Second Judge Blocks Flow of CARES Act Dollars to Private Schools. Will Public Schools Ever See the Money Congress Intended for Them?

While the Republican Party announced the themes of the Republican Convention—“Monday is ‘Land of Promise,’ Tuesday is ‘Land of Opportunity,’ Wednesday is ‘Land of Heroes’ and Thursday is ‘Land of Greatness.'”—the Convention instead dramatized a very old theme: the difference between appearance and reality.  Producers, including people from The Apprentice, put together a spectacular show draped in flags. Their purpose: to distract, distort, and dissemble.

The Convention hardly touched on education policy. But last night in his acceptance speech, the President claimed he will “expand charter schools and provide school choice for every family in America.” Donald Trump Jr. and Sen. Tim Scott, (R-SC) also extolled school choice as the future of education, even as, ironically, President Trump himself and Secretary of Education Betsy DeVos are demanding that the nation’s 90,000 public schools reopen as the only path to getting America’s parents back to work. Trump and DeVos certainly haven’t been counting on their favorite patchwork of charter schools and private schools to accomplish their systemic goal. The convention’s primary education speaker, Rebecca Friedrichs, the lead plaintiff in an anti-teachers union case called Friedrichs v. California Teachers Association, not surprisingly, attacked teachers unions. Although she claimed that the unions “are subverting our republic, so they undermine educational excellence, morality, law and order,” you will remember that instead a wave of #Red4Ed strikes during 2018-2019 pushed states like West Virginia and Oklahoma to increase school funding at least a little bit and forced Los Angeles, Oakland, and Chicago to address unreasonable conditions including class sizes of 40 students and a dearth of school counselors in public schools serving concentrations of our nation’s poorest students.

While the Republicans held their convention, Betsy DeVos herself wasn’t having such a good week. She was left off the Convention agenda, and on Tuesday, the Savannah Morning News reported that she visited a reopened public school in Forsyth County, Georgia, where she made a speech: “I think it’s been good that schools are committed to reopening… I know there have been a couple of schools that have had more incidences of students with the virus.  The CDC has been very helpful in providing a lot of information and recommendations for how to go about going back to school., and we highly suggest referencing them.” The newspaper countered DeVos’s comment with an analysis by Georgia State University public health professor, Dr. Harry J. Heiman: “According to the White House Coronavirus Taskforce, we are the second worst state in the country for coronavirus transmission… To suggest that not having a mask mandate is a responsible approach, especially for older students, reflects Secretary DeVos’ lack of understanding about both CDC guidelines and the measures necessary to ensure the health and safety of students, teachers, and staff.”

And on Monday, a Florida judge blocked a requirement announced on July 6 by Florida Education Commissioner Richard Corcoran that public schools reopen five days a week for any families who do not opt for virtual learning.  The Washington Post‘s Valerie Strauss reports that Corcoran threatened any districts refusing to reopen with a loss of state funding.  Trump and DeVos’s pressure on governors like Florida’s Ron DeSantis, has in this case created confusion just as schools are trying to manage the complexities of educating children in the midst of an uncontrolled pandemic.  Strauss quotes Orange County school board member Karen Castor Dentel: “We were under threat of losing our funding and forced to develop models that are illogical and not based on what’s best for kids.  But we had to go forward…. I wish the ruling came sooner.  Not just that our kids are back in school but in the whole planning stages.  We were planning another model that was developmentally and educationally sound and we had to scrap that.”  And to add more confusion: DeSantis says he intends to appeal the judge’s ruling.

But the most important public education news is that the second judge this week has now blocked Betsy DeVos’s binding guidance that drove school districts to set aside more than expected federal CARES Act dollars for private schools.

Politico‘s Michael Stratford reports: “A federal judge in California on Wednesday halted Education Secretary Betsy DeVos’ effort to boost emergency coronavirus relief for private school students. The court ruling blocks DeVos from implementing or enforcing her rule in at least eight states and some of the nation’s largest public school districts. The secretary’s policy requires public school districts  to send a greater share of their CARES Act… pandemic assistance funding to private school students than is typically required under federal law.  U.S. District Judge James Donato’s order prevents DeVos from carrying out her policy in a large swath of the country: Michigan, California, Hawaii, Maine, Maryland, New Mexico, Pennsylvania, Wisconsin, the District of Columbia as well as for public school districts in New York City, Chicago, Cleveland and San Francisco.”

