Brief of Amici Curiae (Eureka City Unified School District et al.), National Association for the Advancement of Colored People et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 73 (August 28, 2020)
Summary
Brief of amici curiae Atlanta Public Schools, Eureka City Unified School District, Fairfax County Public Schools and San Antonio Independent School District, in support of the plaintiffs' Motion for Partial Summary Judgment in NAACP et al. v. DeVos, Civil Case No. 1:20-cv-01996 (DLF), in the U.S. District Court for the District of Columbia, Document 73 filed August 28, 2020. It says the proposed amici write about the effects of the U.S. Department of Education's Interim Final Rule on school districts and students. Headings argue that the rule will harm low-income students and public schools whichever allocation option the districts choose. The brief asks the court to grant the motion and is signed /s/ Eric B. Fastiff and /s/ Neeru Gupta.
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“Brief of Amici Curiae (Eureka City Unified School District et al.), National Association for the Advancement of Colored People et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 73 (August 28, 2020).”
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Case 1:20-cv-01996-DLF Document 73 Filed 08/28/20 Page 1 of 29
Kelly M. Dermody*
Eric B. Fastiff (D.D.C. Bar No. 453854)
Michael Levin-Gesundheit*
Christopher Jordan*
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
kdermody@lchb.com
efastiff@lchb.com
mlevin@lchb.com
cjordan@lchb.com
Kartik Sameer Madiraju*
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: 212.355.9500
Facsimile: 212.355.9592
kmadiraju@lchb.com
Counsel for Proposed Amici Curiae Eureka City Unified School District, Fairfax County Public
Schools, and San Antonio Independent School District
[Additional Counsel listed on signature page]
*Pro hac vice pending
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL ASSOCIATION FOR THE Civil Case No. 1:20-cv-01996 (DLF)
ADVANCEMENT OF COLORED
PEOPLE, et al., BRIEF OF AMICI CURIAE,
ATLANTA PUBLIC SCHOOLS,
Plaintiffs, EUREKA CITY UNIFIED
SCHOOL DISTRICT, FAIRFAX
v. COUNTY PUBLIC SCHOOLS,
and SAN ANTONIO
ELISABETH “BETSY” D. DEVOS, in INDEPENDENT SCHOOL
her official capacity as the United States DISTRICT IN SUPPORT OF
Secretary of Education; UNITED PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY
STATES DEPARTMENT OF JUDGMENT
EDUCATION,
Defendants.
Case 1:20-cv-01996-DLF Document 73 Filed 08/28/20 Page 2 of 29
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .............................................................................1
I. INTRODUCTION ........................................................................................10
II. ARGUMENT ................................................................................................13
A. The DOE Rule Will Harm Low-Income Students and Public
Schools No Matter Which Allocation Option Amici Choose ............15
1. The DOE Rule’s first allocation option forces Amici to
divert funds away from low-income and vulnerable
students to private schools regardless of need. ........................16
2. The DOE Rule’s second allocation option would likewise
force Amici to divert CARES Act funds from low-income
students and additionally require them to abandon or
underfund essential programs. .................................................19
B. The Department of Education Rule Burdens and Restricts the
Autonomy of Amici, Whom Congress Trusted to Make Funding
Allocations..........................................................................................21
III. CONCLUSION.............................................................................................24
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TABLE OF AUTHORITIES
Page
Cases
Policy and Research, LLC v. United States Dep’t of Health and Human Servs.,
313 F. Supp. 3d 62 (D.D.C. 2018) .......................................................................14
Statutes
20 U.S.C. § 6301, et seq...........................................................................................13
34 C.F.R. § 76.665(c)(1)(i)(A).......................................................................... 12, 19
34 C.F.R. § 76.665(c)(1)(ii) .............................................................................. 12, 16
85 Fed. Reg. 39,479 (July 1, 2020) ..................................................................... 1, 15
85 Fed. Reg. 39,482 (July 1, 2020) ................................................................... 16, 19
CARES Act § 18001, 134 Stat. 564.........................................................................11
Pub. L. No. 116-136, 134 Stat. 281 (2020) ................................................................1
Title I, Part A, Department of Education,
https://www2.ed.gov/programs/titleiparta/index.html .........................................12
Other Authorities
Fed. R. Civ. P. 7.1 ......................................................................................................2
Local Civil Rule 26.1 .................................................................................................2
Treatises
Strategic Plan, Fairfax County Public Schools, https://www.fcps.edu/about-
fcps/strategic-plan ................................................................................................22
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INTEREST OF AMICI CURIAE
Proposed Amici curiae are four school districts that oversee more than 400
schools, with nearly 350,000 students in their care. Each district provides
elementary and secondary education to a diverse group of children, and
administers programs that address the needs of their students regardless of income
level, primary language, disability, or specialized learning requirements. Each
district allocates federal funding based on the needs of each public and non-public
school, needs that each district is uniquely positioned to assess and understand.
