UPDATED

U.S. Secretary of Education Betsy DeVos is backing off somewhat from her controversial push for school districts to make coronavirus relief available to all local private school students, following a salvo of criticism from education officials and groups.

The new interim final rule, released Thursday by the U.S. Department of Education, gives school districts choices for how they distribute K-12 aid money from Congress. And ultimately, the rule would give districts the option to set aside the aid for a subset of private school students like they typically do, instead of the broader population of those students, as DeVos had previously sought.

At issue is equitable services under the CARES Act. Typically, these services—like tutoring and technology licenses—are provided by school districts to benefit certain disadvantaged students in local private schools. However, after President Donald Trump signed the CARES Act into law, DeVos issued nonbinding guidance in April that districts should reserve relief money on equitable services for all local private school students.

The move caused an uproar. Many education officials said this would improperly divert critical aid from public schools to wealthy private school students. And congressional Democrats accused DeVos of “robbing public schools.” But DeVos and private school advocates justified the guidance by saying CARES money, including for equitable services, is meant to benefit all students regardless of what school they attend.

Here’s what DeVos’ new interim final rule says:

• A district can decide to distribute the CARES money only to schools that received Title I for the 2019-20 school year —essentially, those schools with a minimum share of students from low-income backgrounds.

• If districts choose to distribute aid only to Title I schools, they can use two options to calculate how much money they set aside for equitable services: They can use the same amount for equitable services they set aside for the 2019-20 school year; or they can conduct a count of low-income students in local private schools to determine the proportional share.

• If a district distributes aid only to Title I schools, it can’t use the CARES money to backfill cuts at the state and local level by moving other funding out of those schools into other schools. That could create a very big incentive for districts not to spend CARES money only on Title I schools, given the huge budget cuts many districts are facing.

• But if a district distributes CARES aid to schools that didn’t receive Title I in 2019-20, then it must calculate the amount it must set aide for equitable services using a count of all local students enrolled in private schools in the district.

This interim final rule will go into effect immediately and has the full force of law, although there’s still a process for the public to provide comment for 30 days. However, there could be legal action in response to it. The Education Department estimated that the interim final rule could affect at most between 6 and 8 percent of the roughly $13 billion in aid for school districts under the CARES (Coronavirus Aid, Relief, and Economic Security) Act.

The shift by DeVos represents a qualified victory for public school officials and advocates and a corresponding setback for private school advocates. But it could also force some school districts into difficult decisions about how to allocate money among schools. And it could complicate district-based responses to the coronavirus that aren’t necessarily tailored to individual schools.

So how many schools received Title I recently? (Generally speaking, a school is at least eligible for Title I if 35 percent of children or more come from low-income backgrounds.) Out of about 98,800 schools that reported Title I information for the 2017-18 school year—a year before fiscal 2019 began—approximately 59,600 schools—or 60 percent—reported receiving Title I money to operate either targeted or schoolwide programs, according to the National Center for Education Statistics.

“If you’re a school district that only wants to serve your low-income students, we respect that,” said Jim Blew, the assistant secretary for the office of planning, evaluation, and policy development, in a conference call with reporters. He said the choice for school districts is: “Are we only going to serve our low-income students, or are we going to serve all our students?”

Blew added, however, that he expected there to be a lawsuit and a request for a preliminary injunction to put a halt to the rule, and that Congress might amend the CARES Act language to negate the rule.

“There’s nothing in the law Congress passed that would allow districts to discriminate against students and teachers based on private school placement and employment,” DeVos said on the call.

States must distribute CARES money to districts based on the number of children counted for their regular federal Title I funding, which typically is earmarked for disadvantaged students. However, CARES aid is not bound by the same requirements as Title I and can be used for a huge array of purposes, from cleaning schools to mental-health support for students.

Some states had previously instructed their school districts to abide by DeVos’ April guidance. But the American Federation of Teachers and AASA, the School Superintendents Association, told districts they should ignore it.

But the options the department is giving districts may not calm the waters. In a Thursday statement, Dan Domenech, the executive director of AASA, said his group was “deeply disappointed” in what DeVos released because it would not lead to an equitable distribution of CARES money.

“The policy priorities of the Secretary represent an opportunistic money grab, using the pandemic environment to advance the privatization agenda,” Domenech said.

Decisions About Equity

The interim final rule could in theory make life easier for districts where all the schools received Title I in 2019-20, since they could treat equitable services like they always have.

But districts with some schools that didn’t get Title I in 2019-20 would have to weigh whether they want to help all their schools, and then set aside more money for private school students as a consequence, or only use CARES aid to benefit their schools with relatively large shares of poor students and reserve less money for students in private schools.

Julia Martin, legislative director at Brustein and Manasevit, an education legal and consulting firm, said that the interim final rule strikes a certain balance, but for many districts it may not represent a real choice. It recognizes that local districts have significant control over how CARES money is spent, and that schools can focus on student needs and not just “equality of access,” she said. At the same time, she noted, it allows the Education Department to save face by codifying its own equity argument that “if funds go to all public schools, it is more fair to provide them to all private schools too.”

However, she added, the rule’s proviso that districts sending CARES aid only to Title I schools can’t use the money to make up for state and local budget cuts makes that option significantly less attractive. “That change could hamstring some [districts] where state funding decisions have already been made,” she said.

Neal McCluskey, the director of the Center for Educational Freedom at the libertarian Cato Institute, indicated that the rule “might be a fair solution” because it requires districts’ decisions about which public schools receive the aid to be reflected in which local private school students benefit from it.

Last month, Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee, said he differed with the education secretary about her interpretation of equitable services, but did not say he’d push for Congress to nullify her guidance. DeVos then told state officials in an unusual letter that she would issue a proposed rule to “clarify” the issue.

Equitable services are provided to students and don’t provide money directly to private schools. But at a time when pandemic-driven private school closures are rising, outside dollars for their students could help private schools preserve resources for critical needs. Private school advocates backed DeVos’ April guidance and also say that if private schools can stay open, it helps public schools as well.

While some states previously said their districts would follow DeVos’ April guidance on the topic, others haven’t. DeVos’ guidance has sparked disputes between states and private school associations. At least one state, Illinois, had required districts to hold a portion of CARES money in escrow until further word from the federal government.

Photo: U.S. Secretary of Education Betsy DeVos speaks about the coronavirus pandemic and school closures at a White House briefing in March. --AP Photo/Alex Brandon