Welcomes Hawaii, Maryland, and Pennsylvania, as well as the City School District for the City of New York, Chicago Board of Education, Cleveland Municipal School District Board of Education, and the San Francisco Unified School District to the lawsuit coalition

Interim final rule robs school districts of critical flexibility to address local needs

July 18, 2020 - SACRAMENTO – California Attorney General Xavier Becerra and Michigan Attorney General Dana Nessel are leading an expanded coalition of nine attorneys general and several local jurisdictions in seeking a preliminary injunction to immediately block U.S. Department of Education Secretary Betsy DeVos’ unlawful attempt to siphon pandemic relief funds away from K-12 public schools while litigation is ongoing. Today’s action comes in light of efforts by Secretary DeVos to undermine congressional intent through the promulgation of regulations that unlawfully reinterpret the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and run counter to efforts to ensure that schools have the flexibility they need to tackle the challenges of COVID-19. As a result of the interim final rule, tens of millions of dollars in California alone could be diverted away from taxpayer-funded public schools in our poorest school districts to private institutions — in violation of the requirements established by Congress, the Administrative Procedure Act, and the U.S. Constitution.

“Right now, our public schools and the families who rely on them are struggling to navigate this COVID-19 pandemic. Congress got it right to send CARES Act funding to all our schools and to focus it on those most in need,” said Attorney General Becerra. “But then, like clockwork, Education Secretary DeVos stepped in and decided that she didn’t need to follow the rules. She wrote a rule that unlawfully siphons taxpayer funds from those schools in need to divert them to private schools, which most families in America could never afford. We teach our kids to think critically and obey the rules. It’s time Secretary DeVos did the same.”

On March 27, 2020, Congress enacted the CARES Act in response to the ongoing pandemic and its impacts across the country. Under the act, Secretary DeVos is required to allocate funding to help schools prevent, prepare for, and respond to COVID-19. Specifically, the act, among other things, requires the Trump Administration to distribute billions of dollars in aid through the Elementary and Secondary School Emergency Relief Fund and the Governor’s Emergency Education Relief Fund to K-12 schools across the country — with more than $2 billion slated for public schools in California from the combined funds. While the CARES Act provided local authorities with critical flexibility in using these resources, it also established that funds should be distributed in line with Title I of the Elementary and Secondary Education Act of 1965 (Title I). Title I funds are generally aimed at aiding children from low-income families across the country. Under the CARES Act, private schools are only eligible for funds in certain circumstances in line with established Title I criteria. However, in direct contravention of Congressional intent, the U.S. Department of Education’s interim final rule blows up the legislated mechanism by requiring the inclusion of private schools based on the total population they serve, instead of income as provided for by the CARES Act. Moreover, the U.S. Department of Education admits that its rule allows private schools — with tuitions more akin to private colleges — to demand these emergency funds, leaving the poorest school districts with less.

Building on the lawsuit filed last week, Attorney General Becerra urges the court to immediately enjoin the U.S. Department of Education’s unlawful rule, arguing that it threatens imminent and irreparable harm to California and the other plaintiffs, to our schools, and to students across the country. As a result of the rule, public schools stand to lose significant CARES Act funds at a moment of crisis, directly contrary to the intent of Congress. In addition to the arguments made in support of a preliminary injunction, Attorney General Becerra today welcomed the addition of Hawaii, Maryland, and Pennsylvania, as well as the City School District for the City of New York, Chicago Board of Education, Cleveland Municipal School District Board of Education, and the San Francisco Unified School District to the lawsuit coalition. 

Attorney General Becerra is committed to protecting the rights of students in California and across the country. Earlier this week, following widespread public outcry and a lawsuit filed by the State of California, the Trump Administration ditched its dangerous directive on student visas. Last month, the Attorney General filed suit to challenge the Trump Administration’s unlawful new rule that weakens protections for survivors of sexual violence in schools — and simultaneously forces schools to divert attention away from critical work being done to address the effects of COVID-19. The California Department of Justice, on behalf of the California Community Colleges, also secured a preliminary injunction against Secretary DeVos’ arbitrary and unlawful requirements to block pandemic relief from approximately 800,000 California community college students, including Dreamers. In April, Attorney General Becerra opposed a federal proposal that would create loopholes that favor high sodium foods like pizza, french fries, and burgers in school meals. Last year, Attorney General Becerra secured a historic desegregation agreement with the Sausalito Marin City School District. He also reached an agreement with the Stockton Unified School District and its police department to address discriminatory treatment of minority students and students with disabilities.

In the new filings, Attorney General Becerra is joined by the attorneys general of Michigan, Hawaii, Maine, Maryland, New Mexico, Pennsylvania, Wisconsin, and the District of Columbia, as well as the City School District for the City of New York, Chicago Board of Education, Cleveland Municipal School District Board of Education, and the San Francisco Unified School District.

A copy of the amended complaint with details on the expanded coalition is available here. A copy of the brief in support of a preliminary injunction is available here.
Source: CA. DOJ