Proposed Amici all depend on funding provided for in the Coronavirus Aid, Relief,
and Economic Security Act (“CARES”) Act to continue providing quality
education and support services to their students, and to ensure that they can reopen
schools safely. See Pub. L. No. 116-136, 134 Stat. 281 (2020). Proposed Amici
write to share a unique perspective on the uniformly negative impacts that the U.S.
Department of Education’s (“DOE”) Interim Final Rule will have on school
districts and students across the country, regardless of district location, size, or
composition. See CARES Act Programs: Equitable Services to Students and
Teachers in Non-Public Schools, 85 Fed. Reg. 39,479 (July 1, 2020) (“the DOE
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Rule”). Below are individual interest statements from each Proposed Amicus
school district.1
Atlanta Public Schools – Atlanta, Georgia
Atlanta Public Schools (“APS”) is a school district serving the Atlanta
region with 91 learning sites, including 58 neighborhood schools and 3 alternative
programs, and over 52,000 students enrolled. The district has over 5,000 teachers.
APS’ mission is to ensure a caring culture of trust and collaboration, with the aim
that every one of its students will graduate ready for college and a career. APS’
goals are to create a school district where students love learning, educators inspire,
families engage, and the community trusts the system. APS has a very diverse
student population in its care. Of its more than 52,000 students, 73% are Black or
African-American, and 7.6% are Hispanic or Latinx. Nearly three-quarters of APS
students qualify for free or reduced-price meals. Over 4,000 APS students report a
disability. APS offers a wide-range of educational and support programs to its
students, such as Atlanta Virtual Academy, an online learning resource that assists
students in remedial learning and recovery of school credits. The district also has a
transition program for students enrolling in its schools after having been
homeschooled. APS provides a Social Emotional Learning program that aims to
1
As government entities, Amici need not file disclosure statements under Federal
Rule of Civil Procedure 7.1 or Local Civil Rule 26.1. This brief was authored by
pro bono counsel from the law firm Lieff Cabraser Heimann & Bernstein, LLP.
No party contributed to the drafting or funding of this brief.
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teach students the knowledge, attitudes, and skills necessary to understand and
manage emotions, set and achieve positive goals, feel and show empathy for
others, and establish and maintain positive relationships. APS also offers a
comprehensive summer learning curriculum at several of its schools, called “Power
Up.” During the COVID-19 pandemic, APS created and continues to operate a
program called “Summer ReCharge,” which offers summer reading, technological
activities, and food distribution services to students as they learn remotely.
As part of its plan to reopen schools safely, APS instituted the “APS Return
+ Learn” protocol that will reopen schools in phases, using a distance and online
learning model and virtual interaction with educators. APS’ broad range of
resources and programs to facilitate virtual and distance learning for its students, as
well as its reopening efforts, are in danger of being underfunded because of the
DOE Rule. APS’ students, a majority of whom is low income and in need of extra
assistance from the District, will be negatively impacted by the DOE Rule.
Eureka City Unified School District – Humboldt County, California
Eureka City Unified School District (“Eureka City Schools”) is a district
overseeing 12 schools in the Humboldt County region of California. Eureka City
Schools have nearly 4,000 students in their care, from kindergarten to the 12th
grade (“K-12”). The district has a diverse student population: 23.5% are Hispanic
or Latinx; 5.6% are Native American; 11% are Asian-American; and 10.5%
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identify as multi-racial. Seventy percent of students in the district qualify for free
or reduced-price meals. Sixteen percent of students have a disability. Eureka City
Schools offer a wide range of educational and support programs for their students,
including an after school program that is free and open to students in kindergarten
through the eighth grade. The program involves students in academic and sports
activities from the end of the school day through 6:00PM, and provides a nutritious
meal to all participating students. Eureka City Schools created the program to care
for its most vulnerable students, and priority for enrollment is given to foster and
homeless youth, students with special academic or financial needs, and to
accommodate families with two working parents or parents who work extended
hours. The district also created an Indian Education Program whose goal is to
address the concerns and amplify the voices of the Native American community in
the district, in partnership with a Parent Advisory Committee led by parents of
Native American students.
