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Backlash Grows to DeVos Push for COVID-19 Aid to Help All Private School Students

By Andrew Ujifusa — May 08, 2020 7 min read
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U.S. Department of Education guidance telling school districts to direct much more coronavirus aid than they expected to private school students has triggered intense opposition. And a potential legal fight over the guidance could take much longer to sort out than the pandemic itself—though it’s a fight school administrators feel they could win in a few ways.

The Education Department’s basic position is that districts must use money under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to provide “equitable services” for all local private school students. Yet groups representing public schools say CARES money should follow what the Every Student Succeeds Act says and be set aside to provide services only for certain disadvantaged and at-risk students, like technology licenses and parent engagement. The difference is worth tens if not hundreds of millions of dollars to public school districts.

On Thursday, Pennsylvania Secretary of Education Pedro Rivera told Assistant Secretary for Elementary and Secondary Education Frank Brogan that his agency estimated the guidance would double the funding districts normally set aside for at-risk students under federal law. The state also calculated that the guidance, if adhered to, would lead to a 53 percent increase in benefits for “more advantaged students” at the expense of the “most disadvantaged students” in the Philadelphia school district. In a different suburban district, Rivera said this increase would be 4,634 percent.

“These outcomes, observed in districts and communities of every type, are clearly inequitable,” Rivera said in his letter to Brogan. He urged the department to “clarify” the guidance by letting districts set aside a much smaller share of the money.

That plea followed a Wednesday declaration from the American Federation of Teachers and AASA, the School Administrators Association, that districts should ignore the guidance. On Tuesday, those two and five other groups urged DeVos to revise it. And separately, the national group that represents chief state school officers also told DeVos on Tuesday that she should rethink her guidance.

This new guidance for equitable services isn’t the law, and it’s not a set of regulations. It’s the Education Department’s interpretation of the CARES Act, and it was issued just over a month after the CARES Act became law without inviting public comment first. That means although it was issued under emergency circumstances, the guidance doesn’t appear to follow the set of best practices laid out by the Trump administration last year.

So what happens if districts ignore it?

‘Bet on the District Every Time’

There’s an established complaint process private schools could use involving a state-level ombudsman, if they feel districts are shorting them on coronavirus aid. Districts or private schools could appeal an ombudsman’s decision to U.S. Secretary of Education Betsy DeVos, who you’d expect to uphold the guidance. However, the dispute could then wind up in front of an administrative law judge for the Education Department, and then the federal courts. That’s the path taken by the case Zuni Public School District No. 89 v. U.S. Department of Education that was decided by the U.S. Supreme Court in 2007.

The Zuni case, a dispute involving federal aid but not guidance, got an initial ruling in a federal court in 2004, after an appeal of decisions by an administrative law judge and the education secretary. It took another three years to get a Supreme Court ruling. It’s easy to imagine any similar dispute over this guidance also taking many years to resolve, perhaps after the Trump administration has left the stage.

On the merits, attorneys for school administrators feel this is nonbinding guidance and does not carry the weight of law, and that districts are within their rights to dig in, refuse to follow it, and see what the Education Department does.

Districts could also drag out the process of allocating money for the services, although that could also lead to a different kind of contentious legal argument.

“I’d bet on the district every time” if a dispute over the guidance reached the courts, said Cheryl Sattler, a partner at the Ethica education services firm in Florida that works with 15 districts on federal programs. Unless they hear otherwise from their state education departments, districts should act as if “this guidance does not exist,” Sattler said, in part because of what Congress did and didn’t say when it passed the law: “Nobody is on the Senate floor saying: We’ve got to save the private schools.”

It’s pretty unusual, she added, for districts to be found in violation of equitable services requirements under the Every Student Succeeds Act and ultimately be forced to allocate more money for those services.

Private schools could also sue over the issue in federal court, although since there’s an administrative avenue available, it’s not clear how far that would get.

Separately, auditors could look at districts’ books and make administrators sweat over not following the guidance (and sweat in general). However, in that case, state education departments could end up deciding whether to act on any audit report. So the consequences could vary by state. And DeVos could theoretically direct the inspector general to look at districts with respect to the guidance, although again, that’s a process that could take a very long time.

Last year, a judge rejected a challenge to 2017 Education Department guidance about sexual harassment and assault; however, in that case the judge explained that the guidance at that time wasn’t final and therefore not subject to judicial review.

We reached out to the department about what actions it would take if districts ignored the guidance; we’ll update this post if we hear back.

We asked the Council of Chief State School Officers, which asked DeVos to “clarify” (by essentially revising) the guidance very after it was issued, if it was advising districts to ignore it. In a statement, CCSSO Executive Director Carissa Moffat Miller responded that the organization was continuing to discuss the guidance with the department, and added, “We are working closely with states as they coordinate with district leaders to ensure that CARES funds are allocated equitably.”

Michael Schuttloffel, the executive director of the Council for American Private Education, said his group would encourage private schools to seek relief from state ombudsmen if districts blew off the guidance; he added that believed the feds “would have ways of responding to a refusal to comply.” He did not raise the idea of private schools filing lawsuits outside this administrative process.

Schuttloffel added that hypocrisy is at work here. Some of the same people pushing for districts not to comply with the guidance would issue “howls of protest” if schools didn’t follow guidance on another topic, he said, adding, “Guidance is different than law, but it is also not just a friendly suggestion that parties can take or leave.”

Congress and Cost Benefits

Could DeVos try to penalize districts in some way by seeking to reclaim CARES aid or withhold future education aid like Title I money?

Aside from triggering another possible legal fight, that would mean public school students are ultimately bearing the punishment being meted out by the Education Department. To David DeSchryver, a senior vice president of Whiteboard Advisors, that doesn’t make a lot of sense.

“The ability of the federal government to create a repayment or a liability, outside of some paperwork, is very difficult here,” DeSchryver said. “They don’t have the leverage.”

Like Sattler, DeSchryver said he thinks districts would ultimately have the edge in any legal dispute.

It’s quite possible that members of Congress, after observing the intense opposition from state and local education leaders to the guidance, will step in and clarify how the CARES Act aid is supposed to work, said Jamie Fasteau, a one-time staffer for former House education committee Chairman George Miller and now a principal at EducationCounsel, a legal firm.

In the meantime, she said, there’s a potential “game of chicken” where all parties involved will have to think about how much they want a courtroom and administrative brawl over something Democratic White House hopeful Joe Biden could revoke next year if he wins the presidency.

“Anyone who wants to take that path has to decide whether it’s worth it,” Fasteau said.

This post has been updated to clarify comments about how often districts are forced to set aside more money for equitable services after being found not in compliance with ESSA.

Photo: U.S. Secretary of Education Betsy DeVos on Capitol Hill earlier this year. -- Tom Williams/CQ Roll Call via AP Images

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