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DeVos Quits Fight Over COVID-19 Aid to Private Schools After Court Blocks Illegal Education Department Rule

Plaintiffs in NAACP v. DeVos reached an important and final victory on September 25 when U.S. Secretary of Education Betsy DeVos notified state education officials that she will not appeal court rulings invalidating a U.S. Department of Education (USED) regulation requiring public schools to send hundreds of millions of dollars in federal COVID-19 relief funds to private schools. 

The DeVos rule forced public school districts to choose between diverting more funding for private school students than the CARES Act allows or facing onerous restrictions on the use of those funds in their public schools. The illegal rule, which would have required districts to calculate the amount spent on “equitable services” for private schools based on the total number of private school students rather than their enrollment of low-income students, would have dramatically diminished resources urgently needed to support public school students in the coronavirus pandemic. This would have had a particularly disproportionate and harmful effect on students of color, students from low-income families, and other underserved students.

The Learning Policy Institute estimated that public schools across the nation could have lost upwards of $1.3 billion in CARES Act funding under DeVos’ unlawful calculation. 

The plaintiffs in NAACP v. DeVos, including public school families, school districts from across the country, and the NAACP, were represented by the law firm Munger, Tolles & Olson LLP, as well as Education Law Center and the Southern Poverty Law Center. These three organizations collaborate on Public Funds Public Schools (PFPS), a national campaign to ensure that public funds for education are used to maintain, support, and strengthen public schools. The plaintiffs were supported by numerous amici curiae (“friends of the court”), including additional school districts, teachers’ organizations, and state and national education advocacy groups concerned about the illegal rule’s impact on students. 

“We are pleased that Secretary DeVos has decided to stop pursuing this illegal rule, which was designed to further her agenda of funding private schools at the direct expense of our most underserved public school students,” said Tamerlin Godley, a partner at Munger, Tolles & Olson LLP, who argued the case. 

The DeVos rule was invalidated nationwide in early September, when the U.S. District Court for the District of Columbia granted the NAACP plaintiffs’ request for summary judgment. Judge Dabney L. Friedrich stated that “Congress expressed a clear and unambiguous preference for apportioning funding to private schools based on the number of children from low-income families” and that the CARES Act “cannot mean the opposite of what it says.” 

Following the court ruling, Education Law Center and the Southern Poverty Law Center contacted education officers in every state to request they immediately inform public school districts of the ruling, correct any conflicting state guidance, and assist districts in complying with the court’s order. 

In abandoning further legal proceedings, Secretary DeVos’ letter acknowledged that the challenged rule “has not been in effect since the court’s decision on September 4,” and affirmed USED “will enforce the law as the courts have opined.” It also stated definitively that USED “will not appeal.”

“At long last, public schools will have the funds they were entitled to all along,” said Jessica Levin, an attorney at Education Law Center and director of PFPS. “Districts now also have the assurance that they can use that money to meet the urgent needs of their students, without the burden and confusion caused by USED’s unlawful directives.”

“This final step is a victory for public school families, districts and the NAACP, our lead plaintiff in this case,” said Bacardi Jackson, managing attorney for the Southern Poverty Law Center. “This case began when DeVos issued an illegal rule, causing confusion over how the funds should be spent in each district, and it is only befitting that the case would end with her department taking appropriate steps to correct their error by informing all state education agencies of the court order that invalidated her rule. We commend the plaintiffs for their efforts to protect these critical resources for all public schools and the students they serve.” 

More information about NAACP v. DeVos is available here