SAN FRANCISCO (CN) — Accusing Education Secretary Betsy DeVos of being a “Reverse Robin Hood,” a Michigan deputy attorney general urged a federal judge Tuesday to block the Education Department’s plan for diverting pandemic relief funds from public to private schools.
“Secretary DeVos pulls a reverse Robin Hood, taking from the poor and giving to the rich,” Michigan Assistant Attorney General Neil Giovanatti argued in a virtual court hearing Tuesday.
Joined by seven states, four school districts and the District of Columbia, Michigan sued DeVos last month over a July 1 rule that directs local public education agencies to dole out emergency funds to private schools based on the number of students at each 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 CARES Act in late March and set aside nearly $31 billion for education, including $16 billion for K-12 learning.
The plaintiffs argue DeVos lacks authority to issue a rule dictating how the money should be allocated. They say the rule defies the will of Congress and will result in public schools losing over $150 million in emergency coronavirus relief aid.
Defending the Education Department’s policy, Justice Department lawyer William Kerwin Lane III argued the rule comports with Congress’s mandate that funds be equitably distributed to both public and private schools.
Congress directed 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 using the Title I formula to dole out CARES Act funding would contradict Congress’s command that the funding be provided equitably to all schools, Lane argued.
“Congress made clear that emergency funds were to be made available to both public and private schools,” Lane said.
U.S. District Judge James Donato did not buy arguments that the CARES Act was unclear on how the money should be allocated. The law states that public school districts must provide funding to private schools “in the same manner” as that specified for Title I.
“What’s ambiguous about that?” Donato asked. “I’m having trouble figuring out how that is unclear in any way.”
Donato further noted that Congress usually makes it obvious when it wants the executive branch to issue rules based on its laws.
“You know when Congress wants the secretary to do rule-making, it invites the secretary to do so,” Donato said.
Lane replied that other federal laws give the secretary broad rule-making authority, especially when such rules are needed to clear up ambiguities.
“The funds have to be spent in a certain way through a formula grant,” Lane said. “That has to be interpreted.”
Turning to the issue of irreparable harm, Giovanatti said public schools are in a far worse position than private schools at this time. Public schools are struggling to pay for protective gear and enhanced cleaning for classrooms and school buses. They also need to provide technology to low-income students for distance learning. These efforts are necessary to curb the spread of Covid-19 and support public health and learning, he added. The dearth of funding for public schools to meet those demands justifies the need for a preliminary injunction, he argued.
Unlike public schools, private schools are also eligible to receive forgivable loans through the CARES Act’s Paycheck Protection Program for private businesses, giving them an alternative path to get relief, which many have successfully obtained, Giovanatti said.
“PP Program provides significant funding to private schools that public schools do not have access to,” he insisted.
Lane countered that public schools also have exclusive access to a large source of capital — taxpayer funds.
“A private school parent may decide not to pay tuition,” Lane said. “A public school parent can’t decide not to pay taxes. There is more support in some ways for public schools.”
Lane closed by saying the department does not seek to benefit private schools at the expense of public schools. Rather, it seeks to ensure that fair and equitable relief is provided to benefit children at all schools, regardless of whether they are public or private.
After about an hour of debate, Donato took the arguments under submission.
California, Maine, New Mexico, Wisconsin, Hawaii, Maryland, Pennsylvania, the New York City Board of Education, Chicago Board of Education, Cleveland Board of Education and San Francisco Unified School District joined Michigan and the District of Columbia as plaintiffs in the lawsuit.