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July 22, 2020 – A rule issued by the U.S. Department of Education this month coerces school districts to use an illegal process to inflate the amount of federal COVID-19 aid they must share with private schools. The rule will drastically diminish the resources available to support public school children and historically underserved student populations during the COVID-19 pandemic, according to a lawsuit filed today by public school parents, districts, and the NAACP. The lawsuit seeks to block the rule. 

The lawsuit, NAACP v. DeVos, explains that the rule imposes illegal and harmful requirements on the emergency relief funds allocated to public school districts under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Under the rule, school districts must divert more funding for “equitable services” to private school students than the law requires or face onerous restrictions on the use of those funds in their public schools. Both options violate the clear language and intent of the CARES Act and will undermine district efforts to adequately serve students who desperately need services and supports due to the impacts of the pandemic. 

The CARES Act directs public school districts to calculate the amount they must set aside for private schools based on the number of low-income students enrolled in private schools. However, DeVos’ rule forces school districts to comply with one of two illegal options, either: (1) allocate CARES Act funds for private schools based on all students enrolled in private school, which includes students from affluent families, or (2)  allocate these funds based on the number of low-income students at private schools, but face severe restrictions on how the rest of the district’s CARES Act funds can be used, including a prohibition on their use to serve any students who do not attend Title I schools. 

The rule was first introduced in April as non-binding guidance from Secretary DeVos and received widespread criticism from education leaders and lawmakers that the guidance violated the CARES Act and would leave districts without resources essential to address the impacts of COVID-19. Several state attorneys general have also filed suit to challenge these new rules.

“Amid a national health crisis, Education Secretary Besty DeVos is robbing public school children of desperately needed relief and diverting it to private schools,” said Derrick Johnson, president and CEO, NAACP. “This is a new low, even for an administration intent on promoting inequality in education. Children and families across the nation are facing unprecedented risks to their safety and educational opportunities. COVID-19 has magnified the hardships for children from low-income households and diminished access to quality instruction, digital technology, nutrition, social development, and other vital resources. These are consequences that will last a lifetime.” 

“Forcing districts to spend even more funding on private schools exacerbates existing inequities in Arizona,” said Beth Lewis, Title I school parent and teacher in the Tempe Elementary School District and cofounder of grassroots advocacy group Save Our Schools Arizona. “Our public schools have been defunded for decades and already lose hundreds of millions of dollars to private schools via vouchers every single year. Secretary DeVos’s binding rule forces our neighborhood schools to give desperately needed federal aid to private schools that have already accepted small business bailouts. Meanwhile, Title I public schools like mine have to rely on local charities and donors to help us feed students and stock classrooms. This rule will harm the students and families who need resources the most.”

The coronavirus pandemic has focused the nation’s attention on the essential role public schools play in the lives of families and communities. Since closing buildings in March, public schools across the country have worked tirelessly to maintain instruction and provide students with meals, access to technology, health services, and social and emotional supports. Public schools now need more – not fewer – resources. Yet, Secretary DeVos continues to exploit the pandemic to promote her political agenda of funneling taxpayer dollars to private schools.

The plaintiffs in the lawsuit are represented pro bono by the law firm Munger, Tolles & Olson, LLP, as well as Education Law Center (ELC) and the Southern Poverty Law Center (SPLC). The organizations collaborate on Public Funds Public Schools (PFPS), a national campaign to ensure public funds are used exclusively to maintain, support, and strengthen the nation’s public schools.

www.splcenter.org