Arizona congressmen ask for review of Ducey's decision to withhold federal funds in school mask fight

PHOENIX – Wednesday, President Biden directed the nation's top education official to take action "against governors that are trying to block and intimidate local school officials and educators" by prohibiting them from requiring the use of masks.

The direction to Education Secretary Miguel Cardona comes on the heels of an expanding number of states, including Arizona, making mask mandates illegal despite the recommendations of the Centers for Disease Prevention and Control. And it comes just a day after Gov. Doug Ducey moved to financially penalize school districts that impose such a requirement.

Biden said he expects Cardona to use "all of his oversight authority and legal action, if appropriate” to bring errant states into line.

"We're not going to sit by as governors try to block and intimidate educators who protect our children,” the president said in an announcement from the White House. And Biden charged that some politicians are seeking to turn measures to protect public safety into "political disputes for their own political gain.”

The speech comes just hours after Cardona sent a letter to Ducey warning that the Arizona law and his decision to withhold COVID relief dollars from schools that impose mask requirements may violate federal law. And Cardona also warned he may take action against the state.

In his letter, obtained by Capitol Media Services, the education secretary 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. The education secretary also said the policies and laws barring school districts from requiring those on campus to wear masks may conflict with 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 warning 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 enlarging the scope of what fits under those rules of how schools must act to protect the civil rights of students and teachers.

"We're expanding that to violations of safety,” Vanessa Harmoush a spokeswoman for the agency, told Capitol Media Services.

"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 legal action to forbid the state from enforcing the newly approved law 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.”

Biden, in his announcement, said he shares that goal.

"As I've said before, if you aren't going to fight COVID-19, at least get out of the way of everyone else who's trying,” the president said.

Neither the president nor Cardona specifically addressed 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 the education secretary strongly suggested that is not what is the intended use of the American Rescue Plan Act dollars.

Cardona said districts that get the funds are to “adopt a plan for the safe return to in-person instruction and continuity of services.”

“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 CDC may infringe on a school district's authority to adopt policies to protect students and educators as they develop their safe return to in-person instruction plans required by federal law,” he said.

Those guidelines, issued in the wake of the spread of the Delta variant, recommend "universal indoor masking for all teachers, staff, students and visitors to K-12 schools, regardless of vaccination status.'' And the CDC says children should return to full-time, in-person instruction "with layered prevention strategies in place.''

Ducey brushed aside the president's comments.

“What is it about families they don't trust?” asked press aide C.J. Karamargin.

The governor has repeatedly emphasized that nothing in state law or any of his directives prevents parents from putting masks on their children. But that could still leave them at least partially exposed to the potential of being infected by unmasked students and adults who may be contagious.

Karamargin was similarly dismissive of Cardona's letter and any criticism of the law banning mask mandates that the governor signed and is trying now to enforce.

“The last thing we need is a bureaucrat in Washington, D.C. telling Arizona parents what's best for them,” he said.

Nor does the governor believe he is breaking any law by denying a share of those COVID relief dollars to schools that require faculty and students to wear marks.

"We are confident the program used to distribute these funds aligns with federal guidance,” Karamargin said.

The president's address and the letter to Ducey comes the same day that Congressman Raul Grijalva wrote to Cardona complaining that the governor is punishing schools that actually follow CDC guidelines.

"Gov. Ducey is yet again pursuing reckless and inhumane proposals that will continue to exacerbate this public health crisis,” Grijalva wrote. "In addition, it puts into question the legality around him restricting public health mitigation measures in the first place.”

It isn't just the Department of Education that may be taking a closer look at the governor's actions.

Rep. Greg Stanton, in a separate letter to Treasury Secretary Janet Yellen, said he is sure that Ducey is acting illegally.

"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,”  he wrote. "These funds are not intended to be used for policies that undercut scientific research to pursue purely partisan ideological priorities.”

And Stanton wants action from Yellen, whose agency is responsible for disbursing the federal dollars.

"I urge the Treasury Department to make clear to the governor that if he follows through with this reckless proposal, he risks losing these funds for Arizona,” he said.

Whether the governor's threat to lock schools with mask policies out of the additional aid will have any effect on districts with mask mandates remains unclear.

But the governing boards of at least two districts, Flowing Wells and Scottsdale unified, approved their own masking requirement Tuesday night, after Ducey's announcement. That brings to two dozen the number of school districts that, for the moment, are openly defying the governor.

In a prepared statement, Sen. Mark Kelly said Ducey's orders “fly in the face of public health guidance and the intended use of these relief funds: to help ensure that all Arizona children, regardless of where they live or what school they attend, can stay healthy while getting a good education.”

And Sen. Kyrsten 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?”