Education secretary concedes defeat in fight over CARES Act funding for public schools

U.S. Department of Education Secretary Betsy DeVos issued a letter last Friday acknowledging defeat in her effort to rewrite a section of the CARES Act that would have diverted over $16 million away from K-12 public schools in Michigan, Attorney General Dana Nessel announced on Tuesday.

In litigation led by Nessel and California Attorney General Xavier Becerra, Judge James Donato — of the U.S. District Court Northern District of California — issued a preliminary injunction on Aug. 26 halting DeVos’ rule. Donato’s ruling joined two similar orders by courts in the District of Columbia and Washington State.

“We filed this lawsuit for one simple reason: to ensure students in Michigan and across this nation were not robbed of educational resources they deserve,” said Nessel. “The landscape of how a regular school day is conducted has changed for so many and Congress allocated these CARES Act funds for those most in need. We were poised for a fight because it was the right thing to do, and will accept Secretary DeVos’ acknowledgement of her defeat. However, my colleagues and I will remain on guard to defend against any future attempts by this administration to rob funding from our public schools and students who are most in need of these critical resources.”

In her letter, DeVos writes that while the U.S. Department of Education disagrees with Donato and the other district courts’ rulings, her Department will “respect the rule of law and will enforce the law as the courts have opined. The Department will not appeal these rulings.” 

Confirming what the CARES Act requires and Nessel had fought to enforce, the Department stated that “[g]oing forward, districts must calculate the minimal proportional share for CARES Act equitable services according to the formula provided in Section 1117(a)(4)(A) of the ESEA of 1965.”

Nessel and Becerra led a coalition of states that filed suit on July 7 against DeVos and her Department for issuing a rule that would unfairly limit the ability of public schools to use federal funds provided under the CARES Act. The Aug. 26 preliminary injunction order prohibited the Department from enforcing its rule until a decision on the merits of the case could be rendered.

In his colorfully-worded order, Donato found that the coalition was likely to succeed on the merits of its case because, contrary to DeVos’ argument that the CARES Act language is ambiguous, Congress used language that is “familiar and uncomplicated, to say the least.” As a result, Donato wondered, “how could anyone maintain with a straight face” that the CARES Act language is unclear? Quoting the late-Supreme Court Justice Antonin Scalia, Donato further found that the Department’s interpretation of the CARES Act was “‘interpretive jiggery-pokery’ in the extreme.” 

In their litigation, Nessel and Becerra were joined by the attorneys general of Hawaii, Maine, Maryland, New Mexico, Pennsylvania, Wisconsin and the District of Columbia, as well as the City School District for the City of New York, Chicago Board of Education, Cleveland Municipal School District Board of Education, and the San Francisco Unified School District.