Nessel leads four states to sue DeVos on COVID-19 aid rule for private schools

Lansing —  Michigan Attorney General Dana Nessel is among a group of attorneys general suing Education Secretary Betsy DeVos over a policy requiring public school districts to split coronavirus relief funds with private school students.

Nessel is partnering with California Attorney General Xavier Becerra to lead a coalition of states in pursuing the lawsuit, which was filed in the U.S. District Court for the Northern District of California.

Nessel said DeVos has "erroneously and unlawfully" misinterpreted language in the federal CARES Act and disregarded the clear intentions of Congress with a new rule, resulting in the "dilution" of the amount of federal education aid available to public schools in Michigan by at least $16 million. There are about 700 non-public schools in Michigan.

Governor Gretchen Whitmer provides an update on COVID-19 in Michigan on Thursday, May 28, 2020.

Congress intended for school districts to share coronavirus funding with low-income students attending private schools in their districts, Nessel said.

But DeVos has maintained that the CARES Act does not restrict the aid to only poor students and that all private school students are potentially eligible for the aid.

"Unfortunately, this most recent action by Secretary DeVos is really just another example in a long history of an administration that uses any and every opportunity available to tip the scales in favor of private schools at the great expense of our public schools," Nessel said.

"We cannot and will not sit on the sidelines while critical funding specifically allocated based on low-income status is allowed to be reallocated by counting students who have privileges and resources already available to them."

More: DeVos rejects part-time reopening for schools amid pandemic

DeVos spokeswoman Angela Morabito said the U.S. Education Department does not comment on pending litigation but noted the secretary has said the CARES Act requires funding that should be used to help all students — since all were affected by the pandemic.

"There is no reasonable explanation for debating the use of federal funding to serve both public and private K-12 students when federal funding, including CARES Act funding, flows to both public and private higher education institutions," Morabito said in a statement.

Playing 'politics with education'

The six-count complaint filed Tuesday is asking a federal judge to declare DeVos’ rule and guidance for public school districts unlawful and to enjoin the U.S. Department of Education from enforcing it. 

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

Gov. Gretchen Whitmer said under the DeVos rule, private schools and affluent school districts might receive services intended for disadvantaged students.

"This isn't how it should work. This is a virus that has had a disproportionate impact on low-income students and communities of color. Schools in these areas deserve a government that will support them throughout this crisis," Whitmer said. 

“The DeVos rule strips dollars away from schools in need of that critical funding. She doesn't share our priorities for protecting and improving public education, and that's why this action today is necessary."

Michigan Republican Party Chairwoman Laura Cox defended DeVos' rule and criticized the new lawsuit, saying Nessel and Whitmer are trying to "intentionally leave thousands of Michigan children unprotected from a disease that does not care if a child attends a public or private school.”

“Politics has no place in the fight against COVID-19, so Whitmer and Nessel should stop bowing down to the whims of the teacher’s union bosses who fund their campaigns and stop using schoolchildren like pawns in their well-documented war on Secretary DeVos," Cox said in a statement. 

Whitmer's campaign sent out a fundraising email focused on DeVos' actions within four hours of the Tuesday press conference.

The Michigan Association of Nonpublic Schools called the lawsuit "disappointing."

"Public and nonpublic schools both serve the common good of our state, and pitting one against the other is most unfortunate. Our state leaders should be above this level of hypocrisy," said Brian Broderick, the association's executive director.

Impact of federal rule

Michael Rice, the state superintendent of public instruction, said under the state's reading of the law, non-public schools would receive $5.1 million. But under DeVos' new guidance, the non-public schools would receive $21.6 million — a nearly $16.5 million difference. 

"This is enough to buy 63,694 Chromebooks for students at $259 a Chromebook or to buy personal protective equipment for 33,944 students at $486 per student annually," Rice said.

"The U.S. secretary of education manufactured guidance and then a rule that favored nonpublic schools at the expense of public schools in a way neither intended nor enacted by Congress. Any siphoning off of public school funds to nonpublic schools is unacceptable."

The Detroit Public Schools Community District and Grand Rapids School District under DeVos' rule would each receive $2.6 million less in funding, Nessel said. Flint Public Schools would lose $1.4 million in aid. 

"This isn't just a concern for urban or large school districts," Nessel said. "This is a concern for all our school districts, and because of the anticipated financial challenges that face our state in the months and years ahead, we must fight for every single dollar available for education."

The other states joining Michigan and California in the lawsuit are Maine, New Mexico and Wisconsin, as well as the District of Columbia.

Nessel announced the legal action at a Lansing news conference as Whitmer administration officials have been lobbying Congress for money to fill a $3.2 billion budget shortfall in the current budget and a $3 billion hole in next year's budget.

The shortfall for public schools is at least $1 billion in both fiscal years related to the outbreak of the coronavirus.

The CARES Act, adopted in March, targeted $30.75 billion for K-12 schools and higher education amid the pandemic with $13 billion sent to state education agencies like the Michigan Department of Education, which got nearly $390 million, according to Nessel's office.

State agencies then distribute the money to local districts. 

Rice said the Council of Chief State School Officers, which represents state education superintendents, wrote to DeVos in early May expressing concern that her initial formula for allocating the school aid violated the CARES Act's "plain language."

DeVos revised her guidance last week in a rule that required districts to choose between two methods of allocating the funds, "neither of which is actually in the CARES Act," Rice said. 

He noted the CARES Act money is targeted for 12 purposes, mostly related to the coronavirus pandemic, such as the purchase of personal protective equipment, professional development and technology for remote learning. 

Part of the cash is federal Title I money that is supposed to be targeted at low-income students, including a portion intended for private schools based on the number of low-income students they have enrolled, Rice said. 

"Title I funds are not intended to be allocated based on all students enrolled, since the CARES Act funding allocation is supposed to mirror Title I allocations," he said.

"Instead however, the U.S. Department of Education's rule ... does not in fact allow local school districts to follow the CARES Act requirements." 

Longtime DeVos family adviser Greg McNeilly hit back at Rice on Twitter.

"For fellow Michiganians: Dr. Rice wouldn't know the 'plain reading of the law,' if the A to F letter grade hit him in the face," McNeilly wrote.