Eureka City Schools offers a free breakfast and lunch meal program to its
students enrolled in its after school program, which in addition to the program’s
evening meal, ensures that the district’s most vulnerable students are provided
three meals every school day.
During the COVID-19 pandemic, the district undertook significant efforts to
create a virtual and distance learning program, so that the education of its students
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would not be interrupted. The district offers radio broadcast story-telling sessions
for elementary school students, conducted by Eureka City Schools teachers and
staff, as well as digital learning resources in academic subjects and physical
education for all students. Eureka City Schools implemented both synchronous
and asynchronous online learning, with virtual office hours so that students could
call teachers and receive assistance with schoolwork. To ensure accessibility to
online learning tools for all families, the district distributed more than 2500 laptops
to households within the district, along with more than 225 hotspots for internet
access. Eureka City Schools also changed its grading policy to reflect the impact
of the pandemic on learning and student attention capacity.
The district began offering mental health and counseling support to students
and families of students, including a phone line operated by professional staff, and
a resource center with a food pantry, hygiene supplies, laundry vouchers, and
childcare supplies. The district provides supplies directly to students who are
unable to access the center. Eureka City Schools has also provided over 200,000
free meals to children during the pandemic, and continues to do so.
The DOE Rule will force Eureka City Schools to divert funds away from
schools in need, and will prevent the district from reopening schools safely.
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Fairfax County Public Schools – Fairfax County, Virginia
Fairfax County Public Schools (“FCPS”) is the largest school district in the
state of Virginia, and the tenth largest school district in the United States. It serves
Fairfax County, Virginia, with 198 schools and centers. FCPS is also Virginia’s
third largest employer, employing more than 24,000 teachers, staff, and
administrators. FCPS has over 188,000 students in its care from pre-kindergarten
through 12th grade. The district is very diverse: the student population is 27%
Hispanic or Latinx; 20% Asian; and 10% Black or African-American. FCPS
students speak over 200 languages. Nearly 30% of FCPS students are
economically disadvantaged, while 15% are reported as students with disabilities.
Twenty-seven percent of FCPS students are English Learners.
FCPS believes that school districts can be a catalyst that transform a
community’s most valuable potential—children—and help shape a thriving future
for them. FCPS aims to foster creative thinking, a culture of caring, and lifelong
connections. The district’s mission is to inspire and empower students to meet
high academic standards, lead healthy, ethical lives, and be responsible and
innovative global citizens.
FCPS has a variety of academic and support programs for all of its students,
and for its most vulnerable students. FCPS operates a summer program called
Summer Learning 2020, which includes a fine arts curriculum, a “Tech Adventure
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Camp,” an extended school year program that focuses on vulnerable students,
credit recovery programs, and preschool autism classrooms. FCPS also has a
comprehensive set of resources for students with disabilities, including adapted
physical education, assistive technology services, behavior intervention services,
and assessment options for students with disabilities. FCPS provides an
afterschool program for middle school students that focuses on academic support,
social skills development, community involvement, and programs to prepare
students for the world after high school such as a driver education curriculum.
During the COVID-19 pandemic, FCPS undertook significant efforts to
ensure that several of these resources were available virtually and online. FCPS
instituted distance-learning programs to ensure no interruption in the education of
their students—these resources took into account the needs of students with
disabilities and English learners, as well as students without reliable access to
technology. The District is also offering free breakfast and lunch meals to its
students who are studying remotely, via ‘pop-up’ distribution and pick-up centers,
drop-offs on bus routes, and meal pick-up services at schools.
The DOE Rule will significantly hamper FCPS’ ability to provide
educational and other supporting resources to its students, and will render FCPS
unable to reopen its schools safely.
