Judge Grants Md. Request for Injunction on Federal Aid to Private Schools

Education Secretary Betsy DeVos visits Detroit Edison Public School Academy last September. Photo by Allison Donahue/Michigan Advance

A federal judge granted a request from Maryland and other states to temporarily halt Education Secretary Betsy DeVos’ implementation of a rule requiring K-12 public schools to share CARES Act relief funding with private schools.

Judge James Donato, who presides over California’s U.S. District Court Northern District, granted the preliminary injunction late Wednesday.

A section of the CARES Act passed in March by Congress stipulates that public school districts share coronavirus relief funding with low-income students at private schools within the same district.

DeVos in June issued a rule that interpreted the CARES Act as saying aid can’t be restricted to just poor private school students — all are eligible.

In July, Michigan Attorney General Dana Nessel (D) and California Attorney General Xavier Becerra (D) partnered in suing DeVos and asked for a preliminary injunction to stop the rule. Maryland Attorney General Brian E. Frosh (D) and attorneys general of Hawaii, Maine, New Mexico, Pennsylvania, Wisconsin and the District of Columbia joined their lawsuit, along with a New York City school district and education boards in Chicago, Cleveland and San Francisco.

They argued that DeVos’ rule strips public schools of crucial federal funding provided under the CARES Act.

The court heard oral argument on the coalition’s preliminary injunction request on Aug. 18.

DeVos’ defense argued nothing in the law Congress passed suggests private school districts shouldn’t receive funding. The language of the CARES Act is ambiguous in that area, DeVos said. The Education secretary has been a longtime funder of private schools and school choice efforts both in Michigan and across the country.

Donato, an appointee of President Obama’s, rejected that argument. In his 15-page order, the judge said the coalition’s case has merit to proceed because the language of the CARES Act is “familiar and uncomplicated.”

“The problem for the Department is that it cannot make it past step one, which asks whether the statute is ambiguous. When Congress has spoken clearly … ‘that is the end of the matter,’” Donato wrote, referencing the Chevron doctrine, a principle that tells the courts to defer to a federal agency’s interpretation of an unclear statute given to the agency by Congress.

Donato further wrote that “an executive agency like the Department has no authority to rewrite Congress’s plain and unambiguous commands” under the guise of interpretation.

The plaintiffs also proved the rule posed a “likelihood of irreparable harm” to public school districts and the department didn’t clearly dispute that, Donato wrote. He also agreed with the plaintiffs’ argument that private schools have had access to Paycheck Protection Program (PPP) funding.

In a statement, Frosh hailed the judge’s temporary injunction, and called DeVos’ interpretation of the congressional legislation “unlawful.”

“In the midst of a global pandemic, with schools struggling to provide students with essential learning tools and equipment, Congress dedicated funding to assist in meeting the educational needs of millions of children attending public schools,” Frosh said. “In the words of the Court, the intent of the CARES Act was ‘plain as day.’ Secretary DeVos has repeatedly demonstrated a preference for private, for-profit education over the needs of publicly-educated students. We are pleased the Court has put a halt to her efforts.”

The plaintiffs and defense, plus their lawyers and the judge, will meet on Sept. 17 to decide how the case will proceed, according to the court.

C.J. Moore is a reporter with the Michigan Advance, where portions of this article first appeared. Josh Kurtz of Maryland Matters contributed to this report.