Judge halts federal rule that diverts coronavirus funding to private schools

by | Aug 27, 2020

For the second time in a week, a federal court has blocked a rule issued by the Department of Education requiring public school districts to include private schools (including religious schools) in how they spend their coronavirus relief funding. The court blasted the reasoning of the department, which advanced a final rule in July that seemed to upend language in the CARES Act.

The CARES Act was signed into law in March to provide economic relief in light of the coronavirus pandemic, and it specifies that certain private school allocations are to be made “in the same manner as provided in” the Elementary and Secondary Schools Act of 1965 (ESEA), which bases funding eligibility on the proportion of low-income students. U.S. District Judge Barbara Rothstein rejected claims made by the Department of Education that this funding provision is ambiguous and thus requires an administrative rule to interpret it. “Here,” she writes, “the statute could hardly be less ambiguous.”

In the absence of any actual ambiguity, the court held, the department lacked the authority to advance its rule. The judge’s preliminary injunction bars the department from implementing it. Her order explains how diverting resources from public schools in the manner they propose greatly harms the students who most need it. Here is an excerpt:

The nature of this pandemic is that its consequences have fallen most heavily on the nation’s most vulnerable populations, including its neediest students. The funding provided throughout the CARES Act, and in particular to schools, is desperately and urgently needed to provide some measure of relief from the pandemic’s harms, many of which cannot be undone. Congress, in its wisdom and without equivocation, determined that funding to schools should be distributed according to the same formula found in Section 1117 of the ESEA; to allow otherwise under the guise of a manufactured ambiguity runs counter to the [Administrative Procedures Act] and to Congressional intent.

A more recent bill introduced in the U.S. Senate (the HEALS Act) includes language that would redirect new coronavirus relief dollars from public to private schools, a provision opposed by BJC and other religious liberty advocates. In an August 4, 2020, letter to Senate leaders,  a group of religious organizations noted that private schools were already eligible for relief under the PPP program that was not available to public schools. “In an unprecedented economic crisis when Congress is providing relief to the private and public sectors,” they write, “the needs of the public sector should not be shuffled aside to allow the private sector to double dip in receiving relief provided through our tax dollars.”

See my earlier coverage of that letter here.