Letter to Betsy DeVos, Secretary of the Department of Education - Congresswoman Angie Craig Urges Secretary DeVos to Abandon Rule Diverting COVID-19 Relief Away From Public Schools

Letter

Dear Secretary DeVos:

I write regarding the U.S. Department of Education's (Education) interim final rule interpreting
the equitable services provision of the Coronavirus Aid, Relief, and Economic Security Act
(CARES Act). The Department has distorted the plain language of the CARES Act to
potentially divert federal emergency aid dollars intended for public schools to private school
students. Students in Minnesota public schools will lose more than $10 million due to this rule
that advances the Administration's ideological agenda but violates both the letter and intent of
the CARES Act.

The Department first released its unlawful interpretation of the CARES Act requirement that
local educational agencies (LEAs) provide equitable services to private school students "in the
same manner" as section 1117 of the ESEA of 1965 as non-binding guidance in April. After
multiple states, including my home state of Minnesota, indicated that they would ignore this
guidance and follow the letter of the law, the Department codified its unlawful interpretation and
improperly imbued it with the immediate force of law.

As of June 8th, the Minnesota Department of Education in a checklist for ESSER funds and non
-public schools states, "The State of Minnesota has decided to follow the intent and language of
the law and distribute the Federal funds to nonpublic schools according to the number of children
living in low-income households to prioritize those students with the greatest need. Because
there is unsettled disagreement between Congress, state education agencies, and the U.S.
Department of Education, and because U.S. Secretary DeVos has indicated she may pursue
rulemaking to codify the guidance, the Minnesota Department of Education recommends that
school systems hold an estimated equivalent of the disputed amount of the funding in and make
no draws from that amount until there is a final, Federal determination."

I urge you to rescind this rule and all associated guidance, allowing states to comply with the
CARES Act as Congress wrote it and utilize all emergency resources to safely reopen public
schools for the following reasons:

1.) The plain language of the CARES Act directs LEAs to reserve funds for equitable
services in direct proportion to the number of low-income students in private schools.
According to the Congressional Research Service's (CRS) recent legal analysis (CRS memo), "a
straightforward reading of section 18005(a) based on its text and context suggests that the
CARES Act requires LEAs to follow section 1117's method for determining the proportional
share, and thus to allocate funding for services for private school students and teachers based on
the number of low-income children attending private schools." Specifically, section 18005 of
the CARES Act requires LEAs to provide equitable services "in the same manner as provided
under section 1117 of [Title I-A of the Elementary and Secondary Education Act (ESEA)] of
1965." Because the allocation calculation is a statutory component of section 1117, this
mandates LEAs reserve the same proportion of CARES Act funds for equitable services under
the CARES Act as LEAs reserve under Title I-A. Stated differently, LEAs must calculate their
equitable services reservation as described above, by counting the number of low-income
students enrolled in private schools.

2.) The Department's Interim Final Rule claims ambiguity where none exists and develops
two alternative interpretations of the CARES Act in conflict with the statute. The
Department claims that the CARES Act text requiring LEAs to "provide equitable services in the
same manner as provided under section 1117 of the ESEA of 1965" is ambiguous. The
Department argues that "in the same manner" requires deviation from some of the mechanisms
of section 1117 and "if [Congress] simply intended to incorporate "section 1117 of the ESEA of
1965 by reference in the CARES Act… [t]he unqualified phrase "as provided in" alone would
have been sufficient." It concludes that because Congress did not use the magic words "as
provided in," the Department may cast off the calculation formula in section 1117 and develop
its own. This argument is wrong. In the 2012 Supreme Court decision in National Federation of
Independent Businesses (NFIB) v. Sebelius the Court held that "when the phrase "in the same
manner" references a specific provision in the law, that specific reference supplies the methods
or procedures for the agency to follow." The Court's interpretation of this phrase is controlling,
requiring LEAs to provide equitable services using the "methods or procedures" required under
section 1117 to implement the equitable services provision, including the calculation for the
funding allocated for the provision of equitable services.

When Congress directed equitable services to be provided "in the same manner as section 1117"
and using funds for equitable services. Instead, the Department has promulgated a rule that
distributes funds in a different manner. The Department claims to be providing LEAs two
options for compliance, but, is forcing LEAs to adhere to the mandate of the April 30th equitable
services guidance because the Department's proposed alternative incorporates onerous
restrictions on the use of funds where no such restrictions exist in statute.