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San Antonio Independent School District - San Antonio, Bexar County, Texas
San Antonio Independent School District (“SAISD”) is a district overseeing
106 schools in San Antonio, Texas. SAISD has nearly 50,000 students in its care,
from kindergarten through the 12th grade. SAISD’s primary mission is to improve
the lives of children through quality education and preparation for success in
higher education. SAISD believes that every student can learn and achieve at high
levels, that the district is responsible for the education and safety of every student,
and that everyone should be treated with respect. SAISD is one of the largest
school districts in Texas, and has a very diverse student body. Ninety percent of
SAISD students are Hispanic or Latinx, and 6.3% are Black or African-American.
Ninety percent of SAISD students are economically disadvantaged. Twenty
percent of SAISD students are English Learners. More than 10% of the student
population has a disability.
The district operates a Community Eligibility Program that provides free and
reduced-price breakfast and lunch meals to all students during the school year. To
assist families and students with additional support needs, SAISD offers social and
emotional learning programs for students, and employs district social workers that
are trained to work with children and youth. The district offers an extended day
program that provides classes and workshops to students.
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SAISD has implemented a robust protocol to reopen its schools safely,
called Safe School Start. Under the program, SAISD implemented fully remote
and virtual learning, and provided laptop and accessibility devices to students in
need. The district is providing personal protective equipment and masks to
students free of charge, and has started a curbside a bus-stop meal drop off for all
students in remote learning programs. SAISD will be conducting daily health
checks, and implementing comprehensive cleaning and disinfecting procedures.
SAISD will not be able to reopen safely without ensuring that it can allocate
CARES Act relief funds to the schools and students that need it the most. The
DOE Rule will impede SAISD from providing the protection, resources, and
support to its students, and will endanger the safety of its students, educators, and
staff.
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I. INTRODUCTION
Proposed Amici curiae Atlanta Public Schools, Eureka City Unified School
District, Fairfax County Public Schools, and San Antonio Independent School
District are four public school districts from across the nation. They oversee more
than 400 schools and serve nearly 350,000 students. Amici write to underscore the
urgency of Plaintiffs’ request for summary judgment and to highlight the
devastating impacts on America’s most vulnerable children should the U.S.
Department of Education be permitted to execute its unlawful rule on the
Coronavirus Aid, Relief, and Economic Security (“CARES”) Act.
Nearly eight months into the COVID-19 pandemic, every aspect of
American life has been disturbed or uprooted. More than 5.8 million people in the
United States have contracted COVID-19, including over 180,000 people who
have died as a result. Over 124,000 public schools serving grades K-12, like those
in Amici districts here, have physically closed temporarily. More than 55 million
children, most too young to comprehend this tragedy, have been impacted.
Classrooms that have historically invited kids to dream and question and strive
have been forced to pioneer new methods of socially distant or even online
learning, re-packaging an educational experience never before implemented on the
scale or with the socioeconomic diversity of students in American public schools.
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Amici are gravely concerned about what will happen to the students, teachers, and
staff across their districts and the country without increased funding and support.
Fortunately, Congress began responding to this crisis with the CARES Act,
creating the Education Stabilization Fund and appropriating $16.1 billion for
kindergarten through 12th grade educational institutions, like Amici here. Under
the CARES Act, school districts may apply for financial support under three funds:
(1) the Governor’s Emergency Education Relief Fund (“GEER”); (2) the
Elementary and Secondary School Emergency Relief Fund (“ESSER”); and (3) the
Higher Education Emergency Relief Fund (“HEER”). Amici are school districts
who qualify for GEER and ESSER funding. See CARES Act § 18001, 134 Stat.
564.
Despite the clear directive of Congress, however, Defendants improperly
issued an Interim Final Rule (“DOE Rule”), which impermissibly restricted
funding allocated by Congress to K-12 public schools and diverts it to private
schools instead. The DOE Rule forces school districts such as Amici to choose one
of two methods to allocate the amount of CARES Act funds diverted to private
schools in their districts: (1) allocate based on total private school enrollment,
instead of low-income private school enrollment, which drives funding away from
the most economically disadvantaged in the area to those with the greatest
economic advantages; or (2) allocate based only on low-income private school
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enrollment, but face restrictions not found in the CARES Act, including that it may
not fund any non-Title I school in the district2 nor any program previously funded
by state and local dollars. See 34 C.F.R. § 76.665(c)(1)(ii); (c)(1)(i)(A). The DOE
Interim Final Rule is illegal.
