AG Ferguson challenges DeVos attempt to deprive Washington’s public schools of emergency funds

SEATTLE — Attorney General Bob Ferguson today filed a federal lawsuit in Seattle challenging an unlawful 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. Ferguson also intends to file a motion for preliminary injunction in the case, asking a judge to immediately block the Department of Education’s restrictions on the grants.

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.

Education Secretary Besty 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.

Washington state is set to receive $216 million of the CARES Act money for elementary and secondary schools.

“Betsy DeVos is unlawfully trying to funnel much-needed relief funds away from Washington’s most vulnerable public school students and give them to private schools,” Ferguson said. “Low-income families have been hit hard by this pandemic. This lawsuit will ensure the funds go where Congress intended them.”

“The federal government should be doing everything it can to help during this pandemic,” Gov. Jay Inslee said. “That includes much needed resources to help schools prevent the spread of the disease. It is unfathomable that this administration would try to reduce the amount of money that schools receive to help low-income families. I thank Attorney General Ferguson for taking action on this crucial issue.”

“Trump and Betsy DeVos are once again trying to divert funds away from Washington’s public schools and overrule how we fund schools fairly in our state,” said Larry Delaney, president of the Washington Education Association. “We commend Attorney General Ferguson for taking this much-needed action to make sure our public school funding stays with our public 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 Department of Education 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.

Today’s lawsuit, filed in U.S. District Court for the Western District of Washington, 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.

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.

Title I schools must have at least 40 percent of their students from low-income families. There are many schools that are Title I eligible, yet do not participate in the Title I program for a variety of reasons. All schools in the district that are not in the Title I program would receive no funding, regardless of how many low-income students they have or whether they are 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 some districts in Washington, Ferguson asserts, private schools would receive more than five times more funding under the department’s enrollment-based formula. Within the Seattle Public School District, private schools would receive nearly 20 percent of the total funding allocated to the district, despite having a much lower proportion of low-income students.

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.

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

Ferguson has filed 67 lawsuits against the Trump Administration. Thirty-seven of these cases are awaiting a judicial ruling. Ferguson has 30 legal victories against the Trump Administration. There has been one adverse decision on the merits and Ferguson is appealing that decision. Twenty of these cases are finished and cannot be appealed.