Judge blocks U.S. Department of Education from enforcing CARES Act private school funding rule

On Aug. 21, 2020, a federal judge ruled against the U.S. Department of Education in Washington v. DeVos, a lawsuit over how much coronavirus aid public schools must set aside for private school students.

The U.S. Department of Education’s interim final rule issued earlier this summer created new limits on the use of money under the CARES Act — the federal COVID-19 pandemic stimulus plan — that pushes districts to provide money for services to all local private school students, regardless of income level. Typically, federal money is reserved for “equitable services” that go to more disadvantaged private school students.

Under the interim final rule, states must use total enrollment in a private school to determine the private school’s share of a district’s funding, instead of using a formula based on the percentage of students from low-income families who attend the private school. Or, if the state only funds low-income private school students, it must also restrict CARES Act funding in public schools to low-income Title-I designated public schools, not all schools. The State of Washington argued in this case that the interim final rule “misconstrues Congress’s intent and effectively diverts emergency relief funding from economically disadvantaged public schools to less disadvantaged private schools.”

The preliminary injunction halts enforcement of the interim final rule while the judge considers the case.

In approving the preliminary injunction, the judge wrote that “[t]he Department [of Education] claim that the State faces only an economic injury, which ordinarily does not qualify as irreparable harm, is remarkably callous, and blind to the realities of this extraordinary pandemic and the very purpose of the CARES Act: to provide emergency relief where it is most needed. The school year is rapidly approaching; every day that goes by in which educators are denied access to these funds creates unnecessary risk, to both the health and education of Washington’s students.”

The ruling is not explicitly limited to Washington state, but it is unclear how far-reaching the preliminary injunction is at this point. On July 7, 2020, California, along with multiple other states, filed a lawsuit challenging the same interim final rule. CSBA’s Education Legal Alliance is monitoring the cases to ensure the interests of CSBA’s members are represented and to potentially file amicus support if needed.