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Second Judge Blocks DeVos’ Virus Relief Rule, Calls Her Reasoning ‘Jiggery-Pokery’

By Andrew Ujifusa — August 26, 2020 2 min read
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A second federal judge has ruled against Secretary of Education Betsy DeVos and her department’s controversial rule governing how much coronavirus aid relief public schools must set aside for private school students.

Public school officials and advocates have sharply criticized her rule, saying it siphons money away from their schools at a time of immense need for many students during the pandemic.

U.S. District Judge James Donato granted a preliminary injunction blocking the U.S. Department of Education from implementing or enforcing its interim final rule in several states and school districts while he hears arguments in the case. It marks the second time in less than a week that a federal judge has ruled against DeVos on the issue. In both cases, judges issued blunt criticisms of the directive.

The rule, which the department officially released on July 1, governs virus relief money in the CARES Act. It directs schools to set aside money for what’s known as “equitable services” for all local private school students, if they want to use the remaining money for all their local public schools. That’s a departure from how federal law typically handles those services, which are normally provided to disadvantaged and at-risk students in private schools. Read more background on equitable services here.

DeVos and top department officials have justified the rule by saying that the CARES Act is clearly intended to benefit all students, since all students have been hurt by the pandemic. But her critics have alleged that the rule intentionally misreads the law and improperly diverts money away from disadvantaged students in traditional public schools.

In his order, Donato said that “there is a public interest” in allowing a certain portion of CARES money to benefit private school students. But “allowing the Department to rewrite the statutory formula for sharing education funds is manifestly not in the public interest,” he wrote.

The judge for the Northern District of California didn’t shy away from speaking bluntly about what he saw as the department’s flawed interpretation of the CARES Act; at one point he said the department’s defense of its rule was “‘interpretive jiggery-pokery’ in the extreme.”

Donato also highlighted arguments from plaintiffs about the “irreparable harm” the rule was causing.

“Wisconsin schools had to choose between diverting over $4 million of CARES Act funding to private schools or abandoning district-wide coronavirus preparation such as sanitizing school buses,” he wrote.

On Aug. 21, U.S. District Judge Barbara J. Rothstein of the Western District of Washington issued a separate preliminary injunction blocking the department from implementing or enforcing the rule in a case brought by the state of Washington. Rothstein also took a very dim view of the department’s argument, although it’s unclear if Rothstein meant her preliminary injunction to apply just in Washington state or nationwide.

By contrast, in his order, Donato wrote that the department was “preliminarily enjoined from implementing or enforcing against plaintiffs” its rule about coronavirus relief.

Plaintiffs in the case are California, Michigan, Hawaii, Maine, Maryland, New Mexico, Pennsylvania, the District of Columbia, and school districts in Chicago, Cleveland, New York City, and San Francisco.

Read Donato’s 15-page ruling here:

Photo: Secretary of Education Betsy DeVos (Andrew Harnik for the Associated Press)

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