DeVos Privatization Schemes Are Blocked by Courts and Likely to Be Further Blocked by Congress

Betsy DeVos, a lifelong supporter of private and religious schools and the expansion of tax-funded tuition vouchers for private schools, has pursued the privatization of public education throughout her tenure as U.S. Secretary of Education. In recent months DeVos devised a way to divert to private schools some of the funding Congress appropriated for public school CARES Act relief, and this month DeVos has persisted by working with Sen. Ted Cruz to insert her $5 billion Education Freedom Scholarship tuition tax credit program into a new Senate coronavirus relief package.

Famous for disdaining public institutions, DeVos once declared: “Government really sucks.”  Everyone has worried for over three years that Betsy DeVos might succeed in radically expanding school privatization from her perch in the Trump administration, but, despite all the rhetoric, she hasn’t succeeded.  Now her CARES Act initiative has been struck down, and her tuition tax credit scheme is headed nowhere.

Court Permanently Blocks DeVos CARES Act Distribution Favoring Private Schools

In July, Betsy DeVos imposed a binding rule to favor distribution of a significant portion of last spring’s CARES Act relief money to private schools at the expense of the public schools serving the nation’s poorest children.  Last Friday, in NAACP v. DeVos, the third court decision on DeVos’s CARES Act rule in recent weeks, a federal judge permanently blocked DeVos’s plan.

POLITICO’s Michael Stratford explains: “U.S District Judge Dabney Friedrich, an appointee of President Donald Trump, ruled that DeVos ran afoul of the CARES Act when she required public schools to send a greater share of pandemic assistance to private school students than is typically required under federal law.  The judge sided with the NAACP, which had brought the legal challenge against DeVos’ policy, criticizing it as a ploy to divert emergency aid away from needy public schools toward more affluent private-school students.  Several other judges had already preliminarily blocked DeVos’ rule in certain states, but Judge Friedrich’s ruling—which is final—goes further in striking down the entire rule as illegal.  The ruling will apply nationwide.”

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.

Public Funds Public Schools, a coalition including the law firm of Munger Tolles & Olson L.L.P., the Education Law Center, and the Southern Poverty Law Center, represented the plaintiffs in NAACP v. DeVos.  Public Funds Public Schools commented on the ruling: “The court’s ruling grants a nationwide vacatur of the rule, bringing much-needed certainty to public schools across the country that they will have the full amount of CARES Act funds to which they are entitled.”

Along with the NAACP, additional plaintiffs included public school parents from Maryland, North Carolina, Georgia, Arizona, Florida, Tennessee, Nevada, Mississippi, Alabama, and Washington, DC, as well as Broward County Public Schools in Florida, the DeKalb County School District in Georgia, the Denver County School District in Colorado, the Pasadena Unified School District in California, and Stamford Public Schools in Connecticut.

With Sen. Ted Cruz, DeVos Again Pushes for $5 Billion Federal Tuition Tax Credit Program

DeVos’s favorite school privatization scheme—a federal tuition tax credit voucher program DeVos has called “Education Freedom Scholarships” and which she has unsuccessfully tried to insert every year into the federal budget—has now been proposed by Sen. Ted Cruz as part of a new, very meager Senate Republican coronavirus relief bill. Cruz’s idea is already so controversial that it is holding up negotiations on the bill.  You will remember that the House passed the HEROES Act to lay down its bid for $3 trillion in further relief last May 15. The U.S. Senate has not yet agreed to a plan.

On Sunday, the Washington Post‘s Erica Werner explained: “Talks on additional coronavirus relief legislation broke down in August and have remained stalled.  Lawmakers will return to the Capitol on Tuesday (September 8) and leaders in both parties say they hope to reach agreement on a new coronavirus relief bill. But they remain far apart, and it’s unclear whether a deal will be possible. Democrats are unwilling to agree to legislation that spends less than $2 trillion, while Republicans say that figure is too high. Senate GOP leaders have been hoping to try advancing a slimmed-down bill costing about $500 billion, but they’ve struggled to reach agreement even on that. The latest hang-up involves a push by Sen. Ted Cruz (R-Tex.) for a school-choice provision opposed by some fellow Republicans.”

CNN reporters Manu Raju. Phil Mattingly and Ted Barrett describe Cruz’s latest push for the privatization of education: “Cruz’s proposal would essentially provide reimbursement–in full–for donations to state-based nonprofit scholarship funds that help families with tuition and other education expenses for private K-12 schooling.”

No one believes the relief package into which Cruz seeks to insert his tuition tax credits is serious legislation headed toward enactment.  The Washington Post‘s Erica Werner and Laura Meckler explain: “The $5 billion tax credit proposal has long been championed by DeVos, and President Trump has offered his support for school choice as part of his reelection campaign. Now the measure is being pushed behind the scenes by Sen. Ted Cruz…. But his move is opposed by a number of other members of the Senate Republican conference—some on the merits, others for strategic reasons.  They will need to resolve the impasse to finalize the legislation.  The bill is meant to be a negotiating tool with Democrats, though a previous measure with a similar goal went nowhere last month.  Senate Republicans are seeking to pass a targeted bill as a way of countering a bill recently passed by House Democrats that sought to boost funding for the U.S. Postal Service.”

In the U.S. House of Representatives, Nancy Pelosi has staunchly stood behind the need for a much more generous COVID-19 relief package than the Senate has been willing to consider. Pelosi has insisted, for example, on funding significant relief for the unemployed and at the same time alleviating a deepening fiscal crisis in state and local governments. It is impossible to believe the Democratic majority in the U.S. House of Representatives will ever buy into the skinniest possible Senate proposal that not only leaves out desperately needed coronavirus relief but also privatizes public education. Although Betsy DeVos is known for her persistent devotion to school choice, the U.S. House has been equally persistent in rejecting DeVos’s school privatization overtures.