union, which uses the same counsel as Kyrene.
The Tempe Union Governing Board is scheduled to meet tonight, Aug. 18, though COVID-related issues are not on the agenda.
It also was not immediately clear how much money could be at stake in Ducey's directive for the two school districts.
Gubernatorial press aide C.J. Karamargin said that as far as his boss is concerned, if schools want a share of that extra cash they had better rescind those mask policies a month earlier than the date that Judge Randall Warner decided in his ruling on a lawsuit brought by a Phoenix Union biology teacher against his school district's mask mandate.
"These are discretionary funds,'' Karamargin said. "This is the date that we believe will give districts time to get into compliance with state law.''
Karamargin brushed aside the court ruling that says districts that have mask mandates now are legally entitled to keep them until Sept. 29 without breaking the law, saying that's irrelevant with what the governor believes he has the power to do.
"The eligibility requirements of the grant are spelled out,'' he said. "They need to be in compliance for these discretionary grant funds by Aug. 27,'' Karamargin said. "If they want to be eligible for the grants, they should do so by Aug. 27.''
Ducey promised to provide up to $7,000 to parents for vouchers to send their children to private or parochial schools. And here, too, Karamargin rejected the idea that the governor has no authority to expand who is eligible for what are formally known as "empowerment scholarship accounts.''
"Do you have some indication he doesn't have the authority?'' he responded. And Karamargin said that he needs no legislative permission given these aren't state dollars subject to appropriation.
"These are American Rescue Act funds,'' he said. "They are funds made available to Arizona for the governor to use as he sees fit.''
Joe Thomas, president of the Arizona Education Association, called the Ducey’s moves "surprising and disappointing.''
"The governor never wastes an opportunity to spend more money on private school vouchers and seemingly take it away from public schools,'' he said. And Thomas said the moves "incentivize putting students in danger.''
And House Democratic Leader Reginald Bolding slammed what he called "Ducey's announcements today to essentially bribe school districts with additional funding if they don't join the growing list of districts opting to protect students and staff by requiring masks on campus, and unilaterally expanding private school vouchers, an idea that has failed at the ballot box and at the Legislature this past session."
"Governor Ducey has created his own Hunger Games for Arizona public schools," said Bolding, D-Laveen. "It's a sickening irony that he's doing this by dangling millions of federally provided funds for COVID-19 relief and forcing school districts to choose between the health and safety of kids and educators, or millions in additional funding that Republicans have withheld for years.”
“ At the same time, the Governor is attempting to revive a failed and unpopular effort to expand private-school vouchers, using misinformation and anti-mask hysteria as an excuse. Ironically, many private schools, including Brophy Prep, require masks and vaccinations to attend,” Bolding said.
Chris Kotterman, attorney for the Arizona School Boards Association, said those federal dollars are intended for COVID relief.
And Kotterman said using that cash for vouchers and to penalize schools that have mask requirements is doubtful – particularly when eligibility is conditioned on schools actually ignoring the health advice being provided by both the Department of Health Services and the federal Centers for Disease Prevention and Control about how to prevent the spread of the disease.
``So, basically, he's saying 'If you're doing these things that are recommended to prevent the spread of COVID and your kid's going to that school, here's $7,000 of federal COVID-relief money to send your kid to a place where that's not happening,' '' Kotterman said.
In his prepared statement, the governor said this will provide choice for parents who are facing barriers due to unnecessary school closures and mask mandates that do not comply with state laws.
``Our COVID-19 Educational Recovery Benefit will empower parents to exercise their choice when it comes to their child's education and COVID-19 mitigation strategies,'' Ducey said.
Eligibility is limited to parents who can demonstrate that their child is isolating quarantining, or subjecting children to physical constraints ``such as requiring the use of masks or providing preferential treatment to vaccinated students.''
All that, the governor said, runs afoul of what the Republican-controlled legislature approved earlier this year.
There is a financial needs component of sorts, with eligibility limited to households at or below 350% of the federal poverty level. But that is the equivalent of $92,750 a year for a family of four.
The move caught members of Save Our Schools by surprise. This is the group that got voters in 2018 to vote, by a 2-1 margin, to overturn a voucher expansion program approved by lawmakers and signed by the governor.
Sharon J. Kirsch, the group's director of research, pointed out that the decision comes even as the number of cases of COVID is increasing, including in schools, complicated by the now more-transmissible Delta variant.
``It's just utterly beyond me that he wouldn't be doing everything he can to protect kids,'' she said. ``And yet he's using this as an excuse, again, to expand vouchers.''
But Kirsch said any decision on whether to legally challenge the governor's action is premature.
Meanwhile, U.S. Rep Greg Stanton asked U.S. Treasury Secretary Janet Yellen to "make clear to the governor that if he follows through with this reckless proposal, he risks losing these funds for Arizona."
