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In blistering decision, second federal judge halts DeVos’s rule giving federal coronavirus aid to private schools

Secretary of Education Betsy DeVos interacts with Forsyth Central High honors chemistry students during a visit to the Cumming, Ga., school on Aug. 25. (Alyssa Pointer/Atlanta Journal-Constitution/AP)
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For the second time in a week, a federal judge issued a blistering ruling against a controversial rule by Betsy DeVos’s Education Department that directs states to give private schools a bigger share of federal coronavirus aid than Congress intended.

U.S. District Judge James Donato in San Francisco on Thursday granted a preliminary injunction against the rule, calling the Education Department’s argument “‘interpretive jiggery-pokery’ in the extreme.” He even seemed to mock it, saying that Congress’s intent “is plain as day,” and cited definitions in the Merriam-Webster Dictionary of basic words such as “same” as he eviscerated the department’s use of them.

The lawsuit, filed by eight states as well as D.C. and four school districts, involves a July 1 regulation about the distribution of federal funds. The money, about $13.5 billion, was included for K-12 schools in Congress’s $2 trillion aid package — known as the Cares Act — in March to mitigate economic damage from the pandemic.

(The plaintiffs are California, Michigan — DeVos’s home state — Hawaii, Maine, Maryland, New Mexico, Pennsylvania and Wisconsin, as well as D.C., and the school districts in Chicago, Cleveland, New York City and San Francisco.)

U.S. legislators from both parties said that most of the Cares Act’s K-12 education funding was intended to be distributed to public and private elementary and secondary schools using a formula based on how many poor children they serve that had long been used for distributing federal aid.

Before the rule was published, DeVos had said she wanted money sent to private schools based on the total number of students in the school — not how many students from low-income families attended. That would have sent hundreds of millions of dollars more to private schools than Congress had intended.

After strong pushback, the department released the rule and said it was a compromise, though critics said it was not much better than the original plan. The department said that school districts may distribute Cares Act funding to private schools based on the number of poor students they enroll — but if they do that, they can use the funding only for the benefit of poor students. School districts say that’s unworkable for them.

Last week, U.S. District Judge Barbara J. Rothstein, in Washington, temporarily blocked the same rule in that state, slamming the Education Department for arguing that states would not suffer irreparable damage if forced to implement the rule.

Federal judge halts Betsy DeVos’s controversial rule sending coronavirus aid to private schools

Donato said in his ruling that Congress made clear its intent by incorporating Section 1117 of the K-12 Every Student Succeeds Act, which spells out how private schools should get federal funds.

“This is ‘interpretive jiggery-pokery’ in the extreme,” he wrote. “… If Congress did not mean to use the formula in Section 1117, wouldn’t it simply have omitted any reference to it in the first place? But since Congress expressly referred to Section 1117, what exactly does the department think that means?”

Education Department Press Secretary Angela Morabito said in a statement: “While the Department does not comment on pending litigation, the secretary has said many times, this pandemic affected all students, and the CARES Act requires that funding should be used to help all students. For example, cleaning a school or supporting professional development for teachers — both allowable uses under the CARES Act — doesn’t only benefit some students; it benefits all of them. Since public schools want to use the money to benefit all of their students, there’s no reason to think that private schools shouldn’t be able to do the same. It is simply wrong to discriminate against kids and their taxpaying parents solely because they chose a school that worked for them instead of the state run option.”

The judge did note that “there is a public interest” in allowing private schools to receive some Cares Act funding — but said it is “manifestly not in the public interest” to allow the Education Department to “rewrite the statutory formula for sharing education funds.”

Donato noted how the rule is hurting some school districts. “Wisconsin schools had to choose between diverting over $4 million of Cares Act funding to private schools or abandoning districtwide coronavirus preparation such as sanitizing school buses,” he wrote.

(This post was updated with statement from Education Department)

Here’s Donato’s ruling:

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