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Federal Judge Throws Permanent Wrench into DeVos’s Plans to Send $16M in CARES Act Funds to Private Schools


Secretary of Education Betsy DeVos just got to the official end of the line with her efforts to divert $16 million in public school COVID-relief funding to private schools.

U.S. District Judge for the Northern District of California James Donato signed a permanent injunction–made public Monday–that will formally end litigation begun last summer against the Department of Education (DOE). In July, Judge Donato, a Barack Obama appointee, quoted the late Justice Antonin Scalia when he called DeVos’s justification of the DOE’s pro-private school policy “interpretive jiggery-pokery in the extreme.”

The Congressional CARES Act earmarked approximately $16 billion to help elementary and secondary schools maintain their operations and provide effective education during the pandemic. Funds were to be distributed to both public and private schools; the amount allocated to private schools was, as has been the case historically, based on number of low-income students served by the private schools. The DOE under DeVos, though, issued a rule that would instead apportion funding based on total student enrollment. As a result, far more CARES funding would have found its way into private schools.

Michigan, California, Hawaii, Maine, Maryland, New Mexico, Pennsylvania, Wisconsin, the District of Columbia as well as public school districts in New York City, Chicago, Cleveland and San Francisco sued to block the DOE’s rule. In July, the court ruled against the DOE in a preliminary injunction; now, the lawsuit has come to its final end.

Responding to Judge Donato’s preliminary injunction, DeVos issued a letter to state school officers. In it, she explained the reasoning underlying the Department’s funding rule:

We started from a premise that I believe with every fiber of my being: all children are created equal, and all children matter. In the CARES Act, there is nothing suggesting Congress intended to deny some American students the help they need. In the real world, the pandemic harmed everyone. Sadly, that fact did not stop some from suing us, attempting to deny private-school children and teachers help they needed.

DeVos continued, saying that, “The Department strongly, but respectfully, disagrees with the ruling,” against it. “However,” she added, “we respect the rule of law and will enforce the law as the courts have opined. The Department will not appeal these rulings.”

Judge Donato’s permanent order now mandates the following:

  • State and local education agencies will calculate the share CARES Act funding for private schools, “in a manner inconsistent with Title I’s calculation for equitable services to private schools,” and not in the manner the DOE detailed in its earlier rule.
  • CARES Act funds are to be distributed only to public schools that are eligible for or participate in Title 1 (those that serve at least 40 percent low-income families).
  • The DOE is prohibited from taking any adverse action against school districts that relied on the original guidance or interim final rule before the  preliminary injunction entered.

Many have speculated that a Joe Biden presidential administration will mean dramatic changes to federal education policy, noting a stark contrast between Betsy DeVos and Dr. Jill Biden. While DeVos championed private schools, the incoming first lady is a career educator, community college professor, and member of the nation’s largest teachers’ union. Joe Biden’s campaign staff has committed to naming a former public school educator to lead the DOE, and has promised to reverse key educational policies of the Trump administration.

[image via Alex Wong/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos