Second Federal Judge Slams DeVos For Trying To Divert Coronavirus Relief Funds From Poor Students To Richer Ones

In a sharply worded decision, a federal judge slammed Betsy Devos’ “interpretive jiggery-pokery” that tried to divert coronavirus relief funds away from poorer students. As part of the CARES Act, Congress appropriated over $13 Billion to help schools and their students cope with the hardships created by the pandemic. The law quite clearly called for the Department of Education to distribute the most money to the schools with the largest numbers of poor students.

DeVos didn’t like that distribution formula and said in April that she would distribute CARES money to schools based on the total number of students, be they rich or poor, in the school. Since there are fewer low-income students in private schools, this would have diverted hundreds of millions of dollars away from public schools towards private schools.

Responding to intense criticism of her plan, DeVos tried to give the impression that she relented. But the rule she ended up implementing is a bit of Trojan Horse. It offered school districts two choices. They could follow DeVos’ original plan and distribute the money based on the total number of students, ignoring how many of those students are low-income. Or, as a second option, it allows school districts to base the amount given to schools on the number of poor students enrolled. But they can choose the second option only if they limited CARES Act funding to public and private schools that are already participating in Title I funding. That means that they couldn’t use the money for any district-wide measures to address the challenges caused by the Coronavirus. For example, the money could not be used to sanitize school buses, which is an obviously absurd restriction.

Not only is that impractical, but, as the judge pointed out, it’s clearly not what Congress intended. What is especially frustrating is the non-partisan Congressional Research Service had already reached a similar conclusion and another federal judge had already ruled against DeVos on this point. Unfortunately, the first judge did not issue a nationwide injunction against DeVos applying the rule: she limited the injunction to Washington State, where her court is located. Now, a second judge, The Hon. James Donato, has issued an injunction that applies to eight more states and the District of Columbia, all of whom are plaintiffs in the case.

There is a major debate going on over whether judges, especially district level judges like Donato, should issue injunctions that cover the entire country. That is probably why the two decisions so far have only enjoined DeVos from implementing her rule in the states that actually participated in the lawsuits. Hopefully, DeVos will relent and change the rule to reflect congressional intent, or a higher court will force her to do so nation-wide.