"This deeply irresponsible plan appears to violate the plain language of the law as written by Congress as well as the guidance issued by the Department of the Treasury," Stanton wrote. "These funds are not intended to be used for policies that undercut scientific research to pursue purely partisan ideological priorities."
Stanton charged that Ducey "has mismanaged the pandemic in Arizona from the beginning - and children have paid the price. As of the end of last month, Arizona suffered the second most child deaths related to COVID-19 in the United States. In July, the number of children hospitalized for COVID in my state doubled.
"Mismanagement has now turned into malfeasance that risks the health and lives of our children," he added, charging that "the governor’s gambit would put more children in danger."
There was no immediate response from Sen. Kyrsten Sinema on the legal question. But Sinema made it clear what she thinks of the governor's action.
"This is the most absurdly dangerous and anti-science step Doug Ducey has taken (and that's saying a lot, 2020),'' she said in a Twitter post.
"Unless kids under 12 have access to the vaccine, what are parents supposed to do?'' she asked. "Just hope their kids don't get sick and end up in the ICU?''
Ducey has emphasized that nothing in state law or any of his directives prevents parents from putting masks on their children. But that still leaves them at least partially exposed to unmasked students and adults who may be contagious.
Warner ruled on Monday that "under Arizona law, new laws are effective 90 days after the legislative session ends, which is Sept. 29 this year."
Warner acknowledged that there is an exception for emergency measures. But he said this does not qualify. "They require a two-thirds vote and this statute was not approved by a two-thirds majority,'' Warner wrote.
Ruling on a lawsuit brought against Phoenix Union for its mask mandate, the judge also said a clause in the measure making it retroactive to July 1 is legally meaningless.
Governing boards for both Tempe Union and Kyrene last week voted not to defy the ban but instead approved a resolution asking the Legislature and Ducey to rescind it.
In a separate move, meanwhile, Ducey on Monday issued an executive order forbidding municipalities and counties from requiring their employees to be vaccinated against COVID-19.
But Warner's decision did not sit well with Ducey, who has actively opposed mask mandates and signed the legislation banning them that Warner said Monday is not enforceable.
"Kids need a stable learning environment,'' said press aide C.J. Karamargin in a prepared statement. "Temporary mandates and efforts to flout the law aren't going to help them,'' he continued. "Kids should be in school, learning, and their parents should be the ones making decisions.''
Monday's ruling, however, is far from the last word on the issue. Warner emphasized that he is not making any decisions on the merits or even the legality of the law itself, but only its effective date. But the judge did tip his hand, at least a bit, suggesting that he believes that the restriction on mask policies enacted by lawmakers is valid -- or, at least will be when it takes effect.
"Phoenix Union High School District cites no legal authority that this statutes is beyond the legislature's powers,'' Warner wrote. "Indeed, Arizona law expressly limits school districts' authority to policies that are 'not inconsistent with law.' ''
While Warner's ruling sets no precedents, it gives added strength to similar restrictions imposed by at least six districts around the state that have decided, at least for the time being, to require those coming on campus to wear face coverings.
Warner emphasized that he is not making any decisions on the merits or even the legality of the law itself, but only its effective date. And the judge could raise those issues at a future hearing.
Chances are slim to none that the boards' resolutions last week will get any attention from the Legislature or Gov. Doug Ducey after 26 of 47 Republican lawmakers last week urged Ducey to punish districts that are defying the mandate ban.
Emotions ran high at the Kyrene Governing Board meeting Aug. 10 as members Michelle Fahy and Wanda Kolomyjec passionately denounced state leaders and refused to vote for the resolution, suggesting it was insufficient as COVID cases continue to climb.
Meanwhile, all three state universities and the Maricopa County Community College District said they would require masks in some campus areas, including classrooms.
The continuing rancor over masks came as new data from Maricopa County’s Department of Health showed COVID-19 cases rising within both Kyrene and Tempe Union district boundaries and in two of Ahwatukee’s three ZIP codes.
The lone exception to the surge in COVID-19 cases that has produced numbers not seen since February was 85045, which also happens to have the largest percentage of fully vaccinated residents.
Data show that 85045, where 69.2 percent of all eligible residents are fully vaccinated, showed cases per 100,000 fall from 183 to 171 and the percentage of new positive test results plummet from 10.8 percent to 4.4 percent.
Neither of Ahwatukee’s other three ZIP codes were as lucky even though 62 percent of all eligible residents are fully vaccinated in 85048 and 59 percent fully vaccinated in 85044, according to county data.
In 85044, cases per 100,000 swelled in one week from 187 to 406, though positive new test results fell from 17.6 percent to 13.7 percent, the data show.
In 85048, cases per 100,000 climbed from 186 to 264 while positivity fell slightly from 14.9 percent to 13.9 percent.
