Nessel sues DeVos for ‘unlawfully’ splitting COVID-19 funds between public, private schools

Education Secretary Betsy DeVos visits Detroit Edison Public School Academy, Sept. 20, 2019 | Allison Donahue

Attorney General Dana Nessel announced Tuesday she is leading a coalition of attorneys general in suing U.S. Education Secretary Betsy DeVos for her rule requiring public and private schools to split federal funds provided under the Coronavirus Aid, Relief and Economic Security (CARES) Act, regardless of schools’ economic needs.

“We cannot and will not sit on the sidelines while federal funding specifically allocated based on low-income status is allowed to be reallocated by counting students who have privileges and resources already,” Nessel said at a press conference Tuesday afternoon.

Gov. Gretchen Whitmer and Attorney General Dana Nessel | Andrew Roth

Nessel and California Attorney General Xavier Becerra filed a complaint for declaratory and injunctive relief in the U.S. District Court for the Northern District of California on Tuesday.

DeVos, a West Michigan native and school choice champion, issued the ruling on July 1. 

“Michigan kids simply cannot afford for Betsy DeVos to play politics with their education,” Nessel said. 

According to Nessel, Michigan public schools could lose out on at least $16 million because of DeVos’ interpretation of the COVID-19 relief package.

The CARES Act, which was adopted by Congress and signed into law in March, allocated nearly $31 billion to K-12 schools and higher education in response to the COVID-19 pandemic. The Michigan Department of Education receives about nearly $390 million of those federal funds. 

Under the CARES Act, districts must provide private school students with equitable services in the same manner as required under Title I of the Elementary and Secondary Education Act, which requires districts to allocate money based on the number of low-income students in private schools. 

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Nessel said DeVos’ rule “ignores plain language” in the CARES Act by distributing the relief funds based on the total number of students without consideration of financial need. 

The CARES Act money is distributed to schools for COVID-19 related relief, such as personal protective equipment and technology for remote learning. 

“The CARES Act dollars are designed to provide support to schools in low-income areas, but Betsy DeVos and the Trump administration have a different plan. Under their new rule, private schools in affluent districts will receive services that Congress intended for disadvantaged students. This isn’t how it should work,” Whitmer said. 

Some of Michigan’s urban public schools are at risk of losing out on millions of dollars in federal funding due to the rule, Nessel said. Grand Rapids Public Schools and Detroit Public Schools Community District could lose $2.6 million each and Flint Public Schools could lose $1.4 million.

“Unfortunately, Michigan, and especially Detroit, is all too familiar with the devastating impact the DeVos family has had on public education,” state Sen. Betty Jean Alexander (D-Detroit) said in a statement. “Our students have suffered because the careless expansion of charter schools has failed to provide quality schooling or any kind of accountability for that, so much so that we had to sue the state over a right to literacy. Betsy DeVos’s policies and those who force them upon us have been at the core of this decline.”

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This battle over federal funding is coming at a time when Michigan doesn’t have any money to spare in its own School Aid Fund (SAF).

The SAF — which primarily funds K-12 education — is estimated to fall short by $1.2 billion, which would be a cut of about $650 per student. For the 2021 fiscal year starting Oct. 1, the School Aid Fund is expected to see another $1.1 billion shortfall. 

Whitmer signed a supplemental spending plan for the Fiscal Year 2020 budget last week, which included $512 million of federal funds to schools, $53 million for hazard pay for teachers, $200 million to universities and community colleges and $150 million to local governments. 

“For the first time ever, we’ve been moving toward a school funding formula that is based on equity and based on science,” Whitmer said Tuesday. “We must continue improving our education system, whether it’s in person or not.”

President Donald Trump hosted a number of school reopening-related events Tuesday that included DeVos and first lady Melania Trump, where officials pushed for schools to fully reopen despite the ongoing pandemic. 

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During a panel discussion, DeVos urged other states to consider reopening plans similar to Florida’s plan, which requires all schools to be open to all students for at least five days a week. Florida is one of the states that has seen one of the biggest COVID-10 spikes in recent weeks.

Trump also tweeted on Monday: “SCHOOLS MUST OPEN IN THE FALL!!!” 

On Tuesday, Trump said he does not want governors to keep schools closed for “political reasons.”

“They think it’s going to be good for them politically, so they keep the schools closed. No way. So we’re very much going to put pressure on governors,” he said during a White House event with government officials and school administrators.

Trump has yet to release his own plan on how to reopen schools safely by the fall as states across the country, including Michigan, are seeing another rise in COVID-19 cases. 

U.S. President Donald Trump speaks while flanked by Dr. Deborah Birx, White House coronavirus response coordinator, during the daily briefing of the White House Coronavirus Task Force in the James Brady Briefing Room April 10, 2020 at the White House in Washington, DC. | Alex Wong/Getty Images

David Hecker, President of the American Federation of Teachers Michigan, applauded Whitmer and Nessel for “standing up to Betsy DeVos and fighting for equity and justice for Michigan students.”

Tri-County Alliance for Public Education Executive Director, Robert McCann, also released a statement in support of the lawsuit. 

“Schools across Michigan are facing billions of dollars in shortfalls, with the first day of school year now less than two months away. It’s critical that the limited resources that have been allocated to schools go where they’re intended and needed most – the classrooms of our public schools. We appreciate Governor Whitmer and Attorney General Nessel taking action to keep politics out of the classroom and ensure K-12 schools receive this needed funding as we continue to push for the additional funding necessary to safely reopen our schools this fall.”

Joining Nessel and Becerra in filing this lawsuit are the attorneys general of the District of Columbia, Maine, New Mexico, and Wisconsin.