Federal Court Rules DeVos Guidance on CARES Act Funding Illegal

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Federal Court Strikes Down DeVos Guidance on CARES Act Funding

Building on the preliminary injunctions issued by one federal judge in Washington State and another in California against implementation of Education Secretary Betsy DeVos’s stipulations for deploying CARES Act funds, Judge Dabney Friedrich of the U.S. District Court for the District of Columbia ruled on September 4 that the stipulations were illegal.

In NAACP v. DeVos, Judge Friedrich validated the conclusions of her fellow judges on the West Coast and gave their injunctions national force in ruling the Education Department’s guidance illegal.

Under Congress’s Coronavirus Aid, Relief, and Economic Security (CARES) Act, the federal government allocated $13.5 billion via the Education Stabilization Fund to public school districts based on their portion of Title I students in order to coordinate virtual education, buy necessary technology, and prepare schools for safe reopening. According to Section 1117 of the Elementary and Secondary Education Act, private schools located in Title I areas may obtain a portion of a district’s Title I funding “based on the number of children from low-income families who attend.”

DeVos called in April for funds to be distributed solely according to enrollment, without regard to economic need. After she was rebuffed by leaders of the House and Senate, she modified her stance with a directive to the states stipulating that money going to schools, public or private, could either be used only for the specific benefit of children from low-income families or be allocated to schools, public or private, according to enrollment.

Public school administrators, parents, and a range of advocacy groups countered in several class action lawsuits that the first option would be impractical, as such targeted funding could not apply in matters concerning public health, and that the second option would mean diversion of funds from public schools to private. On their behalf, attorneys filed Michigan et al. v. DeVos, heard by Judge James Donato of the U.S. District Court for the Northern District of California, State of Washington v. DeVos, heard by Judge Barbara Rothstein of the U.S. District Court for the Eastern District of Washington, and NAACP v. DeVos, heard by Judge Friedrich.

In agreement with the plaintiffs,  Judge Donato called the Education Department’s case “interpretive jiggery-pokery in the extreme” and on August 26 issued a preliminary injunction against its rule.

“Plaintiffs have demonstrated a likelihood of irreparable harm,” wrote Judge Donato. “They submitted substantial declarations detailing, often on a district and school-level basis, the financial and operational harms enforcement of the Rule would inflict. The Court’s task in evaluating this evidence was made considerably easier by the fact that the Department does not meaningfully dispute it. Counsel for the Department forthrightly acknowledged at the hearing that plaintiffs would sustain measurable financial and budgetary hardships under the Rule.”

In illustration of such hardships, Judge Donato wrote, “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.”

In NAACP v. DeVos, Judge Friedrich, appointed to the federal bench by President Donald Trump, echoed Judge Donato in blunt terms: “Congress expressed a clear and unambiguous preference for apportioning funding to private schools based on the number of children from low-income families. Contrary to the Department’s interim final rule, that cannot mean the opposite of what it says.”

Joining the NAACP as plaintiffs in the case were families in Maryland, North Carolina, Georgia, Arizona, Florida, Tennessee, Nevada, Mississippi, Alabama, and Washington, D.C. In addition, the following school districts joined the suit: Broward County, Florida; DeKalb Country, Georgia; Denver County, Colorado; Pasadena United, California; and Stamford, Connecticut.

The plaintiffs were represented by the Education Law Center, the Southern Poverty Law Center, and the law firm Munger, Tolles & Olson.

Samuel E. Abrams
Director, NCSPE

Published Wednesday, Sep. 9, 2020