Gov. Doug Ducey

Tempe Union and Kyrene officials are calling bluff on Gov. Doug Ducey’s threat to withhold a total $8 million if they do not withdraw their mask mandates.

But Kyrene Superintendent Laura Toenjes also said the district will take a different position after Sept. 29, when the state budget bill that includes a ban on mask mandates would take effect, according to a ruling by a Maricopa County Superior Court judge.

Unless other ongoing lawsuits prevail, Toenjes said Kyrene will obey the law and lift its mask mandate.

Asked if Tempe Union would do the same, district spokeswoman Megan Sterling told AFN last week that there was “nothing definitive on masks as of yet.”

“We will continue to evaluate as we draw closer to the Sept. 29 date,” she said.

Toenjes said, “For those families that have chosen to stay in-person, I believe it’s our responsibility to do everything we can as far as mitigation to keep kids in school. And I know our school leaders feel the same way after talking with them. 

“But I also feel very strongly that we do not break a law,” she continued. “There’s other ways if you don’t agree with the law to go about it. I have consulted with not just our district attorney, but others and he has also consulted with others. We are confident that the law as of today could change.”

Toenjes was indirectly referring to other challenges to the state Legislature’s bans on mask and vaccine mandates that were among a number of measures that GOP lawmakers shoved into the budget bill in the session’s waning hours.

Another lawsuit has called that effort unconstitutional and claims they were not given proper hearings and bypassed other required legislative processes needed to make law in Arizona.

For almost the rest of this month, however, eyes will be on Ducey’s threat to withhold $5.2 million from Kyrene and $2.8 million from Tempe Union in  Education Plus Up Grant money.

Ducey had given districts with mandates until Aug. 27 to drop them or risk losing their Education Plus Up grants.

His office made no announcements after his deadline passed.

Ducey is using $163 million of $350 million in federal pandemic relief funds for grants to ensure that school districts that did not receive other supplemental funds received up to $1,800 per pupil to make up for a loss of revenue caused by disruptions that impacted other revenue.

Those funds became an issue in the wake of Maricopa County Judge Randall Warner’s Aug. 16 ruling that the state law banning mask mandates by schools or other governmental entities does not take effect until Sept. 29.

Within hours of that ruling, Kyrene and Tempe Union administration reimposed mask mandates. Superintendents in both districts have been given authority by their boards months ago to enact any measures they saw fit to mitigate the spread of COVID-19.

Other districts in Arizona have followed suit, though those that neighbor Tempe Union and Kyrene have either declined formally to make masks mandatory or simply have ignored the opportunity that Warner’s decision gave them.

Tempe Union and Kyrene took the action, citing the surge in COVID-19 cases that has left both districts at the highest level of virus transmission.

However, data released by the county last week showed that while both district’s transmission levels remain at highs not seen in several months, they appear not to have gotten any worse. Cases per 100,000 were at 305 for the second consecutive week and positive new test results were at just over 10 percent.

Kyrene’s dashboard showed the number of active cases among students fell from 100 to 75 while Tempe Union’s count of active cases fell to 42 of which 40 were students.

Those numbers for Kyrene, Toenjes said, show that the mask requirement is working and keeping COVID-19 at bay.

Despite Ducey’s contention that the mask mandate ban began July 1 – the retroactive date GOP lawmakers pushed through in the budget bill – Judge Randall Warner ruled, “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.

Moreover, the Biden administration has told Ducey that his efforts to use federal pandemic relief funds as a cudgel violated the law. U.S. Education Department officials suggested that if a parent files a complaint about his withholding of funds as punishment for a mask mandate. The department on Monday launched an investigation into five states' bans, but Arizona is not among them.

Toenjes said she, the district’s counsel and other districts’ lawyers have reviewed the terms of the grant and believes that a mask mandate does not violate any of them.

‘I feel very confident we are in compliance with the law,” she said, noting the grant requirement makes no mention of masks but does require recipients to have been offering in-person instruction as of Aug. 27. 

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