New Haven Register (Sunday) (New Haven, CT)
Clock ticking for school districts to reclaim funds
Prior to her appointment as U.S. Education Secretary, Betsy DeVos, who has no professional experience or credentials in education, engaged in a decades-long crusade to privatize public education in Michigan, to the detriment of Michigan’s most vulnerable students. She has since used her powerful position to continue this crusade, even exploiting the pandemic to divert desperately needed public funds away from our most underserved public school students toward private schools.
However, earlier this month, in a lawsuit brought by parents, school districts, including Stamford, and the NAACP, a federal judge, appointed by President Donald Trump, thwarted one of her schemes to funnel emergency relief funds away from public schools.
In March, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The law made available billions of dollars in emergency aid for elementary and secondary schools. Two of the funds providing this relief are the Governors’ Emergency Education Relief Fund (GEER) and the Elementary and Secondary School Emergency Relief Fund (ESSER). Congress intended for the CARES Act to help the nation’s most vulnerable students, funding, in ESSER, “activities that address the unique needs of low-income children.”
In the Act, Congress required that any school district receiving GEER and ESSER funds “provide equitable services in the same manner as provided under section 1117 of the ESEA of 1965 (Title I) to students and teachers in non-public schools.” Title I is a federal law that provides additional funds to schools and districts with 40 percent or more low-income students. Equitable services are services provided to private school students who are not yet at grade level. Title I mandates that school districts set aside a certain amount of their Title I funding to provide equitable services. That amount is based on the number of low-income children who attend private schools.
In direct contravention of the law, Secretary DeVos sped through an Interim Final Rule, avoiding the normal regulatory process, directing that districts calculate the equitable services set-aside based on the total number of private school students, rather than the number of low-income students.
This change cost needy public school districts across the country to hundreds of millions of dollars in emergency funds at a time when school district budgets have been slashed, and schools are in desperate need of resources to ensure the safe reopening of school buildings and/or access for all students to remote learning.
The rule further provided that school districts could “choose” to calculate the set-aside based on low-income students only. However, if they chose this “option,” they would face severe restrictions, including being prohibited from using their CARES Act funding in any non-Title I schools. This restriction prevented districts from providing much-needed resources, such as personal protective equipment, district-wide, and from using CARES funding to serve their needy students who attend non-Title I schools.
This brazen attempt to divert funds intended for America’s most underserved students to private schools prompted several lawsuits. A handful of states and school districts sued in federal court in Washington and California. The judges there issued preliminary injunctions temporarily blocking the rule. Another advocacy group sued in federal court in Maryland.
Parents, school districts and the NAACP brought their lawsuit, NAACP v. DeVos, in federal court in the District of Columbia. (The plaintiffs were represented by the law firm, Munger Tolles & Olson, Education Law Center and Southern Poverty Law Center. I was co-counsel in the case).
Judge Dabney L. Friedrich ruled that DeVos’ Rule was contrary to the “unambiguous mandate” of the CARES Act. She noted that “Congress expressed a clear and unambiguous preference for apportioning funding to private schools based on the number of children from low-income families.” She further wrote that contrary to the Rule, the Cares Act “cannot mean the opposite of what it says.” Judge Friedrich struck down the law nationwide. The U.S. Education Department has since posted on its website an update acknowledging that the rule is no longer in effect because of her decision.
Connecticut received $111 million in ESSER funds and $27.8 in GEER funding. The GEER funds have not been distributed to school districts yet. To obtain ESSER funds, Connecticut school districts were required to submit applications to the State Department of Education, based on the erroneous calculations in DeVos’ illegal rule.
The State Department of Education should now guide districts on how to recoup this illegally diverted money. Time is of the essence as school districts struggle to provide vital services to public school students during this ongoing crisis.