3.) The Department's April 30th directive, contained in the IFR as option one, conflates
which students LEAs must count for allocation purpose with which students may be the
beneficiaries of equitable services. The Department's foundational argument in support of the
rule's first option is that "if the CARES Act does not limit services based on residence and
poverty, then it stands to reason that an LEA should not use residence and poverty to determine
the proportional share of available funds for equitable services." This imagines a distinction
between the CARES Act and Title I where none exists and draws a conclusion from that
imagined distinction, which does not follow. The Department's April 30 guidance attempts to
distinguish between the CARES Act and Title I equitable services claiming that "the services
that an LEA may provide under the CARES Act programs are clearly available to all public
school students and teachers, not only low-achieving students and their teachers as under Title I,
Part A." The Department claimed that this distinction necessitated the Department's
reinterpretation of section 1117 as applied to CARES Act funds and its rule repeats a version of
this claim. But these assertions misrepresent the facts. In reality, in most cases Title I-A
allows LEAs to provide schoolwide services, not services targeted only at low-achieving
students. Schoolwide services, by definition, serve all public-school students in attendance at
Title I schools. In fact, according to the Department's own National Center for Education
Statistics, 95 percent of all students served in Title I-A participating public schools, , receive
services in schoolwide programs.

The Department's rule claims that the most consequential sub-sections of section 1117, those
governing the equitable services allocation, "are inapposite in a CARES Act frame" because of
it meant for LEAs to follow standard practices outlined in ESEA Section 1117 when reserving
this perceived tension between allocation and use.12 But the CRS memo confirms that "there is
no inherent tension in Congress directing the equitable share of a fund that is, at least in part,
income-based to be distributed based on income."13 When Congress directed LEAs to provide
CARES Act equitable services in the same manner as provided under 1117 it did not parse the
applicable subsections of section 1117. The Department may not do so in absence of
Congressional direction.

4.) The IFR's option two is not a possible option, especially for high-poverty LEAs, and has
no basis in law. Under option two, LEAs may allocate funds for equitable services in
accordance with the requirements of section 1117, but LEAs must abide by two restrictions
rendering this option both untenable and functionally impossible. First, LEAs may only
distribute CARES Act funds to Title I-participating schools. Second, the Department requires
LEAs employing this option to comply with the supplement not supplant requirement in section
1118(b) of ESEA. These requirements are not rooted in the CARES Act, would deprive tens-of-
thousands of public schools from receiving CARES Act aid, and have rendered this option an
impossibility for many LEAs.

While the Department claims this requirement ensures CARES Act funds are spent only on low-
income students, it actually deprives countless low-income students the benefit of emergency aid
by prohibiting funds from flowing to Title I eligible schools (low-income public schools) that do
not participate in Title I due to lacking annual appropriations. The Department's restriction
ignores this reality and will prevent LEAs from distributing funds to more than 10,000 schools
serving sufficient numbers of low-income students to be eligible for Title I-A but not receiving
Title I-A dollars. Option two also subjects states and LEAs to supplement not supplant
requirements for Title I-A funds, a requirement that has no textual basis in the CARES Act, as
noted by the Department. In the Title I-A context, supplement not supplant restricts states and
LEAs from reallocating state and local funds from Title I-A recipients and replacing them with
Title I-A aid, preventing the dilution of Title I-A aid. The supplement not supplant requirement
serves an important purpose in the Title I-A context, by ensuring that the federal investment in
Title I-A increases the funds available to serve those schools instead of simply changing their
source. But as applied to the CARES Act, a supplement not supplant requirement would prevent
LEAs from exclusively directing CARES Aid to Title I schools while allocating extremely
limited state and local resources to pay all remaining costs.

5.) The process by which the Department issued this rule is deeply flawed. The Department's
claim that it has good cause to bypass both standard Administrative Procedures Act-mandated
30-day waiting period lacks merit. Courts have repeatedly held that events outside an agency's
control may justify good cause if those events necessitate a rulemaking with immediate effect of
law.16 However, those cases are limited to "exceptional circumstances" to prevent an agency
from "simply wait[ing] until the eve of a statutory, judicial, or administrative deadline, then
rais[ing] up the "good cause' banner and promulgat[ing] rules without following APA
procedures." In other words, courts have held that "good cause may not arise as a result of the
agency's own delay." If it was necessary for the rule to take effect on July 1, the Department
could have published this rule a full month after Congress passed the CARES Act, while
providing both 30-day periods and meeting its deadline. Instead, the Department waited more
than three months to publish the rule and insisted that in the interim LEAs either comply with the
Department's equitable services guidance or hold the CARES Act funds in escrow.

In the interest of public schools, teachers, and students in Minnesota's Second Congressional
District and the rule of law, we call on the Department to immediately rescind this rule and all
related guidance.

Sincerely,

Source