BALTIMORE, MD—Maryland Attorney General Brian E. Frosh on Thursday announced that a coalition of attorneys general has secured a preliminary injunction against U.S. Department of Education’s attempt to transfer pandemic relief funds away from K-12 public schools.

In reaching the decision, the court held that the Department of Educations may have unlawfully reinterpreted the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), threatening efforts to ensure that school districts have the flexibility they need to tackle the challenges of COVID-19.

“In the midst of a global pandemic, with schools struggling to provide students with essential learning tools and equipment, Congress dedicated funding to assist in meeting the educational needs of millions of children attending public schools,” said Attorney General Frosh. “In the words of the Court, the intent of the CARES Act was ‘plain as day.’ (Education) Secretary (Betsy) DeVos has repeatedly demonstrated a preference for private, for-profit education over the needs of publicly-educated students. We are pleased the Court has put a halt to her efforts.”

On March 27, 2020, Congress enacted the CARES Act in response to the ongoing pandemic and its impacts across the country. Under the act, the U.S. Department of Education is required to allocate funding to help schools prevent, prepare for, and respond to COVID-19. Specifically, the act, among other things, requires the Trump Administration to distribute billions of dollars in aid through the Elementary and Secondary School Emergency Relief Fund and the Governor’s Emergency Education Relief Fund to K-12 schools across the country — with more than $2 billion slated for public schools in California from the combined funds. While the CARES Act provided local authorities with critical flexibility in using these resources, it also established that private schools are only eligible for funds in certain circumstances in line with established criteria under Title I of the Elementary and Secondary Education Act of 1965.

However, the Department of Education’s guidance and interim final rule ignores the legislated mechanism by effectively requiring the inclusion of private schools based on the total population they serve, leaving the poorest school districts with less.

In the decision, the court noted:

• Congress’ intent in the CARES Act was “plain as day” that funds must be distributed based on the proportion of low-income students and not total population;
• The U.S. Department of Education’s interpretation of the CARES Act was “interpretive jiggery-pokery in the extreme;”
• Plaintiffs clearly demonstrated a likelihood of irreparable harm and that the U.S. Department of Education did not meaningfully dispute that assertion; and,
• The balance of hardships weighs in plaintiffs’ favor, particularly in light of the fact that private schools have had access to additional funding under the Paycheck Protection Program.

In filing for a preliminary injunction, Attorney General Frosh was joined by the attorneys general of California, Hawaii, Maine, Michigan, New Mexico, Pennsylvania, Wisconsin, and the District of Columbia, as well as the City School District for the City of New York, Chicago Board of Education, Cleveland Municipal School District Board of Education, and the San Francisco Unified School District.

In a similar challenge by the state of Washington, the Court issued a preliminary injunction on August 21st.