Plaintiffs filed suit challenging the administrative and constitutional validity
of the DOE Rule, and filed for a preliminary injunction in light of the imminent
and irreparable harm it would cause to school districts across the country. See Dkt.
No. 35. Recognizing the urgent need to resolve the litigation and adjudicate
Plaintiffs’ claims, this Court entered an expedited briefing schedule on the merits.
See Dkt. No. 41 (and accompanying Order of August 17, 2020, by Freidrich, J.).
Because the Rule will cause grievous harm to young people in the form of
support and staffing shortages at their schools that cannot be undone, and because
it divests authority from the districts to make spending choices focused purely on
what they deem to be in the best interests of their students, Amici urge the Court to
grant Plaintiffs’ Motion for Partial Summary Judgment.
2
A Title I school is any school with at least 40% of the student population
qualifying as low-income, based on census poverty line data or measure such as
eligibility for free and reduced price meals. A non-Title I school is one whose
student population does not meet these low-income proportion thresholds. See
Title I, Part A, Department of Education,
https://www2.ed.gov/programs/titleiparta/index.html (last accessed August 28,
2020).
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II. ARGUMENT
Since approximately March 2020 and continuing into the 2020-2021 school
year, school districts across the country have required unprecedented expenditures,
including for teacher, student, and staff personal protective equipment (“PPE”);
cleaning and disinfecting supplies; testing stations and kits; the hiring of additional
personnel to maintain social distancing principles; and all variety of technical
support for teachers and students thrust into online communication platforms.
School districts are faced with enormous unbudgeted costs, expected to top the
hundreds of billions across the country.
In providing economic relief to school districts, Congress specified that
CARES Act funds used for equitable services3 should be allocated in accordance
with the requirements of the Elementary and Secondary Education Act (“ESEA”)
Section 1117. 20 U.S.C. § 6301, et seq. ESEA Section 1117 directs districts to
allocate equitable services funding based on the number of low-income students in
their district—this method is the traditional calculation that Amici districts employ
each year.
3
Equitable services include: books, materials, and equipment necessary to
implement the Title I program; extended-day services; summer programs; Saturday
programs; counseling programs; computer-assisted instruction (CAI) with non-
instructional computer technicians who supervise computer labs, maintain
discipline, and escort students to and from class; home tutoring; computers and
software products; and take-home computers.
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The DOE Rule places additional and novel restrictions on the allocation of
CARES Act funds that make it practically impossible for public schools and low-
income students to get the resources they urgently need. Without sufficient
funding, public schools will face dire financial challenges in the coming months.
Amici write separately to underscore the urgency of the issues presented by
this case and provide a detailed factual account of the negative impacts the CARES
Act allocation restrictions imposed by Defendants will have on Amici’s low-
income and vulnerable students.
The Court’s prompt consideration of this matter is critical. Expedited
resolution here is well supported given the grave consequences of delayed action.
See Policy and Research, LLC v. United States Dep’t of Health and Human Servs.,
313 F. Supp. 3d 62, 67-70 (D.D.C. 2018) (allowing expedited briefing on the
merits of challenge to agency action suddenly shortening funding period for
adolescent health programs previously approved for five-year grants).
First, the Department of Education Rule will force Amici to divert millions
of dollars away from public schools and low-income students regardless of the
allocation option they select. As a direct consequence of the Rule and its
allocation options, Amici face the prospect of underfunding or altogether
eliminating several programs needed to support students and safely reopen schools.
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The DOE Rule will severely impact Amici’s ability to safely reopen and provide
educational, social, and health services to the students who need it the most.
Second, the DOE Rule impermissibly narrows the autonomy and discretion
afforded to Amici by Congress. By not prescribing a specific allocation method,
Congress acknowledged that school districts are best equipped to address the needs
and funding requirements of their own students. But the DOE Rule does not give
effect to Congress’ words, and instead places limits on Amici’s discretion, and
forces them, in the throes of a pandemic, to implement a novel allocation method
and train administrators in allocation compliance, while simultaneously attempting
to ensure the safety of students and educators. See 85 Fed. Reg. 39,479 (July 1,
2020) (CARES Act). The Rule must be enjoined.
A. The DOE Rule Will Harm Low-Income Students and Public
Schools No Matter Which Allocation Option Amici Choose
Amici and school districts across the country have undertaken significant
efforts and expenditures to ensure students in their care continue their education
during the pandemic, and are now endeavoring to reopen schools safely.
