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Fight Over COVID Aid Between Private Schools and States Heats Up

Amid uncertainty over whether Congress will provide additional aid money to help schools weather the pandemic, disputes over the relief package lawmakers did provide to K-12 nearly three months ago are intensifying. 

One example of this fight between private schools and local public school districts is in Pennsylvania, where the state education department recently swatted aside a complaint by the state's Catholic Conference that the state is improperly disregarding U.S. Secretary of Education Betsy DeVos' guidance about how relief money should be distributed. And this kind of spat isn't confined to one state.

A bit of background: In nonbinding guidance for CARES Act relief money, DeVos said equitable services—programs provided by districts using federal aid that typically assist disadvantaged students in private schools—must be provided by districts to all local private school students. That position drew swift condemnation from many state and local education officials, including Pennsylvania Secretary of Education Pedro Rivera, who said in a letter to federal officials last month that the guidance is "clearly inequitable" and hurts local school districts.

Some have also accused DeVos of using money in the CARES (Coronavirus Aid, Relief, and Economic Security) Act to satisfy her long-held political aims of helping private schools at the expense of traditional public schools, a frequent target of her criticism. Yet private school advocates counter that CARES money is supposed to help all students, not just those in public schools. And many private schools that are worried about surviving the pandemic say helping them helps public schools, too. On June 5, the libertarian Cato Institute reported that since mid-March, 52 private schools, including 43 Catholic schools, have announced they are permanently closing

DeVos said in late May she will create a new federal rule that would in all probability require districts to follow what's now nonbinding guidance. But in the interim, the fight is becoming increasingly messy and could complicate when and how districts make decisions about using CARES money this summer.

Here's a brief summary of events in Pennsylvania: 

  • On May 18, the Pennsylvania Catholic Conference filed a formal complaint—not a lawsuit—with the state education department over its decision not to follow DeVos' guidance regarding CARES, which provided roughly $13 billion for local districts. Sean McAleer, the Catholic Conference's direction of education, said ignoring the guidance "unlawfully deprives nonpublic school students of their equitable share of those funds."
  • Four days later, perhaps anticipating the state's reaction, the Catholic Conference wrote to DeVos and essentially asked her to bypass school districts and have her department help arrange equitable services in accordance with her guidance. (The main federal K-12 law allows for this kind of arrangement in certain circumstnaces.)
  • Then on June 3, in a letter to the state Catholic Conference, the Pennsylvania Department of Education rejected the formal complaint. Susan McCrone, the chief of the federal programs division at the department, told the conference that Pennsylvania's position is that for CARES, "reservations for services to nonpublic schools are based on the number of low-income children in each participating nonpublic school." In other words, the state hasn't budged in rejecting DeVos' guidance. 

It's worth noting that Pennsylvania rejected the Catholic Conference's complaint several days after DeVos' announcement about creating a rule, showing that the state stuck to its guns about the guidance even after the news from DeVos. 

Any fight over the guidance itself could wind up going down a long legal road, although if DeVos issues a rule and it's challenged in court, the countours of that dispute could change somewhat. Irrespective of any upcoming rule, it's been a mixed bag in terms of whether states say they'll tell school districts to follow the guidance. 

This push from the Pennsylvania Catholic Conference seems to fit into a broader strategy with respect to parochial schools.

In a late May update to a piece about CARES relief and private schools, the National Catholic Educational Association wrote that, "Several superintendents and State Catholic Conference Directors have filed a formal complaint with their state education department to protest the noncompliance with the guidance instructing inclusion of all private school students. This is a process that others are considering as well." 


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