DeVos Rule for private schools stopped by judge

U.S Education Secretary Betsy DeVos’ rule directing public schools to change how they allocate CARES Act funding to K-12 private schools is no longer in effect following a federal judge’s order. KASB opposed the “equitable services” rule. 

The CARES Act became law in late March. It directs funding for K-12 schools be distributed based on the Title I formula which serves disadvantaged students. Under that formula, if a public-school district provides “equitable services” to a local private school (such as tutoring or access to technology licenses), those services would only be provided to low-income, private school students. 

In June, DeVos issued an “Interim Final Rule” on equitable services that had the effect of law. It gave school districts some options for allocating CARES Act funding to private schools, including providing the money to private schools based on their total enrollment rather than only on their low-income student count. KASB, the National School Boards Association and other education advocacy groups argued this approach was counter to Congressional intent. 

“To be consistent with both the historical application of equitable services, and to treat public and private schools equitably under the CARES Act, this rulemaking must be revised to ensure that the equitable services share for private schools is determined by poverty rates rather than overall enrollment,” KASB stated.  

In July, the NAACP and several school districts filed a lawsuit challenging the Rule. The state of Washington filed a similar lawsuit. 

On Sept. 4, U.S. District Court Judge Dabney L. Friedrich ruled in favor of the NAACP and its fellow plaintiffs. The judge found that the Rule did indeed contradict Congressional intent regarding distribution of funding to private schools.  

“Congress expressed a clear and unambiguous preference for apportioning funding to private schools based on the number of children from low-income families, even though the Department’s chosen alternative of equal funding was readily available at the time of drafting [the CARES Act]. In the end, it is difficult to imagine how Congress could have been clearer,” Judge Friedrich wrote.   

On Sept. 9 the Department of Education noted in a post on its website that as a result of Judge Friedrich’s ruling the Interim Final Rule “is no longer in effect.” 

In Kansas and nationwide, public schools typically serve many more disadvantaged students than do private schools. The economic impact of the COVID-19 pandemic is sufficiently widespread to prompt school leaders to consider using the CARES Act to help non-Title I schools if the DeVos rule had remained in place. 

Share this post