Attorney General Becerra Leads Multistate Lawsuit Against Secretary DeVos’ Attempt to Siphon Pandemic Relief Funds Away from Public Schools

Interim final rule threatens tens of millions of dollars in California alone meant to help K-12 public schools confront the effects of COVID-19 

SACRAMENTO – California Attorney General Xavier Becerra and Michigan Attorney General Dana Nessel are today leading a coalition of six attorneys general in a lawsuit against U.S. Department of Education (Department) Secretary Betsy DeVos’ unlawful attempt to siphon pandemic relief funds away from K-12 public schools. The lawsuit follows the latest effort by Secretary DeVos to undermine congressional intent through the promulgation of regulations that unlawfully reinterpret the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and run counter to efforts to ensure that students and schools with demonstrated financial need get the resources they have been promised. As a result of the interim final rule, tens of millions of dollars in California alone could be diverted away from taxpayer-funded public schools in our poorest school districts to private institutions — in violation of the requirements established by Congress, the Administrative Procedure Act, and the U.S. Constitution.

“Again, and again, the Trump Administration takes action to steal from the poor and give to the rich,” said Attorney General Becerra. “Whether it’s President Trump or Secretary DeVos, we won’t stand by when the education of our children or the rule of law is under threat. Congress set clear parameters on how to spend this money in order to confront the devastating effects of a pandemic on our schools. We’re going to court to make sure it ends up where it’s needed — the futures of our children are at stake.” 

“This pandemic has exacerbated the inequities that impact our most vulnerable students, and our public schools need every last dollar to safely and effectively resume learning,” said State Superintendent of Public Instruction Tony Thurmond. “We fully support this legal action because we agree it is unconscionable to divert funds from the students who need these resources the most.”

On March 27, 2020, Congress enacted the CARES Act in response to the ongoing pandemic and its impacts across the country. Under the act, Secretary DeVos is required to allocate funding to help schools prevent, prepare for, and respond to COVID-19. As part of the CARES Act, Congress set forth a formula, through the Elementary and Secondary School Emergency Relief Fund, for the distribution of $13.2 billion in aid to K-12 schools nationwide — with about $1.5 billion for public schools in California. As part of the act, aid to K-12 schools is required to be distributed in line with Title I of the Elementary and Secondary Education Act of 1965 (Title I). Title I funds are generally aimed at aiding children from low-income families across the country. Under the CARES Act, private schools are only eligible for funds in certain circumstances in line with Title I criteria. However, in direct contravention of Congressional intent, the Department’s interim final rule blows up the legislated mechanism by requiring the inclusion of private schools based on the total population they serve, instead of income as dictated by the CARES Act. Moreover, the Department admits that this rule allows private schools — with tuitions more akin to private colleges — to demand these emergency funds, leaving the poorest school districts with less. In the lawsuit, the coalition asserts that the Department’s interim final rule unlawfully exceeds its authority, undermines Congressional intent, fails to adequately justify its decision in breach of the Administrative Procedure Act, and violates the U.S. Constitution. 

Attorney General Becerra is committed to protecting the rights of students in California and across the country. In June, the Attorney General filed suit to challenge Secretary DeVos’ unlawful new rule that weakens protections for survivors of sexual violence in schools. In April, he opposed a federal proposal that would create loopholes that favor high sodium foods like pizza, french fries, and burgers in school meals. Last year, Attorney General Becerra secured a historic desegregation agreement with the Sausalito Marin City School District. He also reached an agreement with the Stockton Unified School District and its police department to address discriminatory treatment of minority students and students with disabilities.

In filing the lawsuit, Attorney General Becerra is joined by the attorneys general of Michigan, Maine, New Mexico, Wisconsin, and the District of Columbia.

A copy of the lawsuit is available here.