First-grade students listen to their teacher inside a Sidney, Ohio classroom.
At issue is a federal rule initiated by U.S. Education Secretary Betsy DeVos, directing the U.S. Department of Education to share federal Coronavirus Aid, Relief and Economic Security (CARES) funds between private and public schools.
Several state attorneys general, including California, Michigan and Wisconsin, in early July challenged DeVos’s rule, arguing it misinterpreted the CARES Act language in allocating funds to private schools.
“We cannot and will not sit on the sidelines while critical funding specifically allocated based on low-income status is allowed to be reallocated by counting students that have privileges and resources already available to them,” Michigan Attorney General Dana Nessel said when joining the lawsuit.
The Wisconsin Institute for Law and Liberty filed the amicus brief in support of DeVos’s directive, and was joined by 38 groups across the nation on behalf of more than 5 million students attending 33,000 schools battered by COVID-19.
The brief argued public and private schools each face “significant expenditures” to transition to remote learning, procure personal protective equipment, clean schools, and take other safety measures for in-person instruction.
“If the Court grants Plaintiffs’ requested injunction, private schools … will suffer the same ‘imminent and irreparable harm’ to their schools and the students they serve that Plaintiffs allege will occur without an injunction: they ‘will lose over $150 million’ in CARES Act funds (in just the jurisdictions represented by the Plaintiffs), that Congress intended should go to them,” the brief says.
The brief cites a libertarian-leaning Cato Institute tracker that 107 private schools have already closed permanently across the nation and estimates that if their 16,000 students switched to public school education, it would cost taxpayers about $252 million.
The brief also argues that private schools would be hit harder if the court revoked their federal funding because public schools are already funded through taxes.
“The $16.5 million difference, while a mere fraction of funding for Michigan’s public schools, could be significant in the ability of private schools in Michigan to maintain viability and to provide the safe learning environment expected,” the brief says.
The six-count complaint filed in the U.S. District Court for the Northern District of California asks the court to declare DeVos’s rule unlawful.
“The CARES Act is a special appropriation to combat the effects of the novel Coronavirus Disease 2019 (COVID-19). The pandemic has harmed all our Nation’s students by disrupting their education,” the Department of Education wrote in the latest rules.
“Nothing in the CARES Act suggests Congress intended to differentiate between students based upon the public or non-public nature of their school with respect to eligibility for relief.”
Jay R. Carson, a senior litigator at The Buckeye Institute’s Legal Center, argued because the COVID-19 pandemic impacted all schools, private schools should receive federal funding as well.
“Every student in every school across the nation has been impacted by the COVID-19 pandemic, and all schools need help to safely reopen and navigate the current health crisis,” Carson said in a statement.
“The U.S. Department of Education’s guidance on how to distribute taxpayer-funded assistance is not only consistent with the CARES Act, it is the right thing to do to ensure schools can safely reopen and students can safely return to the classroom.”