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Congress' Think Tank Casts Doubt on DeVos Push to Aid Private School Students

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UPDATED

The evidence suggests that U.S. Secretary of Education Betsy DeVos' push to direct coronavirus relief to the general population of private school students may not match "the most straightforward reading" of federal law. 

That's according to the Congressional Research Service in a report published earlier this month. The CRS says the available evidence indicates that when lawmakers wrote the Coronavirus Aid, Relief, and Economic Security (CARES) Act, they wanted disadvantaged students at private schools to benefit from a portion of the aid. The report from the nonpartisan CRS—which is sometimes called "Congress' think tank"—could prove useful to opponents of DeVos' push for a slice of CARES money to benefit private school students in general, not just those from low-income backgrounds. 

The report, "Analysis of the CARES Act's Equitable Services Provision," mght add sizzle to a political and potential legal battle over CARES aid, which amounts to about $13 billion in relief for districts. 

"This analysis confirms what we already knew to be true: Congress was clear in its directive in the CARES Act—school districts are required to provide equitable services based on the number of low-income students attending private schools," said Rep. Bobby Scott, D-Va., the chairman of the House education committee, in a statement. "The Department's misguided implementation of CARES Act funding not only strips $1.3 billion in critical funding from public schools, but creates unnecessary legal barriers for school districts in the midst of a global pandemic." 

In response to the CRS report, Education Department spokeswoman Angela Morabito said, "The Secretary has said many times, this pandemic affected all students, and the CARES Act requires that funding should be used to help all students. 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."

In guidance from late April, the U.S. Department of Education said schools should use CARES money to provide "equitable services" (like technology licenses and tutoring) to private school students; these are not vouchers or direct payments to private schools but could help them indirectly as the economy suffers. The department justified this guidance by stating that CARES money is meant to help all students because of the pandemic's sweeping effects regardless of where they go to school, including when it comes to equitable services.

But under the main federal K-12 law, the Every Student Succeeds Act, equitable services are only available to students from low-income backgrounds. And the CARES Act says districts must set aside this aid for private school students "in the same manner" as the Every Student Succeeds Act.

After protests from those who said DeVos was flouting the plain intent of Congress in order to prop up private schools, DeVos issued an interim final rule on July 1 that gives districts a choice in the matter.

  • Districts can end CARES aid just to schools that received Title I money for low-income children in the 2019-20 academic year. This approach allows them to spend CARES aid on equitable services only for low-income private school students. However, districts picking this choice can't shift state and local money out of Title I schools to non-Title I schools, a move that crimps local flexibility during looming budget cuts and could strongly discourage districts from using this approach. 
  • Districts can choose to send money to both Title I and non-Title I schools. In that case, districts will have to set aside CARES money for equitable services for all local private school students. 

The CRS report states that the department's declaration that equitable services under CARES should benefit all students, regardless of where they go to school and regardless of household income levels, "may elevate a general conception of equity ... over the specific procedures set out [in federal law]."

The report also focuses on the phrase "in the same manner" by pointing to Merrriam-Webster Dictionary's definitions of "same" and "manner." It then states that by using that phrase, "Congress likely meant to indicate how [school districts] should provide equitable services with relief funds rather than for what or to whom."

The department expects to be sued over its interim final rule, which went into effect immediately but can still be revised after a 30-day public comment period. States as well as education groups have criticized the guidance and the interim final rule, although private school supporters have backed DeVos.

The CRS report notes that the question of congressional intent is relevant because it influences whether the interim final rule is subject to "Chevron deference." That's a legal term for when courts defer to a federal agency's interpretation of an ambiguous or unclear section of law. Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee, said in May that he thought Congress wrote CARES with the intent that equitable services should be reserved for low-income students. 

Read the full CRS report below: 

Photo: Secretary of Education Betsy DeVos testifies at a House appropriations subcommittee hearing in February 2020. --Graeme Sloan/Education Week


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