Final Decision: Department of Education rule for allocating CARES Act COVID-19 relief funds to private school students is voided

On Friday, September 25th, the U.S. Department of Education announced that it would not appeal the federal district court’s order in NAACP, et al. v. DeVos, et al., overturning the Department’s regulation for allocating CARES Act COVID-19 relief funds to provide equitable services to students and teachers in private schools.  The regulation required school districts to allocate funds for this purpose based on the proportion of all students residing in the district that are in private schools, even though the CARES Act requires that these services be provided in the same manner as in Title I of the Elementary and Secondary Education Act, under which the amount of funds is based only on the proportion of low-income students in private schools.  The now voided regulation (in the form of an interim final rule), like the Department’s guidance that preceded it, would have shifted approximately ten times as much funds away from serving public school students and staff as the Title I formula (though that national average varied from district to district).

In announcing that it would not appeal the decision, the Department explicitly stated that districts must now use the Title I formula, basing the allocations solely on the proportion of low-income students in private schools.  Other district courts had preliminarily ruled against the Department, but NAACP v. DeVos went further in granting summary judgment and voiding the rule nationwide. Note that under both Title I and the CARES Act, while the proportion of low-income students determines the amount of funds that will be used to serve private school students, eligibility for those services is not limited to low-income students. 

The Center for Law and Education filed an amicus brief in NAACP v. DeVos (click here to read the brief), which provided a detailed analysis of the faulty reasoning behind the Department’s determination that a count of all students was the appropriate measure for determining equitable services. 

[For discussion of other aspects of implementing the CARES Act, beyond private school issues, click here for CLE's Analysis of Elementary and Secondary Funding in the CARES Act.]