KingSpry | Judiciary Halts DeVos Rule CARES Act Private School

Judiciary Halts DeVos Rule of CARES Act Funds to Private Schools

Posted on September 2nd, 2020
by Avery E. Smith

On  August 27, 2020, a federal judge in San Francisco, California temporarily blocked Education Secretary Betsy DeVos from enforcing her Coronavirus Aid, Relief, and Economic Security (“CARES”) Act guidance that requires federal COVID-19 response funding to be diverted from K-12 public schools to private schools.

Several states, including Pennsylvania, are Plaintiffs in this case.

The CARES Act provides financial relief and other assistance to Americans during the hardships and uncertainties caused by the pandemic. Passed in March, CARES Act provided about $13 billion to public school districts throughout the country.  The funding was designed to support schools with low-income students and is based on the amount of funding each district received in the most recent year.

The CARES Act directs public schools to share a portion of the funds with private schools “in the same manner” as provided under the Elementary and Secondary Education Act of 1965 (“ESEA”), which calculates this portion based on the number of children from low-income families who attend the private school.

On April 30, 2020, Secretary DeVos provided guidance on the CARES Act, instructing public schools to calculate CARES funds paid to private schools based on the private schools’ overall student population, not the number of low-income students. Many believed this guidance to be at odds with the plain language of the Act, and as a result, public schools would lose millions they would otherwise be entitled to and would face detrimentally adverse financial and operational hardships.  On July 1, 2020, the U.S. Department of Education and Secretary DeVos published a final rule, in which they adopted and expanded their own guidance from April. DeVos explained the CARES Act was intended to benefit all students affected by the pandemic.

This new rule that the Court struck down presents two different options:

  1. If school districts use CARES Act funding for students in all public schools, it must calculate the funds allocate to private schools based on total number of students enrolled.
  2. If school districts allocate CARES Act funds for only the low-income private school students, they must only use CARES Act fund for only Title 1 schools. CARES Act funds could not be used for district-wide measures.

The Federal judge noted DeVos’ Final Rule is not in accordance with Congress’ mandate to allocate CARES funds to non-public schools “in the same manner” as the ESEA. The court noted that the intent of Congress was very clear and unambiguous, and that funds must be distributed based on the proportion of low-income students and not total population.

This is the second judge in the last several weeks to temporarily block DeVos’s rule.  On August 18, 2020, U.S. District Judge Barbara J. Rothstein, in Washington State, also criticized the Education Department for arguing that states would not suffer irreparable damage if forced to enforce the rule.

Bottom Line for Schools

What does this mean for public schools? The court has ordered the Department of Education and DeVos from enforcing the July 1st Final Rule.  The decision is likely to be appealed but is currently in effect in Pennsylvania. For now, public schools should continue to apply the calculations provided under the ESEA regarding the allocation of funds to private schools.

If you have a question, please contact your legal counsel or one of the attorneys at KingSpry.

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.