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Ducey asks judge to side with him on denying COVID funds to schools with mask mandates

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Howard Fischer Capitol Media Services

PHOENIX — Gov. Doug Ducey is asking a federal judge to rule he is doing nothing legally wrong by denying federal COVID relief funds to schools with mask mandates and giving parents vouchers to remove their children from those schools.

The Republican governor said he is protecting children from possible social, emotional and mental health effects of having to wear a mask.

In new legal papers filed Friday in federal court, Ducey's legal adviser says there is nothing in federal law that requires him to spend money from the American Rescue Plan Act only in ways that the U.S. Treasury and Treasury Secretary Janet Yellen say conform with ways the Centers for Disease Prevention and Control say will fight the virus.

Instead, Yellen and the agency made the requirement by writing rules for the Coronavirus State and Local Fiscal Recovery Fund that exceed the agency's federal authority, argues Ducey's legal adviser, Anni Foster.

The Treasury is demanding that Ducey return the $173 million or it will withhold future federal aid.

"Treasury has no background expertise in public health," Foster told U.S. Magistrate John Boyle. She contends its rules, which Ducey is accused of violating, are based on the agency's "subjective and ill-informed opinion."

"Nothing in the underlying statute authorizes Treasury to condition the use of SLFRF monies on following measures that, in the view of Treasury, stop the spread of COVID-19," Foster wrote.

"If Congress had truly intended to give Treasury the power to dictate public health edicts to the states, and recoup or withhold SLFRF monies based on an alleged lack of compliance with such edicts, it would have spoken clearly on the matter," she continued. "It did not."

In filing suit, Ducey is seeking to bring the matter to a legal head on his own terms — and in a federal court in Arizona — rather than have to haggle with the Treasury in another legal forum over its efforts to take the money back.

Look for a legal fight.

"Treasury believes the rule is correct and allowed by the statute and Constitution,'' said agency spokeswoman Dayanara Ramirez.

At issue are two separate programs Ducey is financing with the money.

One is dividing up $163 million among school districts and charter schools that had received less than $1,800 per student under prior COVID relief programs. But he said only those schools that do not require the use of face coverings during instruction hours are eligible. And they must remain open for in-person instruction through the remainder of the school year.

Ducey set aside another $10 million in grants to parents whose schools continue to require masks.

Those funds, up to $7,000 per child, can be used for everything from online tutoring and child care 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.

Foster is not relying totally on her claim that the rules the Treasury enacted governing use of the money are unjustified and prohibited by federal law.

She also told Boyle that Ducey's use of the funds — and his focus on whether schools require masks — is consistent with Congress' intent to promote programs that address the negative economic impact of COVID-19. Those include programs focused on educational impacts of things like remote or hybrid learning that "disproportionately affected low-income and minority students," she said.

"The programs empower parents and students to exercise their freedom to make informed decisions regarding their health and educational needs," Foster said.

She said Ducey's restrictions are a legitimate use of the money.

"For parents who prioritize their child's social, emotional, and mental health needs and believe a mask mandate would adversely impact their child, the program offers these parents the freedom and funding to enroll their students in a different program absent a mask mandate," Foster said.

She dismissed any argument that the only way to stop the spread of COVID-19 is through masks, pointing out the state offers free testing for all residents.

Also, Foster said, Ducey isn't requiring schools to forbid students from wearing face coverings in order to get the money. "Schools have every ability to encourage practices recommended by the CDC and students were not prohibited from doing so," she wrote.

No date has been set for a hearing.

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