PHOENIX — 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.
The speech comes hours after Cardona sent a letter to Ducey warning that the Arizona law and his decision to withhold COVID-19 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 in the letter. 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 staffers.
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.
Cardona did not specifically address Ducey's actions where he announced he is distributing $163 million in federal COVID relief dollars — but only to schools without mask mandates. The governor also said 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.
"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.
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.
critical of Ducey
Karamargin was also dismissive of Cardona's letter: "The last thing we need is a bureaucrat in Washington, D.C., telling Arizona parents what's best for them."
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.
The letter to Ducey comes the same day that U.S. Rep. Raúl Grijalva, D-Ariz., wrote to Cardona complaining that the governor is punishing schools that 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.''
Since July 20, Tucson schools have had 765 identified COVID-19 cases and 29 outbreaks, both numbers increasing exponentially by the day.
Tucson Unified, Amphitheater, Catalina Foothills and Flowing Wells school districts are all requiring universal masking indoors. Sunnyside and Tanque Verde school districts both have meetings this week to discuss whether to implement a mask mandate.
Grijalva said Ducey's financial incentives to schools that don't require masks is retribution against schools that defied him.
"It's like the schoolyard bully — he has to get his way," Grijalva said. "And if it requires intimidation, it's not beyond him. This was federal money, destined and earmarked for the safe opening of schools, for the safe functioning of schools, for children and educators in the schools, and he cannot discriminate based on politics. That is for all children."
U.S. Rep. Greg Stanton, D-Ariz., in a separate letter to Treasury Secretary Janet Yellen, said he is sure 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.
"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 after Ducey's announcement. That brings the number of school districts that are defying the governor to about two dozen.
Although Ducey says the grants are for district and charter schools that are “following all state laws and remaining open for in-person instruction,” Catalina Foothills School District argues it is eligible for the grants despite implementing a mask mandate because a judge ruled earlier this week that the legislative ban on mask mandates does not take effect until Sept. 29, so schools with mask mandates are not breaking the law, said spokeswoman Julie Farbarik.
As well, many local school districts aren’t eligible for the grants regardless of the mask issue because a school or district isn’t eligible if they received more than $1,800 in per-pupil funding from the federal relief packages.
Most of that funding was allocated based on the number of low-income students in a school or district, so most schools eligible for the governor’s grant would have fewer low-income students.
TUSD Superintendent Gabriel Trujillo said this “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.”
“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.
But some of Tucson’s school districts have argued that they did not receive adequate funding from the federal packages to cover all the expenses associated with COVID-19. Tanque Verde, Sahuarita, Marana and Catalina Foothills would all be eligible for this grant based on how much they received in relief funding.
On Twitter: @azcapmedia