National Center for Youth Law

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Lawsuit Challenges Unlawful DeVos Rule Jeopardizing Low Income Students with Disabilities

August 10, 2020

Contact: Patty Guinto,

Baltimore, MD – The Council of Parent Attorneys and Advocates (COPAA) filed a lawsuit today against Secretary Betsy DeVos and the U.S. Department of Education (ED) for attempting to siphon emergency federal COVID-19 funding away from K – 12 public schools and the students they serve. The suit, filed by the National Center for Youth Law and Morrison & Foerster on behalf of COPAA, alleges Secretary Devos’s rule – entitled “Providing Equitable Services to Students and Teachers in Non-public Schools” (the Rule) – is invalid.

If not stopped, the Rule will impose new requirements and restrictions on how local school districts can distribute the emergency funds that Congress provided to support public schools during the pandemic, even though those conditions appear nowhere in the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Under Secretary DeVos’s Rule, up to $1.5 billion could be diverted away from public school students. This unlawful rule will have devastating effects on the ability of public schools to safely and effectively educate their students during the pandemic—particularly students of color, low-income students, and students with disabilities, all of whom are also disproportionately impacted by COVID-19.

“It is reprehensible that this administration is pressuring schools to open quickly while simultaneously taking away the very resources that would allow them to do so safely and effectively,” said Selene Almazan, legal director for COPAA. “As America’s schools, communities and families are in the midst of an economic and health crisis, now is not the time to deprive millions of public school children the education services they need — including students with disabilities, a population that Congress specifically intended the CARES Act funds to benefit.”

Public schools have incurred huge costs in responding to the COVID-19 pandemic, including spending on distance learning technology, the cost of making meals available to low-income students and finding innovative solutions to providing services to students with disabilities. At the same time, state governments have less tax revenue with which to fund public schools. States have already modified their public education budgets based on the CARES Act or signaled they would rely on the CARES Act funds to fill budgetary gaps created by the pandemic. If the Rule goes into effect, it will leave holes in state and local budgets just as the next school year begins.

Secretary DeVos’s Rule, however, would shift money from public school students to private school students. But Congress made provisions for private schools in other portions of the CARES Act. For example, private schools that operate as nonprofit organizations or small businesses with 500 or fewer employees — but virtually no public schools — are eligible to participate in the Paycheck Protection Program (“PPP”). Billions of dollars in federal CARES Act money has already been paid as forgivable loans to private primary and secondary schools.

“DeVos’s Rule essentially turns Robin Hood on its head, stealing from the poor to give to the rich,” said Seth Galanter, senior director at the National Center for Youth Law. “In light of the current congressional impasse and mounting costs, public schools can’t afford to have a single dollar diverted, much less $1.5 billion dollars.”

Under the favored formula in DeVos’s Rule, in combination with the federal PPP funds, private school students will end up supported by CARES Act funds totaling between $4.3 billion and $8.1 billion, despite the fact that they comprise no more than 10% of the K-12 students in the United States. Meanwhile, under the same formula, the 90% of the K-12 students in the United States who attend public school will end up with CARES Act funds totaling, at most, $14.4 billion. There is no reason to believe that Congress intended such a substantial disparity in support for public school students.

COPAA is seeking to have DeVos’s Rule set aside under the federal Administrative Procedure Act because it is contrary to Congress’s intent.