The Attorneys General of five states —- California, Michigan, Maine, New Mexico, Wisconsin—-and the District of Columbia filed a suit last week in the U.S. District Court for the Northern District of California. The plaintiffs contend that U.S. Secretary of Education Betsy DeVos flouted Congress’ intent in the Coronavirus Aid, Relief, and Economic Security (“CARES) Act, which included $13.2 billion for K-12 schools across the country.

Congress directed that the money be distributed to the nation’s low-income districts, through the federal Title I formula for determining student poverty.

The lawsuit argues that the Department of Education’s interim final rule mandating that private schools are eligible for pandemic relief funds based on the total population they serve rather than income is antithetical to the CARES Act’s Title I requirement.

Acknowledging that the pandemic was a crisis affecting all students, Congress permitted districts to use the funding not just on schools where poverty is concentrated but on all public schools, to provide technology, school lunches, health protections, as well as other uses. Since all private schools also faced a crisis, DeVos, in turn, initially said that CARES Act funding should be based on private schools’ total enrollment, and not the income level of the student population.

Facing a backlash from Congress, DeVos retreated from that initial position by issuing a new “interim final rule.” The new rule gives states two options. Under one, states would use private schools’ total enrollment to determine its share of a district’s funding. The other option would fund only low-income private school students, while also restricting CARES Act funding to low-income Title I-designated public schools, not to all schools.

Neither option is satisfactory to the Attorneys General. The first, like De Vos’ initial position, provides funding for private schools based on their total enrollment, rather than on their number of Title I –eligible students.  The second would prohibit public school districts from using federal aid on non-Title I schools where there are also many low-income students. It would also place undue restrictions on how Title I schools can use the money, the lawsuit said.