The COVID-19 pandemic continues to impact students, families, and schools across the country as they face extended school closures, obstacles to distance learning, and elevated physical and mental health needs. Public schools are working to step up for their students during this crisis, a challenge that requires significantly increased resources, even as budgets are being gutted.

What is U.S. Secretary of Education Betsy DeVos’ response? Double down on her agenda to funnel as much public funding to private schools as possible.

On April 30, the U.S. Department of Education (USED) advised public school districts that they should share their portion of funding under the Coronavirus Aid, Relief, and Economic Security (CARES) Act with private schools at significantly increased levels. This “guidance” – which blatantly contradicts governing law and congressional intent – has triggered a growing wave of opposition from public education leaders and advocates across the political and geographic spectrum. Secretary DeVos has now announced that this stunningly flawed guidance will become mandatory regulation.

Title I of the Every Student Succeeds Act (ESSA), the national education law, requires public school districts to use part of their funding on “equitable services” for low-income students attending private schools in their geographic area. This fits with the purpose of Title I, which is to provide resources for low-income students who may need extra supports to succeed in school. The recent CARES Act states that school districts receiving federal relief funds must provide equitable services to students and teachers in non-public schools “in the same manner” as provided under Title I of ESSA.

But Secretary DeVos’ guidance tells districts to do things differently than federal law requires, instructing them to calculate the amount they must spend on equitable services based on all students in the district who attend private schools rather than the number of low-income students in private schools. This dramatically decreases the federal emergency funds available for many public schools as they struggle to meet the educational, nutritional, social, and emotional needs of their students during this unprecedented time.

Lawmakers on the House and Senate education committees told Secretary DeVos that her interpretation of the CARES Act is incorrect. And Republican Lamar Alexander, Chair of the Senate Committee on Health, Education, Labor, and Pensions, said he and his congressional colleagues expected CARES Act funds to be distributed in the same way as Title I funding.

The Council of Chief State School Officers (CCSSO) wrote to Secretary DeVos, stating that the guidance “is counter to” ESSA and the CARES Act, and requested that the Secretary correct it. Another letter signed by organizations including the School Superintendents’ Association (AASA), the National School Boards Association, and the nation’s two largest teachers’ unions, the National Education Association (NEA) and the American Federation of Teachers (AFT), “strongly urge[d]” Secretary DeVos to “revise the guidance so it aligns with the underlying law.” And the leaders of both AFT and AASA have stated that school districts should “ignore” the incorrect, non-binding guidance.

Public school advocates have similarly urged state leaders—including those in New Jersey, New York, South Carolina, and Mississippi—to follow the law rather than the guidance, and preserve funds for low-income students in public schools.

Now, increasing numbers of state education leaders are taking a stand against Secretary DeVos’ (mis)guidance in order to protect scarce resources for their public school students. Indiana’s Republican State Superintendent instructed districts to calculate equitable services funding according to binding federal law. Maine’s Education Commissioner issued a similar notice to superintendents. And Pennsylvania’s Education Secretary criticized the guidance for incorrectly funneling more money away from low-income public school students.

It has been reported that numerous states with a mix of Republican and Democratic leadership, including Arizona, Indiana, Maine, Mississippi, New Mexico, Oklahoma, Pennsylvania, Washington, and Wisconsin, are refusing to follow the guidance. Michigan’s State Superintendent has voiced disagreement with the guidance while recommending that districts consider holding in reserve the additional funds they would have to give up under the USED’s interpretation of the law. Officials in Colorado, Illinois, and Ohio are reportedly advising their districts similarly.

But Secretary DeVos is doubling down. Although guidance documents do not constitute binding law, federal regulations do. So Secretary DeVos announced, via a letter to the CCSSO, that the USED will issue regulations to cement the erroneous April 30 interpretation into law. There are also indications that the USED may rush to make the regulations binding without first allowing the public to review the proposal, comment, and inform the agency’s rulemaking process.

The problem with Secretary DeVos’ plan is that regulations cannot contradict the statutes they are intended to implement. The interpretation of equitable services funding that Secretary DeVos intends to enshrine in federal regulation contradicts both Title I of ESSA and the CARES Act. Therefore, regulations codifying this interpretation would be illegal.

Regulations that violate federal law will be even more harmful and confusing to states and school districts than a guidance document that blatantly misinterprets it. Such regulations would give Secretary DeVos and others who seek public funding of private schools a weapon to wield against public school districts that are trying to do right by their students in following the federal laws that protect their educational opportunities. In the face of Secretary DeVos’ threatened regulations, those fighting for public school students – a group spanning ideological divides – must continue to step up rather than back down.