Exhibit Attachment 5, State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 1-8 (July 20, 2020)

Summary

Attachment 5, Doc. 1-8 in State of Washington v. DeVos, No. 2:20-cv-01119-BJR (W.D. Wash.), filed July 20, 2020. It is a letter dated May 22, 2020 on Secretary of Education letterhead to Carissa Moffat Miller of the Council of Chief State School Officers, responding to the May 5, 2020 letter on equitable services under the CARES Act. The letter states that the Department disagrees with that interpretation of the law, will issue a rule on the topic in the next few weeks and invite public comments, and that the April 30, 2020 guidance will remain in effect. It says states or districts acting contrary to the Department's position should put into an escrow account the difference between the proportional-student enrollment formula and the Title I, Part A formula. The signature block names Betsy DeVos.

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Case 2:20-cv-01119-BJR Document 1-8 Filed 07/20/20 Page 1 of 4




      Attachment 
         Case 2:20-cv-01119-BJR Document 1-8 Filed 07/20/20 Page 2 of 4
                                   THE SECRETARY OF EDUCATION
                                        WASHINGTON, DC 20202




                                          May 22, 2020



Ms. Carissa Moffat Miller
Executive Director
Council of Chief State School Officers
One Massachusetts Ave, NW, Suite 700
Washington, DC 20001

Dear Ms. Miller:

Thank you for your May 5, 2020, letter on behalf of state education leaders from across the
country, in which you challenged the U.S. Department of Education’s (the Department’s) non-
regulatory guidance concerning equitable services under the Coronavirus Aid, Relief, and
Economic Security (CARES) Act.

The Department disagrees with your interpretation of the law, but we appreciate that some of
your constituents have a sincere difference of opinion. As a result, we will be issuing a rule on
the topic in the next few weeks and inviting public comments. We trust that process will resolve
any issues in plenty of time for the next school year.

In the meantime, the Department’s guidance document (Providing Equitable Services to Students
and Teachers under the CARES Act Programs, published April 30, 2020) will remain in effect
and inform our enforcement of the CARES Act. Please let your members know that, consistent
with the law, they should be ensuring that local educational agencies (LEAs) are holding
meaningful consultation with nonpublic school representatives. If they or their district
superintendents insist on acting contrary to the Department’s stated position, they should, at
minimum, put into an escrow account the difference between the amount generated by the
proportional-student enrollment formula and the Title I, Part A formula. That way, non-public
school students and teachers can begin to receive at least some of the equitable services to which
they are entitled.

For the record, we believe your membership fundamentally misunderstands the statutory text
mandating equitable services. The CARES Act is a special, pandemic-related appropriation to
benefit all American students, teachers, and families. There is nothing in the Act suggesting
Congress intended to discriminate between children based on public or non-public school
attendance, as you seem to do. The virus affects everyone.

Your members ask us to read the phrase “equitable services in the same manner as provided
under section 1117 of the ESEA of 1965” as if Congress simply incorporated the entirety of
section 1117 by reference. But this cannot be right. It is not supported by the CARES Act’s
plain language, would improperly discriminate against an entire class of children, and prevent a
reasoned and harmonious construction of the law giving effect to all relevant statutory
provisions.
         Case 2:20-cv-01119-BJR Document 1-8 Filed 07/20/20 Page 3 of 4
Letter to Ms. Miller
Page 2



To be clear, the CARES Act is not a Title I program, although we see how Congress’ use of the
Title I, Part A formula as a first cut to distribute resources to LEAs through the Elementary and
Secondary Schools Emergency Relief Fund (ESSER Funds) might be misleading to some. To
begin with, the CARES Act’s student eligibility and use of funds provisions are significantly
broader than those under Title I, Part A. As you know, section 1117(a)(3) requires that
educational services and other benefits for students in non-public schools must be equitable in
comparison to those for public school students. As you also know, 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-income students and their teachers. Similarly, there is no limitation on
attending a Title I school to receive services under CARES Act programs. Therefore, to make
services equitable in comparison to public school students, it follows that the same principles
must apply in providing equitable services to all non-public school students and teachers.

We also note the requirement to provide equitable services is “in the same manner as provided
under section 1117.” By using the phrase “in the same manner,” Congress appears to
acknowledge that equitable services under the CARES Act cannot be provided exactly like Title
I, Part A services, which makes sense given the CARES Act’s particular funding structure (e.g.
CARES Act eligibility is not limited by poverty, low-achievement, or residence as under section
1117) and separate consultation and public control of funds provisions, among other things. Had
it been otherwise, Congress would have simply and explicitly directed LEAs to provide equitable
services under section 1117. It did not do so, contrary to the assertion in your letter.

Given the practical interplay between the CARES Act and section 1117, it is reasonable to
determine that the proportional share of CARES Act funds should be budgeted for equitable
services based on enrollment. It is worth noting that poverty is already accounted for in the LEA
allocations under the ESSER Fund through the Title I, Part A formula. Similarly, the Governor’s
Education Emergency Relief Fund (GEER Fund) state allocation is based significantly on each
State’s share of Title I formula children but is explicitly authorized and designed to serve all
students and teachers. In determining the share of CARES Act funds for equitable services
based on enrollment, less than 10 percent of the funding nationwide will be provided for
equitable services for non-public school students and teachers, with more than 90 percent of the
funding directed to public school students and teachers.

We trust that LEAs understand their general obligations to provide equitable services to students
and teachers in non-public schools when they accept money from the $13.2 billion ESSER Fund
or the $3 billion GEER Fund. Although I understand their reflex to share as little as possible
with students and teachers outside of their control, I would remind states and LEAs that their
non-public school peers have also been overwhelmed by COVID-19. All students and teachers
have had their learning disrupted. A growing list of non-public schools have announced they
will not be able to re-open, and these school closures are concentrated in low-income and
middle-class communities. I would encourage educators everywhere to be as concerned about
those students and teachers as they are with those in public schools.
         Case 2:20-cv-01119-BJR Document 1-8 Filed 07/20/20 Page 4 of 4
Letter to Ms. Miller
Page 3


Again, the Department appreciates the opportunity to engage with you and your members. We
look forward to continuing to work together to assist state education leaders and LEAs as they
implement the CARES Act programs.

                                            Sincerely,



                                            Betsy DeVos


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