On Thursday, DeVos codified her disputed interpretation of the law into a binding regulation that will take effect in a few days. The agency is expecting a court challenge, an aide to DeVos said.
At issue is the $13.5 billion that Congress allocated to K-12 schools as part of the Cares Act, a stimulus package meant to mitigate the economic damage from the coronavirus crisis. Most of the funding was to be distributed to public and private elementary and secondary schools using a formula based on how many poor children they serve, according to members of Congress in both parties.
The same formula has long been used to allocate funding for poor children attending private schools. But in guidance sent to the states in April, DeVos said that in allocating money for the private schools, school districts, which distribute the money, should use a calculation that takes into account the total number of students private schools serve, not just the number of poor students attending.
The government should not discriminate against private-school students, DeVos said at the time.
The difference between these two interpretations amounts to hundreds of millions of dollars that would go to private schools rather than public districts. One calculation puts the difference at more than $1 billion.
DeVos, who has long championed public funding of alternatives to traditional public school, said Thursday there is nothing in the law that allows districts to “discriminate against children and teachers based on private school attendance and employment.”
“Now’s the time to focus on doing what’s right for all students,” she said.
The agency offered what it billed as a compromise. It said that school districts may distribute the money to private schools based on the number of poor students they serve. But if they do so, districts must then restrict their own spending of the federal money to the benefit of their own poor students.
“We are leaving them an option to only serve low-income children,” said Jim Blew, assistant secretary for planning, evaluation and policy development at the Education Department.
Opponents said this was not a real alternative. Although the law uses poverty to allocate funding, it allows districts to use the money to aid all schools and students. It’s designed to offset expenses such as cleaning of schools and training teachers in remote education. Opponents said restricting districts’ spending authority to only high-poverty schools would hamstring them. A GOP congressional aide agreed and said Congress never intended to give private schools so much funding and DeVos is jeopardizing other efforts to provide them with aid.
“The policy priorities of the secretary represent an opportunistic money grab, using the pandemic environment to advance the privatization agenda,” said Daniel A. Domenech, executive director of the AASA, the School Superintendents Association.
Blew and DeVos said that schools of all types need aid. Blew said the vast majority of private schools are not elite institutions but small schools that serve students of modest means and are, in some cases, teetering on the edge of survival. He said that he hopes wealthy schools will not request the funding and that they “can expect to be publicly shamed” if they do.