Judge rips rule on funds to private schools
For the second time in a week, a federal judge has issued a blistering decision against an Education Department rule that directs states to give private schools a bigger share of federal coronavirus aid than Congress intended.
U.S. District Judge James Donato in San Francisco on Thursday granted a preliminary injunction against the rule, calling the department’s argument “interpretive jiggery-pokery in the extreme.”
He also said Congress’ intent “is plain as day” and cited definitions in the MerriamWebster dictionary of basic words such as “same” as he eviscerated the department’s use of them.
The lawsuit, filed by eight states, the District of Columbia and four school districts, involves a July 1 regulation about the distribution of federal funds. The money, about $13.5 billion, was included for K-12 schools in Congress’ $2 trillion aid package known as the Coronavirus Aid, Relief and Economic Security Act, in March to mitigate economic damage from the pandemic.
Lawmakers from both parties said most of the package’s K-12 education funding was intended to be distributed to public and private elementary and secondary schools using a formula based on how many poor children they serve that long had been used for distributing federal aid.
Before the rule was published, Education Secretary Betsy DeVos had said she wanted money sent to private schools based on the total number of students in the school — not how many students from low-income families attended. That would have sent hundreds of millions of dollars more to private schools than Congress had intended.
After strong pushback, the department released the rule and said it was a compromise. Critics said it wasn’t much better than the original plan.
The department said school districts may distribute the funding to private schools based on the number of poor students they enroll — but if they do that, they can use the funding only for the benefit of poor students. School districts say that’s unworkable for them.
Last week, U.S. District Judge Barbara Rothstein in Washington temporarily blocked the same rule in that state, slamming the Education Department for arguing that states wouldn’t suffer irreparable damage if forced to implement the rule.
Donato said in his ruling that Congress made clear its intent by incorporating Section 1117 of the K-12 Every Student Succeeds Act, which spells out how private schools should get federal funds.
The judge did note that “there is a public interest” in allowing private schools to receive some of the aid package’s funding but said it’s “manifestly not in the public interest” to allow the Education Department to “rewrite the statutory formula for sharing education funds.”
Donato noted how the rule is hurting some school districts. “Wisconsin schools had to choose between diverting over $4 million of CARES Act funding to private schools or abandoning districtwide coronavirus preparation such as sanitizing school buses,” he wrote.