Advance Notice: Briefs

Judge approves permanent injunction in Nessel’s lawsuit against DeVos over private school funds

By: - November 16, 2020 11:55 am

Secretary of Education Betsy DeVos speaks with state and local leaders from Kentucky, Michigan, and Ohio, in the South Court Auditorium of the Eisenhower Executive Office Building, Thursday, October 3, 2019. | Official White House Photo by Stephanie Chasez via Flickr Public Domain

A district court judge in California has closed a case co-led by Michigan Attorney General Dana Nessel against U.S. Education Secretary Betsy DeVos over the latter’s move to divert some federal COVID-19 relief funding from public to private schools.

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

In July, Nessel and California Attorney General Xavier Becerra partnered in suing DeVos and asked for a preliminary injunction to stop the rule, which they received in late August. 

Judge James Donato in San Francisco took it a step further earlier this month when he approved a permanent injunction, which formally stops the implementation of DeVos’ rule. In Michigan, her interpretation of the CARES Act would have moved $16 million of funding to public schools to private schools.

“The CARES Act is imperative as it provides critical funding for our public schools and the resources teachers need to continue safely teaching our youth,” Nessel said in a statement. “This permanent injunction sends a clear message that the publicly funded CARES Act dollars should be used as Congress intended – to educate our public students, and not to serve the political agendas of a select few.” 

In late September, DeVos wrote in a letter that the department “strongly, but respectfully” disagreed with Donato’s ruling.

“However, we respect the rule of law and will enforce the law as the courts have opined,” DeVos wrote. The Department will not appeal these rulings.”

Per Nessel’s office, Donato’s permanent injunction bars the U.S. Department of Education from: 

  • Making states and local education agencies (LEAs) calculate shares of CARES Act funding for private schools “in a manner inconsistent with Title I’s calculation for equitable services to private schools”
  • Requiring that CARES Act funds supplement other funding sources
  • Limiting CARES Act fund distribution to only public schools that are eligible for or participate in Title I 
  • Taking any adverse action against school districts that relied on the original guidance or interim final rule before the plaintiffs’ preliminary injunction entered.

Attorneys general of Hawaii, Maine, Maryland, New Mexico, Pennsylvania, Wisconsin and the District of Columbia joined Nessel and Becerra’s lawsuit. So did a New York City school district and education boards in Chicago, Cleveland and San Francisco. 

Democratic President-elect Joe Biden is expected to nominate in January an education secretary who does not share DeVos’ affinity for private schools and school choice.

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C.J. Moore
C.J. Moore

C.J. Moore covers the environment and the Capitol. She previously worked at NASA’s Glenn Research Center in Cleveland as a public affairs staff science writer. She also previously covered crop sustainability and coal pollution issues for Great Lakes Echo. In addition, she served as editor in chief at The State News and covered its academics and research beat. She is a journalism graduate student at Michigan State University.