In Kyrene School District, cases per 100,000 went up from 199 to 305 while Tempe Union saw cases rise from 202 to 282. Positive new test results in both districts were around 14 percent, the data show.
The county does not break down vaccination rates by school districts.
Kyrene’s dashboard showed that as of Aug. 14, there were 102 COVID-19 cases in district schools, 70 in elementary schools and three in the K-8 Kyrene Traditional Academy.
Tempe Union’s dashboard showed that of 56 active COVID-19 cases, 53 were students and most were in the two Ahwatukee campuses with Mountain Pointe and Desert Vista reporting 23 and 19 cases, respectively.
And it wasn’t just public schools wrestling with the virus surge.
Horizon Honors sent 56 students and three adult staffers from a third-fourth grade classroom into quarantine until Aug. 23 after 11 people among them tested positive for COVID-19.
And after Summit School Ahwatukee reported on Aug. 15 that two students were diagnosed, parents began asking the administration to make masks mandatory.
Currently, neither Summit nor Horizon Honors require masks and the ban on mandates does not apply to Summit.
In his new executive order, the governor is declared that any local government that implements a vaccine mandate is breaking the law. And the governor said such violations are a Class 3 misdemeanor, subjecting government officials to up to 30 days in jail.
The governor said he also is relying on a provision in SB 1824, a budget reconciliation bill that specifically bars local government from requiring anyone to be vaccinated against COVID.
"The Arizona State Legislature, who are duly elected by the people have spoken on this issue,'' he wrote.
Members of both the Kyrene and Tempe Union boards voiced concern during their meetings that the rising number of COVID-19 cases within the districts’ boundaries will force them to suspend in-class learning and send all students back to learning at home.
They contended that a mask mandate would slow the prospects of that happening.
Several members said they had received hundreds of emails and the vast majority were from parents who wanted a return of a mask mandate.
Kyrene Board President Kevin Walsh read a letter from a parent who pulled her daughter out of a Kyrene school and enrolled her in a private school that required all students and staff to wear masks.
But while the two boards were unwilling to follow about a half dozen other districts in the state in openly defying the law, officials in both districts said they will be utilizing quarantines and taking additional mitigation measures.
Kyrene laid out a lengthy list of mitigation strategies that include a return to some of the measures that were in effect in 2020-21 but lifted at the start of the current school year.
Among them is a return to requiring children to immediately go to their classrooms when they arrive at campuses and more stringent social distancing that reduces free-wheeling mingling.
Kyrene also said its layered approach will include increasingly tougher mitigation measures on a school by school basis, depending on a combination of virus cases in a school and the level of virus spread in the community surrounding it.
Both governing boards also pleaded with parents and eligible students to get vaccinated, wear masks on campus and follow other recommended health protocols to stem the advancing virus.
Some board members also criticized Ducey for signing the Republican-driven measure banning masks.
Fahy bitterly noted that the law does not apply to private schools. She said Brophy College Prep, where Ducey’s children attend, recently imposed a mask requirement.
Fahy echoed the concern expressed by several members of both boards over the risks they would be taking if they defied the mandate ban – ranging from loss of school funding to personal liability.
Many board members also ripped Ducey and the Legislature for taking away local control over their districts.
“What the governor has done is taken it out of our hands. We can’t do anything that we need to do to protect our children right now and it’s hard,” said Tempe Union board member Berdetta Hodge.
“It’s really hard to sit here and know we’re going to pass a resolution,” she continued. “But are we going to really save the lives of the kids and the families? We can’t do what we were elected to do.”
Fahy told the community Ducey bears the responsibility for what might happen without a mask mandate and urged parents and others to write him.
“He should be ashamed,” she said. “You should be ashamed of him. He is holding the puppet strings and distracting our community members from what is most important – our children. They are our future and they deserve protection by us until they are old enough to advocate for themselves. We need to be their voice. So, let your voices be heard and directed to us, but also to your state leadership.”
Arizona State University was the first of the three state universities to announce mandatory face masks in a variety of situations.
All three universities now mandate face coverings in classrooms, teaching or research labs as well as “close-quarter environments where physical distancing may not be possible.’’
That specifically includes meeting rooms, workshop, design or production studios “and other indoor settings where social distancing is not possible.’’
Masks must be worn in any other “indoor and outdoor settings where physical distancing may not be possible.’’
But ASU Vice President Jay Thorne said he does not believe the new policy violates either. The key, he told Capitol Media Services, is that it does not discriminate.
“Our requirements apply to everyone on campus (students, faculty, staff, and visitors) and regardless of their vaccination status,’’ he said. “They do not conflict with the order or the legislation.’’
Ducey has yet to actually seek a court order to enforce the anti-mask legislation. Instead, his press aide simply denies there is a problem.
