Betsy DeVos Ignores Congress: Orders Distribution of CARES Act Dollars to Private Schools Instead of Public Schools Serving Poor Children

On April 30, U.S. Education Secretary Betsy DeVos released informal guidance directing federal Covid-19 stimulus funds to private schools at the expense of the public schools that educate 50 million American children and adolescents.  DeVos is using the pandemic crisis to promote her own agenda supporting the privatization of American public education.  Her recent action also undermines one of the most fundamental purposes of the U.S. Department of Education for which she is responsible.

On Wednesday, the NY Times‘ Erica Green described DeVos responding to criticism from the Council of Chief State School Officers: “Ms. DeVos accused the state education chiefs of having a ‘reflex to share as little as possible with students and teachers outside of their control,’ and said she would draft (a final) rule codifying her position to ‘resolve any issues in plenty of time for the next school year.’ The proposed rule would need to go through a public comment process before it could take effect.”

But the issue is far more complicated than what DeVos claims is public schools’ selfish unwillingness to share.

In the CARES Act, Congress directed the U.S. Department of Education to distribute $13.5 billion to the nation’s public schools according to the principles of the Title I formula.  The Title I formula represents—more than any other policy or program—the very role of the federal government in U.S. public education.  Public schools are created and funded under the 50 state constitutions, but in 1965, when Congress passed the Elementary and Secondary Education Act in the midst of the Civil Rights Movement and Lyndon Johnson’s War on Poverty, the federal purpose was to support the education of impoverished children and confront unequal access to education across the states.

Jack Jennings, founder and retired CEO of the Center on Education Policy, describes the history of Title I: “In 1965, (then President) Johnson found the road map leading to enactment of federal education legislation. His approach was to base federal aid on the number of children from low-income families who lived in a school district. This strategy served two purposes. First, it fit well with the temper of the times. Achieving greater equity and focusing on the effects of poverty and hunger were national issues, and fundamental to the agenda of the Kennedy-Johnson administration. And second, it also made room for a compromise on the religious and private school issue. The Johnson administration proposed providing federal support for education services to poor children who attended private schools, while vesting control over the administration of the services with public school districts.” (Presidents, Congress, and the Public Schools: the Politics of Education Reform, p. 23)

Title I was established to provide extra funds to public school districts serving a large number or large concentration of very poor children, and the law specified that Title I would supplement, not supplant, the services states and school districts were already providing. Public school districts were also to provide federally funded Title I services for poor children enrolled in private or religious schools located in their school districts.

Despite that, in March 2020, Congress charged the U.S. Department of Education with distributing federal CARES Act stimulus funds according to the Title I formula, on April 30, Betsy DeVos’s Department of Education released informal guidance changing the way states and school districts are to distribute CARES Act funding. The Washington Post‘s Laura Meckler reports that DeVos’s new guidance helps private schools at the expense of public schools serving poor children: “Congress allocated roughly $13.5 billion to K-12 schools as part of the CARES Act, a stimulus package meant to mitigate the economic damage from the coronavirus crisis. Most of the funding was to be distributed to elementary and secondary schools based on a formula driven by how many poor children they serve. The formula has long allocated some funding for poor children attending private schools. But in guidance sent out to the states, DeVos said states should use a calculation that takes into account the total number of students private schools serve, not just the number of poor students attending. The result is that millions of dollars that would otherwise assist high poverty schools in the Title I program will instead be shared with private schools, regardless of the economic needs of their families.”

Meckler adds that, on May 15, when the House of Representatives passed the HEROES Act, a more recent Covid-19 stimulus bill, the House overturned DeVos’s new guidance on the distribution of CARES Act dollars to private schools: “Subsequent legislation passed by the House would overturn the DeVos guidance, but that legislation is part of a large aid package whose prospects are unclear.”

The Senate has not yet taken up the HEROES Act. Not satisfied to wait for the Senate, on May 20, three prominent members of Congress wrote directly to Secretary DeVos, condemning her April 30 guidance for distribution of CARES Act dollars to private schools. The letter is signed by Robert C. “Bobby ” Scott, chair of the House Committee on Education and Labor, Rosa. L. DeLauro, chair of the House Appropriations Subcommittee on Labor, Health, Human Services and Related Agencies, and Senator Patty Murray, ranking member of the Senate Health, Education Labor and Pensions Committee.

Representatives Scott and DeLauro and Senator Murray put Betsy DeVos on notice that, “The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), requires local education agencies (local school districts) receiving funds to use a portion of such funds to provide services to low-income students attending private schools that are equitable to services provided to students in public schools in the same manner as under section 1117 of Title I of the Elementary and Secondary Education Act (ESEA).  However, the department broke with statutory requirements of the CARES Act and longstanding precedent of the equitable services provision in section 1117 of ESEA by issuing guidance that directs LEAs to use emergency relief funds for the provision of services to students at private schools regardless of their wealth or residence… The department’s new policy will direct districts to allocate additional resources and services to wealthier private school students, thereby leaving a smaller amount of funds available to serve public school students.”

The letter continues: “Since 1965, Title I-A has served as a vital source of support for disadvantaged students in schools with high concentrations of students from low-income families. An LEA’s (school district’s) Title I-A allocation is determined by a variety of factors, primarily the number and concentration of low-income students within the LEA… LEAs must set aside a share of their Title I-A funds to serve disadvantaged students attending private schools. The amount of the set aside is based on the number of low-income students attending private schools who reside in participating school attendance areas within the LEA attendance area… Simply put, the Department is directing LEAs to provide equitable services in a different manner from that provided under section 1117 of ESEA, in direct contravention of the plain text of the CARES Act.”

Derek Black, a professor of education law at the University of South Carolina, considers the implications of Betsy DeVos’s new attempt to promote her own agenda supporting private and religious education at the expense of public schools: “I’m a scholar of federal education policy and history who has testified before a congressional commission and federal courts in disputes over federal funds. In my view, this new policy runs counter to what Congress has tried to achieve in public education for the past 50 years and it directly contradicts the CARES Act… The relief package specified that the money would go to school districts based on the number of low-income students they serve. Those are children who are eligible for free and reduced-priced meals. Students whose families are below 185% of the official poverty line—which as of 2020 stands at $26,200 per year for a family of four—fall into this category. The department’s new guidance calls for a different method.  Public school systems are being told to share these new federal funds based on the total number of students who attend private schools—rather than the much smaller number of low-income students in these schools.  In other words, public school districts are being told to reserve funds for roughly 6 million total private school students, of which only an estimated 300,000 are low-income children.  By contrast, 52.3% of the nation’s 50 million public school students are low-income.”