Public Funds Public Schools (PFPS) is calling on state education agencies (SEAs) to ensure compliance with a federal court’s order in NAACP v. DeVos invalidating Secretary of Education Betsy DeVos’s illegal rule regarding the provision of services to private school students under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. In a letter to chief state education officers across the country, PFPS urges SEA action in the face of evidence that some states are directing school districts to disburse CARES Act funds in contravention of the court’s clear directive.

The lawsuit, filed on behalf of the NAACP as well as public school families and school districts, challenged the DeVos rule that attempted to illegally divert CARES Act funds away from public school districts for the benefit of private schools. The plaintiffs are represented by the law firm Munger, Tolles & Olson, LLP, as well as Education Law Center and the Southern Poverty Law Center. These three organizations collaborate on PFPS, a national campaign to ensure that public funds for education are used to maintain, support, and strengthen public schools.

On September 4, the U.S. District Court for the District of Columbia struck down DeVos’ rule nationwide after concluding that it blatantly contradicted the CARES Act. In recent weeks, PFPS has received reports of SEAs continuing to direct or allow school districts to distribute CARES Act funds for private school services even if that funding was calculated using the rule’s unlawful formula based on total private school enrollment rather than only on enrollment of low-income students in private schools, as dictated by Congress.

For example, the New Jersey Department of Education issued guidance on October 7, telling districts to continue spending on “equitable services” for private school students at the higher levels deemed illegal in the NAACP ruling and announced that the state will allocate to districts over $26 million in additional CARES Act money to underwrite this illegal course of action. Maryland’s SEA has also issued guidance that does not appear to comport with the law, and there is concern that additional SEAs are not taking appropriate steps to assist districts in complying with the court’s ruling.

The PFPS letter reiterates to SEAs that, because the court’s ruling has retroactive as well as prospective effect, SEAs may not “advise, require, or allow” districts to distribute CARES Act funds based on the invalid rule, regardless of whether those funds were “allocated before or after the District Court’s ruling.”

The letter urges SEAs to work with districts and appropriate legal counsel to help districts determine how they should proceed in order to comply with the court’s order. This includes immediately halting disbursement of inappropriate allocations where districts have made financial commitments based on the illegal rule, as well as making reasonable efforts to recoup inappropriately disbursed funds.

The CARES Act provided desperately needed emergency funding for public school districts that are attempting to ensure students, particularly low-income students, students of color, and others disproportionately affected by the COVID-19 pandemic, continue learning and receiving essential supports. PFPS will continue to work to ensure that the funding Congress intended for public school districts is not illegally diverted to private schools.

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