Successfully reopening will require significant economic resources, especially for
public schools that are solely dependent on federal and state funds to operate.
The statutory directive of the CARES Act was a signal from Congress to
school districts that these economic resources were forthcoming. The DOE Rule
instead takes from public schools and hundreds of thousands of vulnerable students
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the essential funding and resources that they desperately need. Choosing either of
the two allocation methods dictated by the DOE Rule would serve only to deprive
Amici’s public schools and their students of educational resources, meal programs,
and protective equipment, thereby endangering their health and education.
If Amici select the first option and allocate funds based on total private
school enrollment, they will be forced to divert funds away from public schools
towards private schools, even if private schools have substantially fewer students
in need. Conversely, should Amici select the second option and allocate based on
low-income enrollment alone, the DOE Rule forces Amici to not fund non-Title I
schools and underfund programs previously receiving state or local funding.
1. The DOE Rule’s first allocation option forces Amici to
divert funds away from low-income and vulnerable students
to private schools regardless of need.
Under the first option, school districts are required to allocate funding to
private schools proportionally based on total private school enrollment. See 85
Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R.§ 76.665(c)(1)(ii). This option does not
account for the number of low-income students in private schools, and will
negatively impact thousands of students in Amici’s public schools. Nearly half of
the students in Amici’s care are low-income and/or qualify for free or reduced-
price meals, but very few of these students attend private school.
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For example, Fairfax County Public Schools applied for and expects to
receive $2,037,089 from the GEER Fund, and has received $21,691,840 from the
ESSER Fund. See Declaration of Dr. Scott Brabrand, Superintendent of Fairfax
County Public Schools (“Brabrand Decl.”) at ¶¶ 10, 11. The district plans to use
these funds for essential resources and support for their students, including
personal protective equipment, curriculum resources, special education
remediation and recovery, and student registration and scheduling. Id. at ¶ 12.
The district also plans to use funds to support students with disabilities who have
an Individualized Education Program, including virtual psychological evaluation,
math and literacy software, and speech and early childhood special education
software. Id. at ¶ 13. Because so many students lack access to the Wi-Fi needed
for remote learning, the district will also be purchasing and providing 1,000 mobile
Wi-Fi units and an unlimited data plan for 5,500 Wi-Fi units for the school year, as
well as laptops and sleeves for virtual learning. Id. at ¶¶ 15, 18. Fairfax County
Public Schools will also use funds to acquire cleaning and sanitizing materials,
disinfection chemicals, and glass protective barriers. Id. at ¶¶ 16, 17.
If they select the DOE Rule’s first option, Fairfax County Public Schools
would be forced to divert $1 million, or 5%, of ESSER funds from public schools
to private schools, even though total low-income private school enrollment is 847
students, which is only 1% of all low-income students in the district. Id. at ¶ 21.
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Eureka City Unified School District would be forced to divert 10% of
CARES Act funds to private schools if it selects the first allocation option, even
though only 300 students in its district are enrolled in private school, and far fewer
qualify as low-income. See Declaration of Dr. Fred Van Vleck, Superintendent of
Eureka City Unified School District (“Van Vleck Decl.”) at ¶¶ 11-13. This
diversion will render the district unable to provide laptops and wireless connection
devices for remote learning to students that need it most. Id. at ¶¶ 10, 13-14.
Because the district is operating on a remote-learning only basis, this technology
and wireless connectivity is an absolute necessity to its most vulnerable students.
Id.
Atlanta Public Schools received $22,948,079 from the CARES Act ESSER
Fund, which it needs to provide remote learning resources for its students and to
implement social distancing and safety protocols in preparation for reopening its
schools. See Declaration of Dr. Lisa Herring, Superintendent of Atlanta Public
Schools (“Herring Decl.”) at ¶¶ 8, 10, 11. APS intends to use its funds to provide
compensatory special education services and to provide personal protective
equipment across the district. Id. at ¶¶ 11, 16. Because APS needed to use these
funds across all of its schools, it reluctantly decided to allocate its funds according
to the first option under the DOE Rule, and as a result was forced to divert $1.1
million to private school students—more than 5% of its total grant. Id. at ¶ 9. Less
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than 0.5% of private school students within APS qualify as low-income. Id.