In a letter crafted by Queen Creek Rep. Jake Hoffman, whose district represents most of Gilbert, the 26 Republican lawmakers calling for punishment also want Ducey to give vouchers to students “trapped” in the districts defying the mask mandate ban, giving them tax dollars to send their kids to private or parochial schools.
“It borders on anarchy and destabilizes the very foundation of our society to have local governments effectively refusing to comply with the law,” the letter said. “It must not be allowed to stand. Any local government that willfully and intentionally flaunts state law must be held accountable.”
Stating “the window to hold the rogue local governments refusing to follow state law accountable is closing and the people of Arizona’s patience is running short,” the letter also declared:
"Stated plainly, the Legislature did its job by passing common sense laws to protect the children and students of Arizona from anti-science mask and vaccine mandates, now we are eager to see the executive branch do its job to ensure that those laws are faithfully executed by the various levels of government within this state.”
Meanwhile, a top doctor at the state’s largest hospital network said last week that the facilities could begin to impose capacity restrictions at the rate COVID-19 is multiplying in Arizona.
In a wide-ranging news conference, Dr. Marjorie Bessel, chief clinical officer at Banner Health, said the 71 children admitted with the virus last month is double the figure from a month before.
The good news, she said, is most pediatric cases the hospitals have seen so far do not require treatment in an intensive-care unit. But Bessel said that may be only a temporary situation.
“This does not mean that the virus cannot have a serious impact on children,’’ she said, pointing out the experience in states like Louisiana, Florida and Texas where the number of children in ICUs has spiked. In New Orleans, all the pediatric ICU beds were full late last week.
Bessell also stressed that any child getting in-person instruction should definitely be masked but repeatedly sidestepped questions about whether schools should mandate their use.
“The way that we get to that is something that I will leave to others,’’ she said.
As far as the governor's order on vaccines, Don't look to Tucson to back down."Gov. Ducey is paving the way for COVID-19 to spread uncontrollably throughout our state and attempting to impede those of us who believe in science-based solutions at the local level,'' Mayor Regina Romero said Monday afternoon in a prepared statement.
"After consulting with our city attorney, it is clear that this executive order is legally meaningless,'' she continued. "The action that mayor and council took last Friday will remain in full effect.''
That was buttressed by City Attorney Mike Rankin who told council members Ducey's order "has no effect'' on the council decision, saying the governor "lacks the authority to preempt the actions you took on Friday.''
But Ducey, in his order, insisted this isn't just about his executive order.
He said Arizona law gives primary jurisdiction to the state during public health emergencies. And he said local government have only the powers that are granted to them by the Arizona Constitution and state statute.
"Unlike the state, cities, towns and counties do not have inherent police power to implement vaccine mandates,'' his order states.
Meanwhile, in a related move, the City of Phoenix filed suit against the budget bill that contains the mask mandate, though the city is suing for different reasons and with a broader scope in mind.
It contends the Legislature illegally folded dozens of provisions - including the mask mandate ban but a number of other measures as well - into a state budget bill in violation of the State's constitution.
The suit focuses on the “single subject rule." The Arizona Constitution lays out a transparent process where bills must mean what they say. Budget bills have to be about the budget and substantive, general legislation has to be about one subject at a time. This ensures that proposed laws are debated and voted on only with other provisions that relate to them rather than buried among countless other provisions.
“This year's budget illegally limits cities' abilities to serve our communities and undermines the legislative process," said Mayor Kate Gallego.
According to the lawsuit, the Legislature violated the Constitution's requirements when it passed HB2893 and that the bill "included substantive legislative provisions that have nothing to do with spending or with each other. The bill in question is supposed to be about reconciliation of the 'criminal justice' provisions of the budget. But it covers a hodgepodge of topics impacting at least 10 different state agencies and addresses diverse topics from an emergency “readiness center" to disputes on water rights.
The bill also has a specific provision that would impact how the city supervises its police department, including the city's new Office of Accountability and Transparency.
In May, the Phoenix City Council passed an ordinance authorizing the creation of the OAT. A month later, as the city began recruiting an OAT Director, the State pushed HB2893 through as a budget reconciliation bill which according to the lawsuit is designed to “nullify an office created" for the purpose to “provide for independent civilian led review of the Phoenix Police Department."
“Whatever you think about the merits of the substantive items in the bill the City is challenging, Arizonans of all stripes should, and do, agree that the Legislature has to follow the Constitution just as everyone else does," said Jean-Jacques Cabou of Perkins Coie LLP, who filed the suit on behalf of the city. “The city's suit asks the court to enforce these rules in the Constitution."
“By stuffing so many different topics and so much substantive legislation into a bill that's supposed to simply enact parts of the budget, the Legislature made sure that none of these important topics got their own individual votes," said Cabou.
The suit seeks the court to rule the Legislature violated the Constitution and stop the bills from going into effect.