The plaintiffs in a lawsuit challenging a rule that imposes unlawful conditions on federal emergency aid for public schools have asked the U.S. District Court for the District of Columbia to grant a preliminary injunction that would stop the rule from being enforced. Broward County Public Schools in Florida and DeKalb County School District in Georgia have also newly joined the lawsuit.

The complaint in NAACP v. DeVos was filed last month by the law firm Munger, Tolles & Olson, LLP, as well as Education Law Center and the Southern Poverty Law Center to challenge a rule issued by Secretary of Education Betsy DeVos and the U.S. Department of Education that imposes illegal and harmful requirements on the funds allocated to public school districts through the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Under the rule, school districts must divert more funding for “equitable services'' to private school students than the law allows or face onerous restrictions on the use of those funds in their public schools.

The rule will drastically diminish the desperately needed resources available to support public school children during the COVID-19 pandemic, with a particularly harmful effect on historically underserved student populations, including students of color and low-income students.

The plaintiffs challenging the rule are the NAACP and public school parents and districts across the country. The plaintiff families have children enrolled in public schools in states including Maryland, North Carolina, Georgia, Arizona, Florida, Tennessee, Nevada, Mississippi, and Alabama, as well as Washington, D.C. In addition to those public school districts newly joining the lawsuit, the plaintiffs also include Denver County School District, Pasadena Unified School District, and Stamford Public Schools.

The organizations filing on behalf of the plaintiffs collaborate on Public Funds Public Schools (PFPS), a national campaign to ensure that public funds for education are used to maintain, support, and strengthen public schools.

The motion filed yesterday argues that the plaintiffs are likely to succeed on the merits of their claims that the challenged rule contradicts the clear language and intent of the CARES Act and thus violates federal statutory and constitutional requirements for agency rulemaking. Although the CARES Act directs public school districts to calculate the amount they must set aside for equitable services based on the number of low-income students enrolled in private schools, the rule forces districts to either calculate that funding based on all students enrolled in private school, even the most affluent, or face severe restrictions on how the district can use the rest of its CARES Act funds, including prohibiting their use to serve any students not attending high-poverty, “Title I” schools.

The motion for preliminary injunction, which is supported by declarations from public school officials, details the immediate threat of harm to the education and health of students and their families all across the country if the full aid provided by Congress cannot be used as intended.Schools have an urgent need to buy cleaning supplies and personnel protective equipment, pay for programs and staff to implement remote learning and support students disproportionately impacted by the pandemic, and fill gaps in severely reduced state and local budgets.

“As public school districts begin the new school year, they face drastically reduced budgets and unprecedented demands to support students’ learning, health, and social and emotional needs. There is an urgent need for the court to provide relief by halting the enforcement of this illegal and unjustifiable rule,” said Tamerlin Godley, a partner at Munger, Tolles & Olson. “With students starting school over the next few weeks, it is critical that our public schools educating the vast majority of students have the resources necessary to protect and teach them as the pandemic continues to take an excruciating toll on children and communities.”