Because of the DOE Rule, APS allocated to private schools an amount ten times
greater than what ESEA Section 1117 and the CARES Act require. Id. at ¶ 9.
APS has determined that compliance with the DOE Rule will hamper, rather than
facilitate, district efforts to provide personal protective equipment for public
schools and low-income students. Id. at ¶ 11-13, 16. The Rule will make it
difficult for APS to provide special education for students with disabilities, and to
provide a device and wireless connectivity to every child in need. Nevertheless,
despite the restrictive options under the Rule, APS is committed to ensuring that all
of its students receive the resources and support they need. Id. at ¶¶ 11-13, 16.
2. The DOE Rule’s second allocation option would likewise
force Amici to divert CARES Act funds from low-income
students and additionally require them to abandon or
underfund essential programs.
Under the second option provided for in the DOE Rule, school districts are
permitted to allocate funding based on the number of low-income students in
private schools, as required by the CARES Act and by Section 1117 of the ESEA.
See 85 Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R § 76.665(c)(1)(i)(A). However,
should Amici select this option, wishing to restrict private school funds to students
who need it the most, the DOE Rule punishes the districts with two prohibitive
conditions: (1) districts selecting the second option may only allocate to Title I
schools, leaving non-Title I schools with nothing; and (2) districts selecting the
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second option cannot supplant state and local dollars with CARES Act funds, it
may only supplement those funds, at a time when state and local budgets are
severely impacted by the pandemic.
The DOE Rule’s second option would force Amici to underfund programs or
effectively eliminate services that they provided to public schools. Any non-Title I
schools in Amici’s districts would receive nothing.
San Antonio Independent School District has applied for and expects to
receive $21,164,881 from the ESSER Fund, which it plans to use for instructional
continuity, and training to facilitate transition to remote and virtual teaching. See
Declaration of Pedro Martinez, Superintendent of SAISD (“Martinez Decl.”) at
¶ 7. SAISD chose to allocate according to the second option, leaving several of its
schools without CARES Act funds. Martinez Decl. at ¶ 10-11. With restrictions to
its funding, SAISD will need to prioritize the provision of certain programs and
resources over others, instead of being able to support all of its students and
schools. Id. at ¶ 12. To achieve this, the district will need to seek other funding
sources to ensure their COVID-19 response is aligned to meet the needs of their
students. Id. at ¶ 12. Even as the school year begins, SAISD is uncertain whether
other funding sources will be available. Id. at ¶ 13.
Atlanta Public Schools chose the first option under the DOE Rule because
the second option would have left several of its non-Title I schools without funds,
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where large numbers of low-income and vulnerable students are in attendance. See
Herring Decl. at ¶ 14. Eureka City Schools determined that complying with either
of the two options under the DOE Rule would widen the achievement gap between
low-income and other students. See Van Vleck Decl. at ¶ 13. Eureka City Schools
decided not to select the second option, because the severe restrictions imposed by
the second option would make it impossible to purchase the necessary technology
students in its non-Title I schools require to continue learning. Id. at ¶ 14.
Because state and local funds were impacted by the pandemic, Atlanta
Public Schools faced reductions in school budgets, new textbook adoption was
postponed, central office expenses were significantly reduced, and various
educational initiatives planned for the 2020-2021 fiscal year were delayed
indefinitely. See Herring Decl. at ¶ 7. The DOE Rule’s second option would have
prevented APS from addressing these funding gaps; left with no alternative, APS
selected the first option and diverted money to private schools. Id. at ¶ 14.
B. The Department of Education Rule Burdens and Restricts the
Autonomy of Amici, Whom Congress Trusted to Make Funding
Allocations
School district staff, administrators, and educators work tirelessly
throughout the year to ensure a safe and quality educational environment for
students. Their work is multifaceted and complex, and often underappreciated.
The COVID-19 pandemic has only increased their burden. While Congress acted
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to provide some relief by passing the CARES Act, the DOE Rule does the
opposite. The DOE’s allocation scheme will create an unprecedented
administrative burden that undermines Amici’s local autonomy and expertise.
