The Council of the Great City Schools applauded the recent decision by a federal judge in Washington state to temporarily block the U.S. Department of Education’s plan to divert hundreds of millions of dollars Congress intended to support public schools grappling with the COVID-19 pandemic to private schools.

The Department of Education created a rule that directed school districts to give private schools a larger share of funds from the Coronavirus Aid, Relief, and Economic Security Act, (CARES Act) --money that would otherwise have gone to public schools. If the rule had gone forward, at a time when schools are facing substantial budget cuts due to COVID-19, hundreds of millions of dollars of critically needed funds would be diverted away from public school districts serving low-income communities to wealthier private schools.

According to the Washington Post, U.S. District Judge Barbara J. Rothstein issued a preliminary injunction and castigated U.S. Secretary of Education Betsy DeVos and the Education Department for arguing that states would not suffer irreparable damage if forced to implement the rule and said there was cause to put a preliminary injunction on the rule while the broader issues are worked out.

“A federal judge correctly decided to block the U.S. Department of Education’s unlawful rewrite of the CARES Act that would have severely undermined the critical work urban school districts are doing in the midst of the global COVID-19 pandemic to keep students and staff safe,”  said Council Michael Casserly, executive director of the Council.

In March 2020, Congress appropriated approximately $13 billion to elementary and secondary schools through the CARES Act to help school districts address needs arising out of the COVID-19 pandemic. School districts were also required to allocate a portion of CARES Act funds they received to provide “equitable services” to private schools, just like they do under the federal Title I program. The amount was determined based on the number of low-income students residing in the district and attending private schools.

However, the interim final rule adopted by the Department ordered school districts to distribute funds not based on the number of low-income private school students residing in their districts, but based on the total enrollment of students attending private schools in the district regardless of their financial need.

In July, the Council filed an amicus curiae brief with the United States District Court for the Northern District of California that outlined the devastating impact the effort by the Department of Education to rewrite the CARES Act would have on the nation’s big-city public schools as they prepare for the reopening of schools in the fall.

Sixteen Council member districts estimated that the amount of funds they would lose to private schools would range from about $628,000 to $6,485,000. The four Council member districts that were parties to the litigation – New York City Department of Education, Chicago Public Schools, San Francisco Unified School District, and Cleveland Metropolitan School District – said that they would lose about $53,000,000, $10,170,000, $1,740,000, and $822,952, respectively. Based on the poverty levels found in urban public schools, the Council estimated that its member districts would lose a total of about $292,000,000 of these much-needed, emergency resources.

If the Department of Education’s rule had gone forward, California’s Oakland Unified School District estimated the school system would have been forced to distribute $1.8 million to local private schools through the CARES Act Private School Program. According to district officials, that would have been more than 10 percent of the $14 million in federal funding sent to the school district.

“What a relief it is that the federal judge saw the DeVos rule for what it was, a way to take money from public school students who need it, and give it to schools that serve primarily students of great privilege,” said Oakland Schools Superintendent Kyla Johnson-Trammell in a news statement. “When it comes to food insecurity, the need for technology in the home, and many other metrics, our students deserve all the support they can get from the federal government.”