AG Becerra Leads Lawsuit Against Betsy DeVos' Attempt to Siphon CARES Funds Away from Public Schools

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California Attorney General Xavier Becerra and Michigan Attorney General Dana Nessel are leading a coalition of six attorneys general in a lawsuit against Education Secretary Betsy DeVos’ with claims of unlawful attempt to siphon pandemic relief funds away from K-12 public schools.

“Again, and again, the Trump Administration takes action to steal from the poor and give to the rich,” Becerra wrote in a statement. “Whether it’s President Trump or Secretary DeVos, we won’t stand by when the education of our children or the rule of law is under threat. Congress set clear parameters on how to spend this money in order to confront the devastating effects of a pandemic on our schools. We’re going to court to make sure it ends up where it’s needed — the futures of our children are at stake.” 

“This pandemic has exacerbated the inequities that impact our most vulnerable students, and our public schools need every last dollar to safely and effectively resume learning,” said State Superintendent of Public Instruction Tony Thurmond. “We fully support this legal action because we agree it is unconscionable to divert funds from the students who need these resources the most.”

On March 27, Congress enacted the CARES Act in response to the ongoing pandemic and its impacts across the country. Under the act, DeVos is required to allocate funding to help schools prevent, prepare for, and respond to COVID-19.  As part of the CARES Act, Congress set forth a formula, through the Elementary and Secondary School Emergency Relief Fund, for the distribution of $13.2 billion in aid to K-12 schools nationwide — with about $1.5 billion for public schools in California.

As part of the act, aid to K-12 schools is required to 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 helping 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 Title I criteria.

However, according to the lawsuit, DeVos' department required the inclusion of private schools based on the total population they serve, instead of the income as dictated by the CARES Act.

The rule allows private schools — with tuitions more akin to private colleges — to demand these emergency funds, leaving the poorest school districts with less.

In the lawsuit, the coalition asserts that the Department’s interim final rule unlawfully exceeds its authority, undermines Congressional intent, fails to adequately justify its decision in breach of the Administrative Procedure Act, and violates the U.S. Constitution. 

"The lawsuit follows the latest effort 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 students and schools with demonstrated financial need get the resources they have been promised. 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," a public statement from Becerra reads. 

In filing the lawsuit, Attorney General Becerra is joined by the attorneys general of Michigan, Maine, New Mexico, Wisconsin, and the District of Columbia.

During a call with governors Tuesday, DeVos made it clear that she's pushing for schools to reopen across the country despite surging COVID-19 cases. 

“Ultimately, it’s not a matter of if schools need to open, it’s a matter of how. School must reopen, they must be fully operational. And how that happens is best left to education and community leaders,” DeVos told governors.

President Donald Trump has insisted that schools and colleges return to in-person instruction as soon as possible. Trump said Monday on Twitter that Democrats want to keep schools closed “for political reasons, not for health reasons.”

“They think it will help them in November. Wrong, the people get it!” Trump tweeted.

Trump scheduled a White House event for later Tuesday to press his case for reopening schools. Vice President Mike Pence and education and public health leaders were expected to attend.

The Centers for Disease Control and Prevention put out guidance for schools last month, including staggering schedules, spreading out desks, having meals in classrooms instead of the cafeteria, adding physical barriers between bathroom sinks and cleaning and disinfecting surfaces.

In the call with governors, DeVos slammed districts that plan to offer in-person instruction only a few days a week. She called out Fairfax County Public Schools, which is asking families to decide between fully remote instruction or two days a week in the classroom.

“A choice of two days per week in the classroom is not a choice at all,” DeVos said, noting that the district’s distance learning last spring was a “disaster.”

Her criticism of schools’ distance education efforts extended across the country. DeVos said she was disappointed in schools that “didn’t figure out how to serve students or who just gave up and didn’t try.” She said more than one state education chief told her that they also were disappointed in districts that did “next to nothing to serve their students.”

The same thing can’t happen again this fall, she said, urging governors to play a role in getting schools to reopen.

“Students across the country have already fallen behind. We need to make sure that they catch up,” DeVos said. “It’s expected that it will look different depending on where you are, but what’s clear is that students and their families need more options.”