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States Sue to Stop DeVos Rule on Virus Aid for Private School Students

By Andrew Ujifusa — July 07, 2020 4 min read
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Several states have announced a legal challenge to overturn a recently published rule from U.S. Secretary of Education Betsy DeVos about how much federal coronavirus relief public school districts must set aside for private school students.

The suit has been filed by the state attorneys general for California and Michigan along with other three states and the District of Columbia. The suit seeks to have the courts declare DeVos’ rule unlawful and to prevent the U.S. Department of Education from enforcing the rule. The rule that’s the subject of the suit says districts that share CARES Act with all their schools, including those that didn’t get federal aid for low-income students in the last school year, must reserve money to provide certain services to all local private school students. The rule adds another option for districts, although it might be unpalatable for many local school leaders. (More on that in a bit.)

In remarks announcing the lawsuit Tuesday, the top legal officers for California and Michigan stressed that the Education Department’s rule takes resources away from needy students and improperly provides it to private school students, including those from affluent backgrounds.

In addition to California and Michigan, attorneys general for D.C., Maine, New Mexico, and Wisconsin also filed suit in the U.S. District of Court for the Northern District of California against DeVos and the Education Department.

“Secretary DeVos’ rule and guidance ignore the plain language of the CARES Act,” Michigan Attorney General Dana Nessel, a Democrat, said during a Tuesday press conference announcing the suit.

In a separate press conference, California Attorney General Xavier Becerra said that the rule issued by the Education Department earlier this month will “siphon CARES Act relief funds away from our K-12 public schools.”

“The Trump administration is undermining the rule of law” and defying Congress, Becerra said. Tens of millions of dollars are at stake for California, he said. “It’s not just sinful. It’s against the law. ... Ultimately, it’s a shakedown of public schools across the country,” Becerra also said.

‘A False Choice’ for the CARES Act

The lawsuit, which is not unexpected, deals with how the CARES (Coronavirus Aid, Relief, and Economic Security Act) Act handles equitable services.

In April, DeVos released nonbinding guidance that said school districts should reserve a portion of CARES Act funding to provide equitable services (like tutoring and technology licenses) to all private school students. But critics argued that the law only directed districts to provide equitable services to low-income students, which is the rule under the main federal K-12 law, the Every Student Succeeds Act.

To justify the guidance, the Education Department said that Congress intended the CARES Act to help all students regardless of what type of school they attend given the sweeping affects of the pandemic. Opponents charged DeVos with flouting the law in order to give indirect but potentially critical support for private schools during the pandemic. Dozens of private schools have shut down as the coronavirus has spread.

Officials for several states like Indiana and Maine indicated that they would not follow DeVos’ guidance, although other states indicated they would.

On July 1, the department published an interim final rule that gave districts two choices for equitable services. In one scenario, they could limit equitable services just for low-income private school students, but then they’d have to send CARES aid only to schools that got Title I aid for disadvantaged students in the last school year. In the other, they could provide equitable services to private school students in general, and then have the freedom to provide CARES relief to schools regardless of their Title I status.

Yet opponents to the guidance were unsatisfied with this revision, and budgetary restrictions attached to the first choice could discourage many districts from opting for it. Becerra said Tuesday the new rule represents “a false choice” and said Congress never intended for schools to have to go through such regulatory barriers to make decisions about equitable services. And Nessel said neither of these options “actually exist in the CARES Act.”

Here’s a key portion of the suit:

“The discrepancy between the plain language of the CARES Act and the Department’s inaccurate interpretations has led to widespread confusion for State Education Agencies (SEAs), LEAs, and private schools across the Nation. The Rule strips funds Congress specifically directed to public schools to support their response to the COVID-19 pandemic and requires that those funds be reallocated, including to affluent private schools, with consideration neither of the private schools’ needs or available resources nor the harms these reallocations cause to public schools.”

The Education Department has estimated that its interim final rule would affect roughly 6 to 8 percent of the $13 billion CARES aid for districts. Jim Blew, the department’s assistant secretary for planning, evaluation, and policy development, said during a conference call with reporters last month when the department shared the rule publicly that the department expected to be sued over it.

A report from Congress’ research arm published earlier this month said the evidence suggests that DeVos’ approach to equitable services does not match the law.

Read the lawsuit here:

Photo: U.S. Secretary of Education Betsy DeVos testifies before a Senate spending committee. --Susan Walsh/AP