Dear Commons Community,

The article below appeared in Education Dive and was sent to me by my colleague, David Bloomfield.  He is quoted in the piece.   As reported, a federal judge in Washington state temporarily blocked Education Secretary Betsy DeVos from enforcing a controversial rule that directs states to give private schools a bigger share of federal coronavirus aid than Congress had intended.

Tony

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Education Dive

Judge blocks Ed Department from giving increased CARES funds to Washington private schools

Author Naaz Modan

Published

Aug. 22, 2020

Dive Brief:

• A federal court in Washington has ordered a preliminary injunction against the U.S. Department of Education and its secretary, Betsy DeVos, from implementing an interim final rule on distribution of Coronavirus Aid, Relief, and Economic Security (CARES) Act funding, which the judge said would cause public schools in the state “great” and “irreparable” harm.
• The interim final rule, issued in late June, compelled districts to choose between a poverty-based and an enrollment-based formula in their distribution of CARES funds. The former would require districts to fund only Title I schools, while the latter would require districts to allocate money for private schools proportional to their enrollment if they choose to provide emergency aid to all public schools.
• In her decision, Judge Barbara J. Rothstein rejected DeVos’ claims that the Education Department’s interpretation is equitable and aligns with the intention of the law, calling the rule “a stretch” and its claims “remarkably callous, and blind to the realities of this extraordinary pandemic.”

Dive Insight:

When the interim final rule was released, districts and education organizations immediately expressed concern that funds would be misdirected to private schools. Rothstein said as such in her decision, adding the department’s rule was “forcing the State to divert funds from public schools,” which “ignores the extraordinary circumstances facing the State and its most disadvantaged students.”

Religious and other private schools have asked districts to divvy up the CARES funds with them, saying they also are suffering financially from the pandemic.

“It’s made relationships between public and private entities more strained,” said Sasha Pudelski, advocacy director for AASA, The School Superintendents Association, noting that private schools in some cases have threatened public schools with lawsuits.

Pudelski said the judge’s decision to move forward with the injunction “got it right on the money and hit the right tone.” The order will prevent DeVos’ rule from going into effect until there is a full trial.

The decision to block DeVos’ rule only applies to Washington schools impacted by the lawsuit. But with two additional cases ongoing in California (joined by Michigan) and Washington, D.C., it’s likely this case could have some national influence, said David Bloomfield, a professor of educational leadership, law and policy at Brooklyn College​ in New York.

For the rule to be blocked nationwide, though, either all jurisdictions would have to join in and win lawsuits to stop it from going into effect; the case would have to work it’s way up to the U.S. Supreme Court; or the Education Department could withdraw it, Bloomfield said.

“The administration frequently tries for a far-reaching policy decision, and withdraws it once slapped down by the courts,” the lawyer said, adding its possible the department will “see the handwriting on the wall.”

He added districts nationwide now will likely allocate CARES funds based on student need, rather than enrollment, which will increase the amount available for public schools. And it’s unlikely the Education Department would sue if districts made that decision, he said, because of the federal court decision.

In other places, Bloomfield said, some districts that preferred to distribute funds to private schools, too, “may have shoveled the money out the door as fast as they could.”

However, although this is a win in Washington state for public schools, Pudelski said its likely districts that have already distributed their CARES money based on the rule won’t recuperate them and that private schools will be able to keep the dollars.

Districts under this particular case’s jurisdiction would have the right to sue for reimbursement, Bloomfield said.

The Ed Department did not respond to Education Dive’s request for comment in time for publication.