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Coalition Suing Secretary DeVos Participates in Public Comment Period, Cites Number of Violations

LANSING – As the school year swiftly approaches, a coalition – led by Michigan Attorney General Dana Nessel and California Attorney General Xavier Becerra – currently suing U.S. Secretary of Education Betsy DeVos and her Department of Education has issued a comment letter challenging as unlawful and unconstitutional an interim final rule 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 Department ignored the procedural requirements under the Administrative Procedures Act (APA) that demand “prior to promulgating a rule, an agency must issue a general notice of proposed rulemaking.” The coalition asserts that DeVos and the Department issued the interim final rule effective immediately while bypassing the mandated notice-and-comment procedures, without “good cause” to do so.

“Instead of following the Administrative Procedures Act and providing the public with time to comment prior to issuing an interim final rule, Secretary DeVos and her Department of Education cut corners to pursue her own agenda,” said Nessel. “This coalition will fight this rule at every turn to ensure our students receive exactly what Congress intended for them to have.”

In their letter, filed Friday, nine attorneys general and several local jurisdictions urge the Department to withdraw the interim final rule, citing that it’s unlawful and unconstitutional, and ignores the severe harms the rule imposes on states and school districts, and their students and teachers.

The coalition asserts that the rule does the following:  

  • Exceeds the Department’s authority, is not in accordance with governing law, and violates separation of powers; 
  • Violates the spending clause of the U.S. Constitution; 
  • Violates the APA because it is arbitrary and capricious; and 
  • Violates the APA’s notice-and-comment requirement. 

In the lawsuit, announced July 7 and amended on July 17 to add additional states and school districts, the coalition seeks a preliminary injunction to immediately block DeVos’s unlawful attempt to siphon pandemic relief funds away from K-12 public schools while litigation is ongoing.

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

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 Local Education Agencies (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 Department’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.

The coalition has already urged 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 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.

The plaintiffs have asked the court to hear arguments on the preliminary injunction during the week of Aug. 10.

In submitting this comment letter, Nessel and Becerra are joined by the attorneys general of the District of Columbia, Hawaii, Maine, Maryland, New Mexico, Pennsylvania, and Wisconsin; along with 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.

A copy of Friday’s comment letter is available here.

Exhibit A:

Parts one and two are available here.

Part three is available here.

Part four is available here.