SSaying it protects children from the possible social, emotional and mental health effects of wearing a mask, Gov. Doug Ducey on Friday asked a federal judge to rule that he was doing nothing legally wrong by refusing federal COVID relief funds to schools with mask mandates and giving parents vouchers to remove their children from those schools.
The move continues to jeopardize $5.2 million in pandemic relief funds for the Kyrene School District and $2.8 million for Tempe Union.
In new legal documents filed in federal court in Phoenix, Anni Foster, the governor’s legal counsel, says nothing in federal law requires her to spend American Rescue Plan Act money only as dictated. by the US Treasury and Treasury Secretary Janet. Yellen based on what the Centers for Disease Prevention and Control say will fight the virus.
Instead, says Foster, Yellen and the agency effectively established rules for the Coronavirus State and Local Fiscal Recovery Fund that exceed the agency’s federal authority.
The Treasury is demanding that Ducey return the $173 million or suspend future federal aid to Arizona.
“The Treasury has no public health expertise,” Foster told U.S. Magistrate John Boyle, saying the rule Ducey is accused of breaking is based on the “subjective and ill-informed opinion” of the court. ‘agency.
Foster told Boyle that Yellen and the agency were abusing their powers to have him declare their actions illegal.
“Nothing in the underlying statute authorizes the Treasury to condition the use of SLFRF funds on the following actions that the Treasury believes stop the spread of COVID-19,” Foster wrote.
“If Congress really intended to give the Treasury the power to issue public health executive orders to the states and to recover or withhold SLFRF funds based on alleged disobedience of those executive orders, it would have spoken clearly on the matter,” she continued. . “He does not have.”
By filing a lawsuit, Ducey is seeking to take the case to court on his own terms rather than having to haggle with the Treasury in another legal forum about his efforts to recover the money.
Look for a legal fight.
“Treasury believes the rule is correct and authorized by law and the Constitution,” agency spokeswoman Dayanara Ramirez said.
In question, two distinct programs that Ducey finances with dollars.
One is to split $163 million among school districts and charter schools that had received less than $1,800 per student under previous COVID relief programs.
But the governor said only schools that do not require the use of face coverings during instructional hours are eligible. And they must remain open for in-person instruction for the rest of the school year.
Ducey also set aside an additional $10 million in grants for parents whose schools continue to require masks.
These funds, up to $7,000 per child, can be used for everything from online tutoring and childcare to tuition to attend private and parochial schools. Any family below 350% of the federal poverty level — about $92,750 a year for a family of four — is eligible.
It all culminated last year in a letter from the Treasury asking if it was in line with agency rules. And when he didn’t like Ducey’s response, he ordered him to rescind the policies or return the money.
Foster also told Boyle that Ducey’s use of the funds — and his focus on whether schools need masks — is consistent with Congress’s intent to promote programs that address economic impact. negative for COVID-19.
That, she said, includes programs that focus on the educational impacts of things like distance or blended learning that “disproportionately affect low-income and minority students.”
“The programs allow parents and students to exercise their freedom to make informed decisions about their health and education needs,” Foster said.
She said her boss’s restrictions on the use of the money fell squarely within the legitimate use of
“For parents who prioritize their child’s social, emotional and mental health needs and who believe a mask mandate would negatively impact their child, the program provides those parents with the freedom and funding to enroll their students to a different curriculum in the absence of a mask mandate,” says Foster.
She dismissed any argument that the only way to stop the spread of the virus is through masks, pointing out that the state offers free testing for all residents.
Either way, Foster said, nothing in Ducey’s conditions for schools to get money requires them to ban students from wearing face coverings.
“Schools have every capacity to encourage CDC-recommended practices and students have not been prohibited from doing so,” she wrote.
Foster acknowledged that Congress has the power to impose conditions on how states spend federal money. But Foster said it needed to be done “unambiguously” to allow states to decide whether to accept the money and the conditions attached to it.
In this case, however, she said there was nothing in the law authorizing the program that alerts states to the possibility that funds could be reversed based on the Centers for Disease Prevention and Control’s changing guidance on how to prevent the spread of COVID. .
Foster argues that even if Congress agreed to empower the Treasury to make rules about the use of funds, it was illegal for federal lawmakers to delegate that power to an agency.
No date has been set for a hearing.