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Judge Temporarily Blocks DeVos From Diverting Pandemic Aid to Private Schools

A federal judge on Wednesday temporarily blocked Education Secretary Betsy DeVos from making seven states and five cities send millions of dollars in pandemic relief aid from public to private schools.

SAN FRANCISCO (CN) — A federal judge on Wednesday temporarily blocked Education Secretary Betsy DeVos from making seven states and five cities send millions of dollars in pandemic relief aid from public to private schools.

U.S. District Judge James Donato found the Education Department’s July 1 rule that directs public school districts to share emergency coronavirus relief grants with private schools under a more generous formula than what is required under Title I undermines the will of Congress.

“An executive agency like the Department has no authority to rewrite Congress’s plain and unambiguous commands under the guise of interpretation,” Donato wrote in a 15-page ruling Wednesday night.

Joined by seven states, four school districts and the District of Columbia, Michigan sued DeVos last month over the new policy that requires sharing emergency funds with private schools based on the number of students at each private school, rather than the traditional Title I formula based on the number of low-income students at risk of poor academic performance in each private school.

Congress and President Donald Trump approved the $2 trillion Coronavirus Aid, Relief, and Economic Security Act in late March and set aside nearly $31 billion for education, including $16 billion for K-12 learning. The law directs the Education Department to distribute funds “in the same manner” as Title I formula grants, created by the Elementary and Secondary Education Act of 1965.

But the Education Department maintains that using that Title I formula to dole out CARES Act funding would contradict Congress’s command that the funding be provided equitably to all students.

Donato rejected the department’s argument that it needed to issue a rule to clear up a “critical ambiguity” in the CARES Act, which states that emergency funds should be allocated “in the same manner” as Title 1 formula grants.

“The Department’s conclusion that ‘in the same manner’ does not mean ‘in the same manner’ invites immediate doubts,” Donato wrote.

Channeling the iconic words of the late Supreme Court Justice Antoin Scalia from his 2012 dissenting opinion in Maryland v. King, Donato dismissed the Education Department’s reading of the CARES Act as “’interpretive jiggery-pokery’ in the extreme.’”

Because Congress specified the exact formula for distributing pandemic-relief aid to non-public schools, the Education Department has no power to impose its own conditions, Donato concluded.

“The Department went well beyond its statutory authority by trying to replace the share formula mandated by Congress in Section 18005(a) [of the CARES Act] with one of its own choosing,” Donato wrote.

The judge also found states and school districts who sued over the policy were more likely to suffer irreparable harm without a preliminary injunction. He cited evidence that Michigan public schools would have to divert $21.6 million to private schools under the department’s rule, four times more than it would have under the Title I formula.

Losing $16.5 million in funds would be equivalent to laying off 466 public school teachers in Flint, Michigan. It would also force Grand Rapids, Michigan to lose 33% of the emergency funds it expected to receive through the CARES Act.

Wisconsin said it would have to choose between diverting over $4 million of CARES Act funding to private schools or abandoning district-wide coronavirus preparations such as sanitizing school buses.

Donato acknowledged that providing some aid to private schools is in the public interest, and he said Congress provided for that in the CARES Act by requiring that such aid be distributed under the same formula as provided for under Title I. The judge also noted that private schools have had access to additional funding in the form of forgivable loans through the Paycheck Protection Program created by the CARES Act.

The judge concluded there is “a strong public interest in safeguarding our nation’s public schools from the pandemic, and giving school districts access to the funds that Congress authorized for this very purpose.”

The preliminary injunction will only apply to plaintiffs who sued DeVos over the policy.

The plaintiffs include California, Maine, Michigan, New Mexico, Wisconsin, Hawaii, Maryland, Pennsylvania, Washington D.C., the New York City Board of Education, Chicago Board of Education, Cleveland Board of Education and San Francisco Unified School District.

California Attorney General Xavier Becerra applauded the court’s decision in a statement Wednesday night.

“This decision is a major victory for our state and will help school districts retain the flexibility they need right now to confront the unprecedented challenges of the coronavirus,” Becerra said.

The U.S. Education Department and Michigan Attorney General Dana Nessel’s office did not immediately return emails requesting comment Wednesday evening.

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