A federal judge blocked Betsy DeVos’ rule requiring states to split their coronavirus aid with private schools , regardless of need or student poverty levels. For DeVos, the CARES Act was yet another opportunity to divert money from public schools to private schools.

Andrew Ujifusa of Education Week reports:

A federal judge has ruled against U.S. Department of Education in a lawsuit over how much coronavirus aid public schools must set aside for private school students.

Public school groups and officials argued that the interim final rule from the department unfairly deprives their schools and disadvantaged students of crucial funding during the pandemic.

In a preliminary injunction halting enforcement and implementation of the rule while she considers the case pitting Washington state against the Education Department, U.S. District Court Judge Barbara J. Rothstein harshly and repeatedly rejected the department’s arguments. She said that the agency subverted the intent of Congress and hurt students most affected by the pandemic, and that Secretary of Education Betsy DeVos did not have the authority to issue the rule in the first place.

The Education Department’s interim final rule, publicized in June and formally issued in July, pushes school districts to reserve money under the CARES Act, the federal coronavirus stimulus plan, for services to all local private school students, irrespective of their backgrounds. That represents a major departure from how education law typically governs that arrangement, in which federal money for what’s known as “equitable services” goes to disadvantaged, at-risk private school students.

But Rothstein attacked DeVos’ rule as “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.”

“Forcing the State to divert funds from public schools ignores the extraordinary circumstances facing the State and its most disadvantaged students,” she said.

The injunction in the case, issued Friday in the Western District of Washington, represents a setback for the department and a win for public school advocates. Rothstein does not say that her order extends beyond Washington state to other jurisdictions, but she also does not explicitly limit it to the state. And it could be a bad sign for the department in two other lawsuits about the rule, even if its power to change spending decisions on the ground is unclear.

In a statement Saturday, Rep. Bobby Scott, D-Va., the chairman of the House education committee, applauded Rothstein’s ruling and asked DeVos “to abandon its unlawful equitable services rule and finally provide schools the clarity and resources they need…”

DeVos and the department have justified the rule by arguing that the virus has hurt students of all backgrounds, regardless of where they went to school. Public school officials and congressional Democrats have countered that the rule improperly diverts money from disadvantaged students to ultimately benefit private schools, and that it defies the intent of Congress.

Rothstein sided with the second group.

“The nature of this pandemic is that its consequences have fallen most heavily on the nation’s most vulnerable populations, including its neediest students,” she stated. “The funding provided throughout the CARES Act, and in particular to schools, is desperately and urgently needed to provide some measure of relief from the pandemic’s harms, many of which cannot be undone.”

Rothstein pointed to separate CARES funding intended primarily for small businesses that private schools could access.

The judge referred to the Paycheck Protection Program, which supplied millions to many private schools, some of which are richly endowed. Charter schools got funding from both the money set aside for public schools and the PPP, which specifically excluded public schools.