5 States, DC Sue Education Secretary Over CARES Funding for Private Schools

U.S. Secretary of Education Betsy DeVos listens during a cabinet meeting in the East Room of the White House in Washington on May 19, 2020. Alex Wong/Getty Images

Several states are suing Education Secretary Betsy DeVos and her department in order to block a rule over the amount of federal relief funding set to be transferred from public schools to private schools.

Attorneys general of California and Michigan announced the lawsuit on Tuesday. They were joined by Maine, New Mexico, Wisconsin, and the District of Columbia. The plaintiff alleged that the Education Department’s rule siphons resources away from economically disadvantaged public school students and improperly diverted it to private school students, including those from affluent families.

Wisconsin Attorney General Josh Kaul argued that DeVos’s guidance (pdf) in April goes against the intent of Congress in disbursing federal funds in the CARES Act, which made available over $13 billion to help K-12 students continue their education disrupted by the public health emergency.

“The funds allocated to schools in the CARES Act provide vital support at a time when schools have had to make significant changes to the way they teach students,” said Kaul, reported Milwaukee Journal Sentinel. “Instead of ignoring congressional intent and diverting funds away from public schools, Secretary DeVos should follow the law.”

Most of the CARES Act money is being distributed to school districts using the Title I formula, meaning that districts with more students from low-income families are getting more relief money. In the June 25 rule, however, DeVos instructed districts to set aside a portion of the CARES money to support private school students based on total enrollments, rather than just the number of low-income students.

“Services under the CARES Act programs can be available for all all students—public and non-public—without regard to poverty,” the rule reads.

“It’s clear that the COVID-19 pandemic affected all schools. Likewise ... it’s appropriate and reasonable for private schools to receive this funding,” she said. “The DeVos argument is that public schools can portion the funds any way they want within their schools, so private schools should be able to access those funds to serve all of their students, just like the public schools.”

The Education Department on July 1 published an interim final rule, providing school districts two options about how to spend the CARES money. In one scenario, they can distribute funds from CARES Act to all schools regardless of their low-income Title I status, but must also pay for “equitable services,” such as tutoring or transportation, for all private school students. In the other, they can fund only low-income private school students, while also restricting CARES Act funding to low-income Title I-designated public schools, rather than all schools.

Opponents to the idea that public schools have to share emergency funding with private schools remain unsatisfied. California Attorney General Xavier Becerra, who leads the lawsuit, said Tuesday the new rule represents a “false choice,” arguing that the Congress never intended to make school districts choose between those options in the first place.

“Some of those private schools have already been able to access hundreds of billions of dollars from the CARES Act Paycheck Protection Program, unlike California public schools that can’t,” he said.