Just last Friday, another federal judge in Washington state, U.S. District Court Judge Barbara J. Rothstein, issued a similar preliminary injunction blocking Betsy DeVos’s binding guidance that federal CARES Act dollars be diverted from the public schools serving poor children to cover the educational needs of students in private schools regardless of the private school students’ family income.

In the statutory language of the CARES Act, Congress directed that CARES Act public education relief be distributed in accordance with the method of the Title I Formula, which awards federal funds to supplement educational programming in public school districts serving concentrations of low-income children. Public school districts receiving Title I dollars are also expected to provide Title I services to impoverished students attending the private schools located within their district boundaries. In the binding guidance she imposed in July, DeVos demanded that per-pupil CARES Act relief for private schools be based on each private school’s full enrollment, not merely on the number of the private school students who qualify for additional services because their families are living below 185 percent of the federal poverty line.

Education Week‘s Andrew Ujifusa elaborates on the meaning of Betsy DeVos’s binding rule, whose enforcement two federal district court judges have now blocked: “The Education Department’s interim final rule, publicized in June and formally issued in July, pushes school districts to reserve money under the CARES Act, the federal coronavirus stimulus plan, for services to all local private school students, irrespective of their backgrounds. That represents a major departure from how education law typically governs that arrangement, in which federal money for what’s known as ‘equitable services’ goes to disadvantaged, at-risk private school students.”

Stratford explores what this week’s court rulings will mean: “The pair of rulings amounts to a major setback for DeVos as she seeks to oversee the roughly $16 billion pot of emergency assistance Congress laid out for K-12 schools in the CARES Act in March… The Trump administration argues that it has the authority to create policy dictating public distribution of the funding to private school students because the CARES Act is ambiguous on that point.  But the two judges disagree… Donato ruled that DeVos’ policy is likely to be struck down because she lacks the legal authority to impose her own conditions on coronavirus relief funding for K-12 schools. The judge said Congress’ intent ‘is plain as day’ for how CARES Act funding should be distributed to schools. The judge also said the coronavirus relief law ‘unambiguously’ instructs the funding to be distributed to private school students in the typical manner under federal law based on the number of low-income students.”

For good reason, public school districts are celebrating these two court decisions blocking DeVos’s action to assist private schools at public school expense. But many serious questions remain. The money Congress awarded last March was supposed to enhance learning opportunities for low income students as schools suddenly shut down. The Cares Act relief is the only federal coronavirus assistance Congress has passed for school districts, and the assumption has been that any dollars left from last spring would help school districts plan for this fall. How much of the money that was sent to private schools has already been spent? Is it even possible to recover all of the funding the judges now say was illegally sent to private schools? How much can be recovered for the public school districts that desperately need it?

Both Judge Rothstein in Washington state and Judge Donato in California blocked enforcement of DeVos’ binding guidance with preliminary injunctions while litigation proceeds. How long will further court deliberations delay the resolution of the issue?  Will these cases move through the courts in time for school districts to use the money for safely opening schools this fall?  Will Betsy DeVos and the U.S. Department of Education appeal any final federal court decision if it invalidates the rule she issued in July?  If courts eventually throw out DeVos’s rule in the states and school districts represented in these cases, will DeVos’s binding guidance eventually stop being enforced for other states and districts? Schools need money now to reconfigure ventilation systems and hire additional required bus drivers to add bus routes for the purpose of keeping buses less crowded.  And they need additional federal assistance to prevent the layoffs of teachers, counselors, and special education aides right now as state allocations for school funding  are collapsing in the recession.

In this Republican Convention week, as President Trump and Mike Pence formally launched their campaign for a second term, the Trump administration has politicized and failed to contain the COVID-19 pandemic. Despite that we all know children would benefit from being in class, in-person with with their teachers and their peers, public schools in most places are opening on-line only, because the virus is uncontained.  Betsy DeVos and the Department of Education have created confusion about the availability of CARES Act relief, and the Trump administration and the Republican U.S. Senate have shown no propensity to provide added federal assistance unless school districts agree to reopen in-person for the fall semester.

While Republicans threw a splashy party this week to distract, distort and dissemble, most public schools remain closed and Trump administration policy is chaotic and confused.