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

Summary

This August 18, 2021 letter from the Secretary of Education is addressed to Governor Spencer Cox and State Superintendent Sydnee Dickson of Utah. It states that Utah's actions to block school districts from voluntarily adopting strategies aligned with Centers for Disease Control and Prevention guidance put the goal of a safe return to in-person instruction at risk. It says a Utah State law prohibiting local educational agencies from adopting requirements for the universal wearing of masks appears to restrict local health and safety policies. The letter states that it is within an LEA's discretion to use ARP ESSER funds for indoor masking policies, and that the Department will closely review and monitor whether Utah is meeting all of its Federal fiscal requirements.

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Full text

                                                 THE SECRETARY OF EDUCATION
                                                       WASHINGTON, DC 20202




                                                       August 18, 2021


The Honorable Spencer Cox                              The Honorable Sydnee Dickson
Governor                                               State Superintendent of Public Instruction
State Capitol                                          Utah State Office of Education
Suite 200                                              250 East 500 South, P.O. Box 144200
Salt Lake City, UT 84114                               Salt Lake City, UT 84114

Dear Governor Cox and Superintendent Dickson:

        As the new school year begins in school districts across Utah, 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. Utah’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 Utah has enacted a State law prohibiting local educational agencies
(LEAs) 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 Utah’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 stands with the dedicated educators who are working to safely reopen
schools and maintain safe in-person instruction.


1
    See: https://le.utah.gov/~2021S1/bills/static/HB1007.html.
        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 Utah 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 Utah 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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