Judge grants Nessel preliminary injunction to halt DeVos’ private school funding rule

Ruling says Flint would have to lay off 466 teachers

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

A federal judge granted Michigan Attorney General Dana Nessel’s request to temporarily halt Education Secretary Betsy DeVos’ implementation of a rule requiring K-12 public schools to share CARES Act relief funding with private schools. 

Judge James Donato, who presides over California’s U.S. District Court Northern District, granted the preliminary injunction late Wednesday.

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. 

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

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In July, Nessel and California Attorney General Xavier Becerra partnered in suing DeVos and asked for a preliminary injunction to stop the rule. They argued that it strips public schools of crucial federal funding provided under the CARES Act.

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

The court heard oral argument on the coalition’s preliminary injunction request on Aug. 18. 

DeVos’ defense argued nothing in the law Congress passed suggests private school districts shouldn’t receive funding. The language of the CARES Act is ambiguous in that area, DeVos said. The West Michigan native and former Michigan GOP chair has been a longtime funder of private schools and school choice efforts both in Michigan and across the country.

Donato rejected that argument. In his 15-page order, the judge said the coalition’s case has merit to proceed because the language of the CARES Act is “familiar and uncomplicated.”

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

“The problem for the Department is that it cannot make it past step one, which asks whether the statute is ambiguous. When Congress has spoken clearly … ‘that is the end of the matter,’” Donato wrote, referencing the Chevron doctrine, a principle that tells the courts to defer to a federal agency’s interpretation of an unclear statute given to the agency by Congress. 

Donato further wrote that “an executive agency like the Department has no authority to rewrite Congress’s plain and unambiguous commands” under the guise of interpretation.

The plaintiffs also proved the rule posed a “likelihood of irreparable harm” to public school districts and the department didn’t clearly dispute that, Donato wrote. He also agreed with the plaintiffs’ argument that private schools have had access to Paycheck Protection Program (PPP) funding. 

Donato noted that Michigan plans to distribute $5.1 million in relief funds to elementary and secondary private schools, but the DeVos rule would require $21.6 million — almost four times as much — to be given to private schools.  

“Losing (nearly $16.5 million) of federal funding to private schools would be the equivalent of laying off 466 teachers from public schools in Flint, Michigan,” Donato wrote.

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Nessel on Thursday issued a statement in response to Donato’s decision. 

“We are pleased with the Court’s decision and will continue to fight against the unlawful approach taken by Secretary DeVos to redirect pandemic relief money from public schools to serve her own political agenda,” Nessel said. “By Congress’ own design, that money was meant to assist the nation’s public schools that are most in need of financial support, but Secretary DeVos’ unlawful rule does the exact opposite.”

Gov. Gretchen Whitmer, who backed Nessel’s lawsuit, said the decision “is good news for our kids, our educators and families in districts who need this funding most.”

“CARES Act dollars are designed to provide support to districts in low-income areas. Betsy DeVos’ rule would have stripped dollars away from schools in need of critical funding,” Whitmer said. “She doesn’t share our priorities for protecting and improving public education.”

The plaintiffs and defense, plus their lawyers and the judge, will meet on Sept. 17 to decide how the case will proceed, according to the court.