Attorney General Nessel Seeks Court Order to Immediately Block DeVos Rule Threatening K-12 Public School Pandemic Relief Funds

July 17, 2020

LANSING – Michigan Attorney General Dana Nessel and California Attorney General Xavier Becerra are now leading an expanded coalition in a court action against a rule issued by U.S. Education Secretary Betsy DeVos that would unfairly limit the ability of public schools to use federal funds provided under the Coronavirus Aid, Relief and Economic Security (CARES) Act.  

The lawsuit, announced July 7, now includes Hawaii, Maryland, Pennsylvania and several local jurisdictions. The expanded coalition will file today for a preliminary injunction to immediately block U.S. Department of Education Secretary Betsy DeVos’s unlawful attempt to siphon pandemic relief funds away from K-12 public schools while litigation is ongoing. Today’s action comes in light of efforts by Secretary DeVos to undermine congressional intent through the promulgation of regulations that unlawfully reinterpret the CARES Act and run counter to efforts to ensure that public schools have the funds Congress intended, to help tackle the challenges of COVID-19.  

As a result of the interim final rule, at least $16 million in Michigan alone could be diverted from public schools to private institutions — in violation of the requirements established by Congress, the Administrative Procedures Act, and the U.S. Constitution. 

“Our coalition is growing because this fight to hold Betsy DeVos accountable for abusing the Department of Education’s rulemaking power to redirect money to private schools is critically important to ensure CARES Act funds end up exactly where they belong for our students’ education,” said Attorney General Dana Nessel. “We cannot reiterate enough that we are navigating through an unprecedented time in this nation and pursuing her own agenda as the nation’s Secretary of Education by contradicting the very intent of Congress will not be tolerated.” 

The CARES Act was adopted by Congress and signed into law in late March. Among many other things, it allocates $30.75 billion for K-12 schools and higher education in response to the COVID-19 pandemic. A portion – approximately $13.2 billion – is distributed to State Education Agencies (SEAs), such as the Michigan Department of Education, which gets nearly $390 million. SEAs then allocate that money to LEAs, which subsequently distribute money to individual schools.   

CARES Act money is designed to provide support to schools with low-income students, as it is to be allocated based on the amount of Title I funding each state and school district received in the most recent fiscal year.    

Under the CARES Act, private schools are only eligible for funds in certain circumstances in line with established Title I criteria. However, in direct contravention of congressional intent, the U.S. Department of Education’s interim final rule blows up the legislated mechanism by requiring that funds be allocated to private schools based on the total population they serve, instead of the low-income students attending, as provided for by the CARES Act. Because the rule allows private schools — with tuitions more akin to private colleges — to demand these emergency funds, the poorest school districts receive less. 

Building on the lawsuit filed last week, Attorney General Nessel urges the court to immediately enjoin the U.S. Department of Education’s unlawful rule, arguing that it threatens imminent and irreparable harm to Michigan and the other plaintiffs, to our schools, and to students across the country. As a result of the rule, public schools stand to lose significant CARES Act funds at a moment of crisis, directly contrary to the intent of Congress.  

In addition to the arguments made in support of a preliminary injunction, Attorney General Nessel today welcomed the addition of Hawaii, Maryland, and Pennsylvania, as well as the City School District for the City of New York, Chicago Board of Education, Cleveland Municipal School District Board of Education, and the San Francisco Unified School District to the lawsuit coalition. 

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