By Howard Fischer
Capitol Media Services
PHOENIX -- Two school districts are telling the governor that he's legally off base in demanding they scrap their quarantine policies.
In a letter to Kaitlin Harrier, the governor's education policy advisor, attorneys from the Catalina Foothills School District and the Peoria Unified School District say the schools are within their legal rights to keep unvaccinated students who have been exposed to confirmed cases of COVID-19 out of school for up to two weeks.
They said the move is "the appropriate course of action except for students who can demonstrate that they have been fully vaccinated.''
More to the point, John Richardson and Denise Lowell-Britt say that Doug Ducey and his advisers are misreading a new law limiting what schools can and cannot do in cases of the virus.
"Our clients are not acting unlawfully,'' they wrote.
They are not alone in that conclusion.
Pima County Administrator Chuck Huckelberry, after consulting with Dr. Francisco Garcia, the county's chief medical officer, is telling local districts that the county has "independent statutory authority'' to enact quarantine recommendations that schools can adopt. He also called the governor's claim that districts cannot impose those policies "a serious stretch of the imagination (that) endangers public health,'' particularly when there is no approved vaccine for children younger than 12.
And Chris Kotterman, lobbyist for the Arizona School Boards Association, pointed out that what the governor is telling schools to do is directly contrary to the policies of his own health department. It specifically says that unvaccinated students who have been exposed should be quarantined.
Agency spokesman Steve Elliott said Monday he is aware of both his department policy as well as the governor's directive but had no other comment.
Catalina Foothills is not backing down.
"The statute is plain and we are in full compliance with it,'' district spokeswoman Julie Farbarik said Monday, saying the policy follows the guidance given to schools not just by the county health department but also the state Department of Health Services and the federal Centers for Disease Control and Prevention.
"It remains unchanged,'' she said.
Meanwhile other school districts are weighing the similar policies.
For example, both the Tempe Union and Kyrene Elementary school districts have said they will implement quarantine policies if necessary.
There's no sign, however, the governor intends to back down.
"We expect Arizona's public schools to comply with state law and we're not going to allow anyone to deny Arizona kids and education,'' gubernatorial spokesman C.J. Karamargin said Monday. And he said that Ducey's position remains the same despite the conflicting policy of his own health department.
And what of schools that refuse to conform to his directive?
"We'll see,'' said Karamargin.
The issue starts with exactly what the law says -- and means.
The language, inserted by Republicans into a budget bill, says that schools "may not require the use of face coverings by students or staff during school hours and on school property.'' A separate provision says that schools cannot require students or teachers to be vaccinated for COVID-19 or wear a face covering to participate in in-person instruction.''
No problem here, said the lawyers for the two districts, saying their policies require none of that.
"Nothing in (the law) restricts a school district from following guidance provided by federal, state and local public health authorities with regard to students who have been exposed to COVID-19,'' they wrote.
"These authorities uniformly provide that a temporary quarantine is the appropriate course of action except for students who can demonstrate that they have been fully vaccinated,'' they continued. "It would not be appropriate or reasonable for school districts to ignore these public health standards, and (the law) does not mandate that they do so.''
Karamargin said the statute is specific to schools and the general public health guidelines are irrelevant.
"It takes into account that school is the safest place for kids, whether they are vaccinated or not, and that they have a right to receive in-person education,'' he said. And Karamargin said that quarantine, as a "mitigation strategy'' falls within the law.
"This law prohibits discrimination based on vaccination status,'' he said. "The use of any mitigation strategy should comply with the law.''
The lawyers for the districts also rejected suggestions that the policies do not run afoul of the Parents' Bill of Rights provision of Arizona law.
It declares that parents have a "fundamental right'' to direct the upbringing, education, health care and mental health of their children. And it bars any governmental entity from infringing on those rights without demonstrating that there is a "compelling governmental interest,'' that it is narrowly tailored and cannot be accomplished by less-restrictive means.
"While parents in Arizona are empowered to decide whether and when their children attend public school, they are not permitted to decide which of the school's otherwise lawful healthy and safety policies their children will follow once the decision to attend public school has been made,'' the attorneys said.
And they said that students who are quarantined are not abandoned.
"Both school districts provide instruction and assistance to such students during their temporary absence from school,'' they wrote.