By Howard Fischer
Twitter: @azcapmedia

PHOENIX — Gov. Doug Ducey is preparing to fight threats by the Biden administration to strip Arizona of $163 million in federal COVID-relief dollars for public education.

The governor said Friday that Anni Foster, his legal counsel, is crafting a letter to the U.S. Treasury responding to its claims earlier this month that Ducey is using the money in illegal ways by giving it only to schools that do not require students and staff to wear masks. Deputy Treasury Secretary Adewale Adeyemo said that runs afoul of legal requirements to use those dollars to finance “evidence-based efforts to stop the spread of COVID-19.”

He said Ducey also is misspending the cash by giving out $7,000 vouchers — formally known as “empowerment scholarship accounts” — to parents who want to pull their kids out of schools with masks mandates and instead send them to private and parochial schools without such a requirement.

Adeyemo gave the governor until the middle of next week to respond explaining how the state will “remediate the issues.” More to the point, he said that if the state doesn’t fix the problem his agency can demand the money back.

Ducey, for his part, said Friday he’s doing nothing wrong.

“It’s going to schools that follow the law,” he said. That refers to a state law, approved by the Republican-controlled legislature earlier this year, which forbids schools from imposing mask mandates.

Only thing is, that law did not take effect as scheduled on Sept. 29. That’s because a trial judge voided it after concluding that it — along with various other statutes — were illegally enacted as part of the state budget.

The governor conceded the point.

“It’s going through the courts,” he said, with a hearing set for Nov. 2 before the Arizona Supreme Court.

But even assuming the justices allow the state law to be enforced, none of that affects the strings the federal government put on the money — and what Adeyemo says is the requirement of Arizona to comply or forfeit the cash.

At issue is Arizona’s share of a $350 billion program in state and local relief dollars to deal with COVID.

Adeyemo said the dollars are designed to “mitigate the fiscal effects stemming from the COVID-19 public health emergency.” And that, he said, includes supporting efforts to actually stop the spread of the virus.

What the governor has done, Adeyemo said, is discourage schools from following health protocols designed to contain the virus. He said that is “not a permissible use” of the federal cash.

Ducey on Friday took a swat at the Biden administration for making this an issue.

“The federal administration seems to continue to want to focus on masks,” he said. “We’re going to continue to focus on catching our kids up.”

But the governor sidestepped a question of how providing financial incentives to schools so they do not require masks actually meets the goal of helping to stop the spread of COVID.

“What we’re doing is we’re incenting parents to get their children in a classroom where they can learn,” Ducey said. “And we’re giving them a choice.”

And how does that help contain the virus?

“That’s what we’re focused on,” he snapped. “We’re catching our kids up.”

In his letter to Ducey, however, Adeyemo said that’s not the way the federal law reads. He said the state cannot impose conditions on receipt of these dollars to get schools to act in ways “that would undermine efforts to stop the spread of COVID-19 or discourage compliance with evidence-based solutions for stopping the spread.”

But Ducey on Friday refused to say how he intends to try to tell Adeyemo that his use of the dollars complies with federal law.

“You’ll see the letter,” Ducey said.

The feds, however, may have the upper hand.
In writing to the governor, Adeyemo reminded him that, prior to receiving nearly $2.1 billion of COVID-relief funds, he signed a certification that Arizona would use all the dollars it received in compliance with the federal law and any regulations issued by the Department of the Treasury. And he said those limit use of the dollars to responding to the public health emergency and its negative economic impacts.

All that, Adeyemo said, limits Ducey’s discretion on how to divide up the cash.

The spat with the Treasury may not be the only problem for Arizona and the efforts of Ducey and Republican lawmakers to keep schools from requiring masks.

The U.S. Department of Education already has launched civil rights investigations into six Republican states that have laws on the books forbidding schools from imposing mask mandates, saying that may violate the rights of students with disabilities. The agency said it has been watching other states, including Arizona, what with the state law here on hold pending Supreme Court action.