WASHINGTON (CN) — After a Trump-appointed judge shredded the rule for trampling congressional intent, experts called the government’s attempted diversion of coronavirus relief to private schools an exploitive political move.
U.S. District Judge Dabney Friedrich was not the first to block private schools from accessing the $13 billion earmarked for K-12 education in the CARES Act. Going further than the judges who temporarily blocked the policy, however, Friedrich ruled against Education Secretary Betsey DeVos at summary judgment late Friday, saying her rule was void because it violated the unambiguous mandate of the CARES Act to disburse the money with a focus on low-income students.
“I’m sure she saw the chaos of the CARES Act and of Covid as an opportunity and she was going to try to exploit that opportunity,” Maria Ferguson, executive director of the Center on Education Policy at George Washington University, said in an interview Tuesday.
Spurring several lawsuits across the country, DeVos had sought to allocate the relief funds intended for public schools to private schools based on total populations at the private schools, rather than their number of low-income students, as outlined in the CARES Act.
An attorney for the NAACP and the Southern Poverty Law Center who argued Friday before Judge Friedrich in Washington said the case’s swift adjudication helps ensure that public school districts don’t lose more time in meeting the urgent needs of their students.
“This decision sends a clear signal that Secretary DeVos cannot use illegal means to advance her agenda of funneling scarce public resources to private education, to the detriment of our highest need students in public schools across the country,” Tamerlin Godley, a partner at Munger, Tolles and Olson, said in a statement Friday.
Reaching a similar conclusion last month in California, U.S. District Judge James Donato railed against what he called “‘interpretive jiggery-pokery’ in the extreme.”
Friedrich meanwhile said Congress could have adopted the equal-funding formula developed by DeVos if it wanted, but instead opted to hand out the relief according to the formula found in Title I.
“In enacting the education funding provisions of the CARES Act, Congress spoke with a clear voice,” Friedrich wrote.
The judge noted further that Congress could have given DeVos discretion for the allocation of funds as it did with higher education relief, but instead spelled out its intent to rely on the Title I method of funding schools based on the percentage of low-income students.
“Congress expressed a clear and unambiguous preference for apportioning funding to private schools based on the number of children from low-income families, even though the Department’s chosen alternative of equal funding was readily available at the time of drafting,” Friedrich wrote.
“In the end, it is difficult to imagine how Congress could have been clearer,” the judge concluded.
DeVos failed to sway the court that private schools required Washington’s aid to survive the blow of the pandemic the same as public schools.
Ferguson, with the Center on Education Policy, lambasted the logic of the Justice Department saying that private schools are losing funding as parents withdraw their students and stop paying tuition, while public school parents who seek out alternative schooling options for their children continue to pay taxes.
“When you go to a private school you’re not hurting financially. You’re paying for your tuition,” Ferguson said. “So that in itself makes what [DeVos] is saying hard to defend.”
Ferguson added that Title I could not be more explicit about federal funds being intended for low-income students.
Nora Gordon, an associate professor of public policy at Georgetown University and a leading expert on federal education spending, agreed Congress left no room for doubt when working the term “equitable services” from Title I into the CARE Act.
“‘Equitable services’ has a very specific meaning in the context of Title I and it has for decades. Congress knew what it meant and the school districts who were trying to receive their CARES allocations knew what it meant also and that’s what the ruling reinforces,” Gordon said in an interview.
Furthermore, the professor noted that private schools cashed in on small business loans provided by Washington.
But Gordon, along with Sarah Reber, a Brookings Institute fellow and an associate professor of public policy at the University of California, Los Angeles, has proposed that Congress step away from Title I to allocate much needed additional Covid-19 relief.
They argue the provision in the Elementary and Secondary Education Act of 1965 — part of President Lyndon B. Johnson’s “war on poverty” — can undermine local flexibility and create confusion about the sanctioned use of federal funds.
“You could come up with other formulas that allocate funds based on child population counts and child poverty counts that would still be progressive in the way that using Title I is, but would avoid some of the arbitrariness associated with the Title I allocations,” Gordon said.
With the school year underway and schools facing unprecedented challenges to keep students safely learning, the Georgetown professor said Congress needs to provide more federal relief on top of the billions provided under the CARES Act to educators today.
“Or yesterday really,” Gordon added.
Ferguson, meanwhile, pointed to the urgent need to focus on the intent of Title I at a time when the pandemic has revealed the longstanding poverty in America’s schools.
“In some ways it almost makes the original intent of the 1965 law and what President Johnson had in mind … more important now because the need for it is just so glaringly apparent,” she said, adding: “Even though it’s been 60-plus years, those inequities, they just still exist.”