Dear Governor Ducey and Superintendent Hoffman — Safe Return to In-Person Instruction (August 18, 2021)

Summary

A letter dated August 18, 2021 from the Secretary of Education to The Honorable Doug Ducey, Governor, and The Honorable Kathy Hoffman, State Superintendent of Public Instruction, in Arizona. The letter states that Arizona's actions to block school districts from voluntarily adopting science-based strategies for preventing the spread of COVID-19 put the safe return to in-person instruction at risk. It says the Department's interim final requirements call for each LEA receiving ARP ESSER funds to adopt a plan for the safe return to in-person instruction, and that using ARP ESSER funds for indoor masking policies is within an LEA's discretion. It adds that the Department will continue to closely review and monitor whether Arizona is meeting the Federal fiscal requirements.

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                                               THE SECRETARY OF EDUCATION
                                                     WASHINGTON, DC 20202




                                                     August 18, 2021


The Honorable Doug Ducey                             The Honorable Kathy Hoffman
Governor                                             State Superintendent of Public Instruction
State Capitol                                        Arizona Department of Education
1700 West Washington St.                             1535 West Jefferson St.
Phoenix, AZ 85007                                    Phoenix, AZ 85007

Dear Governor Ducey and Superintendent Hoffman:

        As the new school year begins in school districts across Arizona, it is our shared priority
that students return to in-person instruction safely. The safe return to in-person instruction
requires that school districts be able to protect the health and safety of students and educators,
and that families have confidence that their schools are doing everything possible to keep
students healthy. 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 (CDC) puts these goals at
risk and may infringe upon 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.

         We are aware that Arizona has enacted a State law prohibiting local educational agencies
(LEAs), among other local government entities, from adopting requirements for the universal
wearing of masks. 1 This State level action against science-based strategies for preventing the
spread of COVID-19 appears to restrict the development of local health and safety policies and is
at odds with the school district planning process embodied in the U.S. Department of
Education’s (Department’s) interim final requirements. As you know, the American Rescue Plan
Act of 2021 (ARP Act) requires each LEA that receives Elementary and Secondary School
Emergency Relief (ARP ESSER) funds to adopt a plan for the safe return to in-person instruction
and continuity of services. (See section 2001(i).) The Department’s interim final requirements
clarify that such plan “must describe…how [the LEA] will maintain the health and safety of
students, educators, and other staff and the extent to which it has adopted policies, and a
description of any such policies, on each of the following safety recommendations established by
the CDC…” The safety recommendations include “universal and correct wearing of masks.”

         The Department is concerned that Arizona’s actions could limit each LEA’s ability under
the ARP Act to adopt a plan for the safe return to in-person instruction and continuity of services
that the LEA determines adequately protects students and educators by following CDC guidance.
The Department recognizes that several LEAs in your State have already moved to adopt
such policies in line with guidance from the CDC for the reopening and operation of school
facilities despite the State-level prohibitions. The Department stands with these dedicated
1
    See: https://www.azleg.gov/legtext/55leg/1R/bills/HB2898S.pdf.
educators who are working to safely reopen schools and maintain safe in-person
instruction.

        The Department also emphasizes that it is within an LEA’s discretion to use ARP ESSER
funds for implementing indoor masking policies or other policies aligned with CDC guidance.
Section 2001(e)(2)(Q) of the ARP Act explicitly gives LEAs the authority to use ARP ESSER
funds (as well as ESSER funds granted through prior relief funding) for “developing strategies
and implementing public health protocols including, to the greatest extent practicable, policies in
line with guidance from the Centers for Disease Control and Prevention for the reopening and
operation of school facilities to effectively maintain the health and safety of students, educators,
and other staff.”

        We are eager to partner with Arizona on any efforts to further our shared goals of
protecting the health and safety of students and educators. In addition, the Department will
continue to closely review and monitor whether Arizona is meeting all of its Federal fiscal
requirements. It’s critical that we do everything in our power to provide a safe environment for
our students and staff to thrive.


                                                     Sincerely,



                                                     Miguel A. Cardona, Ed.D.


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