First, the DOE Rule denies the autonomy and disregards the local expertise
of school districts who understand the needs of the schools they administer. Amici
determine allocations months in advance, using detailed strategic plans, and in
consultation with various stakeholders. For example, Fairfax County Public
Schools determines allocations based on its annual Strategic Plan. The 2019-2020
FCPS Strategic Plan aims to achieve four goals using its budget: student success,
caring culture, premier workforce, and resource stewardship.4 To achieve these
goals, the district engaged in lengthy review and consideration, and analyzed data
such as socioeconomic achievement gaps, employee retention, workplace safety,
and new programs to address student and employee needs.5
During the COVID-19 pandemic, Amici have also developed resources
strategically, ensuring that remote learning and meal distribution is equitable and
accessible to the most vulnerable students. The DOE Rule imposes an allocation
approach that fails to account for the diversity of students and school needs in each
4
See Strategic Plan, Fairfax County Public Schools, https://www.fcps.edu/about-
fcps/strategic-plan (last accessed August 27, 2020).
5
Id.
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Amicus district. The Rule forces Amici to make allocations that do not align with
data on the ground or the consensus they reach with community stakeholders.
Second, the DOE Rule imposes a novel administrative burden on Amici that
is not required by the CARES Act or the ESEA. For example, SAISD diverted
staff resources and administrator time to address the new calculation and allocation
methods, which has consequently decreased the time available to address student
health and instructional needs ahead of reopening. See Martinez Decl. at ¶ 14.
SAISD staff will now have additional duties of administering the increased ESSER
fund allocation to private schools, while focusing on their existing role in ensuring
regulatory compliance. Id. at ¶ 15. Absent the DOE Rule, SAISD would have
made its allocations pursuant to existing ESEA and CARES Act statutory
requirements, which its staff are already trained to do. Id. at ¶ 16.
Eureka City Schools will face the additional compliance obligation of
having to determine the demographics and poverty levels of all students enrolled in
private schools within the district. This will divert scarce resources needed at a
time Eureka City Schools is trying to ensure it can provide remote learning
technology to its students, as well as support resources such as mental health
counseling and family engagement services. See Van Vleck Decl. at ¶ 8.
The traditional allocation methods as prescribed in the ESEA, and required
by the CARES Act, would allow Amici to address funding gaps and provide the
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resources their students need. For example, if Atlanta Public Schools were able to
allocate its ESSER funding using traditional calculation methods, the district
would be able to close several budgetary gaps created by the loss of state and local
funding. The DOE Rule upends the allocation method prescribed by statute, and
forces Amici’s administrators to train staff on the new allocation methods, expend
time and resources to ensure compliance with the new method, and revisit funding
amounts with their schools. This administrative burden ultimately translates into
further uncertainty and frustration for parents, teachers, and students.
But for the DOE Rule, Amici would have distributed CARES Act funds
efficiently and equitably to the schools and students that need it the most, and
would be free to prioritize the services that permit them to reopen safely. The
Department of Education Rule stymies this effort.
III. CONCLUSION
Congress acknowledged that Amici are best positioned to make funding
allocation decisions among their schools and students. Under the DOE Rule,
Amici and school districts nationwide will be forced to deny aid to public schools
and economically vulnerable students at a time when they are in greatest need.
The ultimate consequence will be to exacerbate the COVID-19 pandemic, and
jeopardize the health and education of countless children. It is critical the Court
act quickly to prevent this unnecessary tragedy from happening.
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For the reasons stated above, Amici respectfully request that the Court grant
Plaintiffs’ Motion for Partial Summary Judgment. The health and educational
future of millions of children depend on it.
Dated: August 28, 2020 Respectfully submitted,
/s/ Eric B. Fastiff
Kelly M. Dermody*
Eric B. Fastiff (D.C. Bar No. 453854)
Michael Levin-Gesundheit*
Christopher Jordan*
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
Kartik Sameer Madiraju*
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: 212.355.9500
Facsimile: 212.355.9592
Counsel for Proposed Amici Curiae
Eureka City Unified School District,
Fairfax County Public Schools, and San
Antonio Independent School District
/s/ Neeru Gupta
Neeru Gupta*
NELSON MULLINS RILEY &
SCARBOROUGH LLP
201 17th Street NW, Suite 1700
Atlanta, GA 30363
Telephone: 404.322.6109
Facsimile: 404.322.6050
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Case 1:20-cv-01996-DLF Document 73 Filed 08/28/20 Page 29 of 29
Counsel for Proposed Amicus Curiae
Atlanta Public Schools
*Pro hac vice pending
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