Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

FOR IMMEDIATE RELEASE: 
Aug 21 2020

CARES Act relief funds for schools intended to benefit all low-income students

SEATTLE — A federal judge in Seattle today granted Attorney General Bob Ferguson’s request to immediately block a U.S. Department of Education rule that will deprive Washington’s public elementary and secondary schools from receiving emergency relief funds. Congress included the emergency funds for schools in the Coronavirus Aid, Relief & Economic Security (CARES) Act.

Judge Barbara J. Rothstein’s ruling blocks the Department of Education’s rule nationwide.

Education Secretary Betsy DeVos is refusing to follow the clear direction of Congress by unlawfully ordering school districts to distribute the funds in a manner that will take CARES Act funding away from public schools and low-income students.

The department’s new rule forces districts to either deprive many of their schools of any funds at all, or give more of the relief funds to private schools than Congress intended.

In the Lake Washington School District, for example, DeVos’ rule forces the district to either deprive 51 of its 56 schools of any funding at all, or pay more money than Congress intended to private schools within its district.

Seattle Public Schools would be forced to choose between sending nearly 20 percent of its CARES Act funds to private schools — drastically higher than the just over 3 percent Congress intended — or deprive 73 of its schools of critical relief funding.

“Betsy DeVos has continued to try to hijack much-needed CARES Act relief funds to satisfy her own political agenda,” Ferguson said. “Congress explicitly provided this money to help the most vulnerable students, who have been hit hardest by this pandemic. I won’t allow her to unlawfully funnel these funds to private schools.”

“Given the Trump administration’s track record, it is not surprising that Secretary DeVos tried to divert federal CARES Act dollars from our public schools and neediest students,” said Gov. Jay Inslee. “Thankfully, Attorney General Ferguson and his team have, once again, intervened to protect Washington families and ensure these funds flow to those who need them most.”

As part of the CARES Act, Congress included about $13.5 billion for elementary and secondary schools nationwide to prevent and reduce the effects of COVID-19. The CARES Act allocated the funds to assist public schools and private schools with low-income families to purchase personal protective equipment, cleaning supplies, technology for online classes, meal programs and more.

Ferguson filed a lawsuit on July 20 in U.S. District Court for the Western District of Washington challenging the unlawful rule. Three days later, Ferguson filed a motion for preliminary injunction to block its implementation while his lawsuit progresses.

U.S. District Court Judge Barbara J. Rothstein granted Ferguson’s motion today.

In her ruling granting Ferguson’s motion to block DeVos’ rule, Judge Rothstein called the administration’s arguments “remarkably callous, and blind to the realities of this extraordinary pandemic and the very purpose of the CARES Act: to provide emergency relief where it is most needed.”

Washington state received $216 million of the CARES Act money for elementary and secondary schools.

This is the second time Ferguson has challenged a Department of Education attempt to impose unlawful rules on the distribution of CARES Act relief funds. In May, Ferguson challenged a decision that would have deprived thousands of Washington college students from receiving crucial aid included in the CARES Act. On June 12, a Spokane federal judge granted Ferguson’s motion for a preliminary injunction in that case, largely blocking the department’s decision.

CARES Act funding

The CARES Act allocates funds to school districts based upon the number of students within their borders. Districts then allocate the funds to their public schools as they see fit, and provide money to private schools based upon the private schools’ percentage of low-income students.

In most school districts in Washington state, the percentage of low-income students in public schools is significantly higher than in private schools.

More than a month after the CARES Act passed, the U.S. Department of Education issued guidance that would have distributed the funds based only on the total number of enrolled students in public and private schools, regardless of the income level of those students’ families. After intense criticism, the department issued the current interim final rule, which forces districts to choose between distributing all of the funds only to Title I schools in their districts, or distributing the funds by total student population. Both options drastically alter how the funds are spent, and both have the potential to deprive public schools of significant funding Congress intended for them.

The Department’s first option only allows distribution to Title I schools. Title I schools must have at least 40 percent of their students from low-income families. However, there are many schools that are Title I eligible, yet do not participate in the Title I program for a variety of reasons. Under this option, any school in the district that is not in the Title I program would receive no funding, regardless of how many low-income students they have or whether the school is Title I eligible.

About two-thirds of Washington schools are not Title I schools. About 45 percent of all Washington public school students — in both Title I and non-Title I schools — qualify for free or reduced-price meals.

The department’s second option forces schools to distribute the funding based on total student population in both public and private schools within their borders, without considering the number of low-income students at each school. In districts with large private schools, their share of the funds would increase dramatically, taking funds away from needy public schools in the district.

In addition, private schools are eligible for other sources of coronavirus relief funds, which public schools are not. For example, private schools can apply for Paycheck Protection Program loans for which public schools are ineligible.

Ferguson’s lawsuit asserts that the department’s rule is unlawful and a violation of the Administrative Procedure Act, as well as Article I of the U.S. Constitution, which gives exclusive “power of the purse” to Congress.

Ferguson asserts that the department’s actions violated the Administrative Procedure Act because they exceeded the department’s statutory authority, lacked any reasoning or explanation and therefore were arbitrary and capricious, and were adopted without proper procedures.

Assistant Attorneys General Paul Crisalli, Spencer Coates, Jeff Sprung, July Simpson and Brian Rowe are handling the case for Washington.

Ferguson has filed 75 lawsuits against the Trump Administration. Forty-five of these cases are awaiting a judicial ruling. Ferguson has 31 legal victories against the Trump Administration. There has been one adverse decision on the merits and Ferguson is appealing that decision. Twenty-one of these cases are finished and cannot be appealed.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

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