PHOENIX -- Gov. Doug Ducey is financially penalizing schools that impose mask mandates while offering cash vouchers to parents whose students attend one of those schools.
The governor on Tuesday said he will divide up $163 million that the state got through the American Rescue Plan to boost per-pupil funding.
But the catch is that the dollars will be available to district and charter schools "following all state laws'' as of Aug. 27. And the governor contends that schools which are requiring students and staff to wear masks are not in compliance.
That conclusion comes just a day after a judge ruled that the statute approved by the legislature banning mask mandates is not now in effect. In fact, Maricopa County Superior Court Judge Randall Warner said it won't take effect until at least Sept. 29.
There are now more than a dozen districts that have adopted requirements for staff and students to wear masks while indoors.
But gubernatorial press aide C.J. Karamargin said that, as far as his boss is concerned, if schools want a share of that extra cash they had better rescind those mask policies a month earlier.
"These are discretionary funds,'' he said. "This is the date that we believe will give districts time to get into compliance with state law.''
And Karamargin brushed aside the court ruling that says districts that have mask mandates now are legally entitled to keep them until Sept. 29 without breaking the law, saying that's irrelevant with what the governor believes he has the power to do.
"The eligibility requirements of the grant are spelled out,'' he said.
"They need to be in compliance for these discretionary grant funds by Aug. 27,'' Karamargin said. "If they want to be eligible for the grants, they should do so by Aug. 27.''
It's not just that schools can't require masks to get their share of the cash.
Ducey's directive says those funds will be available only if a school remains open for in-person instruction. That is designed to deter school boards from shuttering schools if there is an outbreak of COVID-19.
The governor is using the same reasoning -- that these are federal dollars over which he alone has discretion -- to provide up to $7,000 to parents for vouchers to send their children to private or parochial schools. Ducey said the cash, which also can be used for online tutoring and child care, is to help families "facing financial and educational barriers due to overbearing school mandates.''
And here, too, Karamargin rejected the idea that the governor has no power to unilaterally expand who is eligible for what are formally known as "empowerment scholarship accounts.''
"Do you have some indication he doesn't have the authority?'' he responded. And Karamargin said that Ducey needs no legislative permission given these aren't state dollars subject to appropriation.
"These are American Rescue Act funds,'' he said. "They are funds made available to Arizona for the governor to use as he sees fit.''
But Chris Kotterman, attorney for the Arizona School Boards Association, said those federal dollars are intended for COVID relief. And Kotterman said using that cash for vouchers and to penalize schools that have mask requirements is doubtful -- particularly when eligibility is conditioned on schools actually ignoring the health advice being provided by both the Department of Health Services and the federal Centers for Disease Prevention and Control about how to prevent the spread of the disease.
"So, basically he's saying 'If you're doing these things that are recommended to prevent the spread of COVID and your kid's going to that school, here's $7,000 of federal COVID-relief money to send your kid to a place where that's not happening,' '' Kotterman said.
In his prepared statement, the governor said this will provide choice for parents who are facing barriers due to unnecessary school closures and mask mandates that do not comply with state laws.
"Our COVID-19 Educational Recovery Benefit will empower parents to exercise their choice when it comes to their child's education and COVID-19 mitigation strategies,'' Ducey said.
Eligibility is limited to parents who can demonstrate that their child is isolating quarantining, or subjecting children to physical constraints ``such as requiring the use of masks or providing preferential treatment to vaccinated students.'' All that, the governor said, runs afoul of what the Republican-controlled legislature approved earlier this year.
There is a financial needs component of sorts, with eligibility limited to households at or below 350% of the federal poverty level. But that is the equivalent of $92,750 a year for a family of four.
The move caught members of Save Our Schools by surprise. This is the group that got voters in 2018 to vote, by a 2-1 margin, to overturn a voucher expansion program approved by lawmakers and signed by the governor.
Sharon J. Kirsch, the group's director of research, pointed out that the decision comes even as the number of cases of COVID is increasing, including in schools, complicated by the now more-transmissible Delta variant.
"It's just utterly beyond me that he wouldn't be doing everything he can to protect kids,'' she said. "And yet he's using this as an excuse, again, to expand vouchers.''
But Kirsch said any decision on whether to legally challenge the governor's action is premature.
Joe Thomas, president of the Arizona Education Association, called the moves "surprising and disappointing.''
"The governor never wastes an opportunity to spend more money on private school vouchers and seemingly take it away from public schools,'' he said. And Thomas said the moves "incentivize putting students in danger.''
He said, though, that an existing lawsuit may undermine at least part of what Ducey is trying to do.
Thomas pointed out there is litigation challenging HB 2898. That's the 231-page ``K-12 budget reconciliation bill'' that contains various changes in laws governing public education -- including a ban on mask mandates.
Challengers contend that runs afoul of constitutional requirements that all measures deal with only one subject and that the title of any bill reflect what changes it makes. If a judge agrees, Thomas said, the portion of that law banning mask requirements would be voided -- and schools that keep the requirement could no longer be in danger of being found in violation.
Ducey's voucher plan is a variant on a decision earlier this month by the Florida Board of Education to give vouchers to parents who contend that mask requirements in public schools amounts to harassment of their children. That came after Gov. Ron DeSantis, a Republican like Ducey, ordered that agency to come up with ways to pressure school districts against creating mask mandates and punish them if they do.