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Lawsuits Pile Up Against DeVos Mandate for Aid to Private School Students

By Andrew Ujifusa — July 22, 2020 3 min read
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The number of legal challenges to a Trump administration rule over how public schools must use coronavirus relief to help private school students is growing.

On Wednesday, the NAACP and a number of school districts announced that they had filed a lawsuit against the rule, which was issued nearly a month ago from U.S. Secretary of Education Betsy DeVos. And on Monday, Washington state filed its own lawsuit challenging DeVos’ rule, which provides districts two choices about how they distribute that aid—the way the two choices are structured essentially incentivizes districts to set aside a share of federal relief to benefit all local private school students.

Both legal challenges to the rule, which covers a part of the CARES Act known as equitable services, come on the heels of a July 7 lawsuit originally filed by five states and the District of Columbia. All three lawsuits are seeking a preliminary injunction to immediately halt DeVos’ ability to enforce the rule while the case is considered.

The fight over how much virus aid should go to private school students has underscored years-long divisions in the education community, and deepened political ill-will as the K-12 community has tried to address the coronavirus pandemic.

DeVos and private school advocates have said the virus aid from Congress was meant to benefit all students regardless of what school they attend. But many public education officials, teachers’ unions, and others have argued she is disregarding congressional intent in order to satisfy her long-standing preference for private schools over traditional public schools, and to give private schools a lifeline during the pandemic.

Typically, equitable services requires districts to use a portion of their federal education aid provide services like tutoring and technology licenses to disadvantaged students at local private schools. However, when Congress included a requirement for equitable services in the CARES Act—the coronavirus relief package signed into law by President Donald Trump in late March—DeVos subsequently issued guidance that districts must use CARES aid to provide equitable services to all local private school students, not just disadvantaged ones.

After an uproar that lasted nearly two months, DeVos issued an interim final rule in late June that provided districts two options. Those options hinge on whether all schools in a district get CARES aid or just those with large shares of low-income students. If districts share virus aid with only the latter group of schools, they need only provide equitable services to low-income students in local private schools. But if they share it with all schools, including relatively affluent ones, they must share it with all local private school students.

However, other conditions around the rule make it harder for districts to have budgetary flexibility if they only share virus aid with less-affluent schools. Educators have also said the rule and what led up to it has created confusion and unnecessary delay for decisions about how to spend the relief money.

The complaint from the NAACP and several school districts says this rule was clearly designed to coerce districts into sharing virus aid with all their schools. In that way, the lawsuit says, the “greater the share of federal funds that Congress intended to support public education ends up benefitting private schools.”

And the complaint from Washington state says of the rule: “It reallocates funds to private schools regardless of need rather than focusing on the intended needs of public schools and low-income students at private schools.”

The school districts for Denver, Pasadena, Calif., and Stamford, Conn., joined the NAACP in its Wednesday suit against DeVos and the Education Department. The Chicago Tribune reported Tuesday that the city’s school district had joined the multi-state lawsuit filed on July 7, along with other districts and states, including the school boards for Cleveland, New York City, and San Francisco.

Photo: U.S. Secretary of Education Betsy DeVos speaks about the coronavirus pandemic and school closures at a White House briefing March 27, 2020. --AP Photo/Alex Brandon

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