Amicus Brief of Private School Associations, Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 46
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Amici private school associations' and advocacy groups' amicus brief in support of Defendants and in opposition to the preliminary injunction, filed 08/06/20 in State of Washington v. DeVos, No. 2:20-cv-1119-BJR, before the Honorable Barbara J. Rothstein. The table of contents lists an introduction, the identity and interest of amici, and arguments that the CARES Act requires an "equitable" distribution between public and private schools, that harm and public interest arguments cut equally in the opposite direction when private schools are considered, and that private schools are an integral part of education across the country. The signature page names attorneys for the Buckeye Institute and the Goldwater Institute.
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“Amicus Brief of Private School Associations, Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 46.”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/leave-to-file-document-state-of-washington-v-devos-no-2-20-cv-01119-w-b0b253f951/
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Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 1 of 21
1 HONORABLE BARBARA J. ROTHSTEIN
2
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7 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINTON
8 AT SEATTLE
9
10 STATE OF WASHINGTON, No. 2:20-cv-1119-BJR
11 Plaintiff, AMICI PRIVATE SCHOOL
ASSOCIATIONS’ AND ADVOCACY
12 v. GROUPS’ AMICUS BRIEF IN
SUPPORT OF DEFENDANTS AND IN
13 BETSY D. DeVOS, in her official capacity as OPPOSITION TO PRELIMINARY
the United States Secretary of Education, and INJUNCTION
14 UNITED STATES DEPARTMENT OF
EDUCATION,
15
Defendants.
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Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Phone: (360) 956-3482
Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 2 of 21
1 TABLE OF CONTENTS
2 INTRODUCTION ...........................................................................................................................1
3 IDENTITY AND INTEREST OF AMICI ......................................................................................2
4 ARGUMENT ...................................................................................................................................6
5 I. The CARES Act Requires an “Equitable” Distribution Between Public and Private
6 Schools, Contrary to Plaintiff’s Interpretation .....................................................................6
7 II. The Same Harm and Public Interest Arguments Raised by Plaintiff Cut Equally in
8 the Opposite Direction When Private Schools Are Considered ........................................10
9 III. Private Schools Are an Integral Part of Education Across the Country ............................13
10 CONCLUSION ..............................................................................................................................15
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Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page i Phone: (360) 956-3482
Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 3 of 21
1 TABLE OF AUTHORITIES
2 Cases
3 Bd. of Educ. v. Allen,
4 392 U.S. 236 (1968) .......................................................................................................... 13
5 Gundy v. United States,
6 139 S. Ct. 2116 (2019) ........................................................................................................ 9
7 Legacy Emanuel Hosp. & Health Ctr. v. Shalala,
8 97 F.3d 1261 (9th Cir. 1996) .............................................................................................. 8
9 Loughrin v. U.S.,
10 573 U.S. 351 (2014) ...................................................................................................... 7, 10
11 S.E.C. v. McCarthy,
12 322 F.3d 650 (9th Cir. 2003) ........................................................................................ 7, 10
13 Wayman v. Southard,
14 23 U.S. (10 Wheat.) 1 (1825) .............................................................................................. 9
15 Statutes
16 20 U.S.C. § 6314 ............................................................................................................................. 8
17 20 U.S.C. § 6315 ............................................................................................................................. 8
18 20 U.S.C. § 6320 ............................................................................................................... 7, 8, 9, 10
19 CARES Act § 18002 ............................................................................................................. 6, 7, 10
20 CARES Act § 18003 ......................................................................................................... 6, 7, 9, 10
21 CARES Act § 18005 ............................................................................................................. 7, 8, 10
22 CARES Act § 5001 ....................................................................................................................... 12
23 Other Authorities
24 A. Egalite & P. Wolf, A Review of Empirical Research on School Choice, 91 Peabody
25 Journal of Education 441 (2016)....................................................................................... 15
26 A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts (2012)................. 7, 8, 10
27 C. DeAngelis & P. Wolf, Private School Choice and Character: More Evidence from
28 Milwaukee, EDRE Working Paper 2019-03 (2019) ......................................................... 15
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page ii Phone: (360) 956-3482
Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 4 of 21
1 Coronavirus Relief Fund: Guidance for State, Territorial, Local, and Tribal Governments,
2 United States Department of the Treasury (Updated June 30, 2020) ............................... 12
3 COVID-19 Permanent Private School Closures, Cato Institute,
4 https://www.cato.org/covid-19-permanent-private-closures ............................................ 11
5 Fast Facts: Public and Private School Comparison, National Center for Education
6 Statistics ............................................................................................................................ 13
7 J. Cowen, et al., Student Attainment and the Milwaukee Parental Choice Program: Final
8 Follow-up Analysis, School Choice Demonstration Project (Feb. 2012) ......................... 14
9 K-12 School District Finance Date, Washington State. ............................................................... 12
10 Libby Sobic & Jessica Holmberg, In This Together: How private and public charter
11 schools are serving their families and communities during the COVID-19 crisis,
12 WILL (Mar 27, 2020) ....................................................................................................... 14
13 Liv Finne, School funding in the 2019 legislative session; Washington state public
14 schools now receive more money than most private schools, Washington Policy
15 Center (July 2019)............................................................................................................. 12
16 P. Wolf & M. McShane, Is the Juice Worth the Squeeze? A Benefit/Cost Analysis of the
17 District of Columbia Opportunity Scholarship Program, 8 Education Finance and
18 Policy 74 (2013) ................................................................................................................ 15
19 P. Wolf, Do Voucher Students Attain Higher Levels of Education? Extended Evidence
20 from the Milwaukee Parental Choice Program, Urban Institute (Feb. 2018) .................. 14
21 Private School Statistics at a Glance, CAPE, https://www.capenet.org/facts.html ..................... 13
22 Robert C. Enlow, The K-12 Financial Cliff: What States Could Face if Students Switch
23 Schooling Sectors, EdChoice (Apr. 20, 2020) .................................................................. 12
24 Sarah D. Sparks, Catholic School Closures Rise Amid COVID-19, Recession, Ed Week
25 (June 9, 2020).................................................................................................................... 11
26 School Safety Report, School Choice Wisconsin (2014) .............................................................. 14
27 Rules
28 34 C.F.R. § 76.665 .......................................................................................................................... 9
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page iii Phone: (360) 956-3482
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1 INTRODUCTION
2 The CARES Act provides $16 billion in federal funding to support both public and private
3 elementary and secondary schools impacted by the ongoing COVID-19 pandemic. Congress gave
4 the Department of Education precise instructions for how to allocate these funds among States and
5 among local school districts within States. It also required that money allocated to a district be
6 shared between public and private schools. But instead of specifying the precise way that this was
7 to be done, Congress directed the Department to ensure that private school students receive
8 “equitable” services to those provided public school students using CARES Act funds. To that
9 end, the Department developed a simple and sensible rule that offers States and local school
10 districts two alternatives for distributing these funds while ensuring an “equitable” distribution
11 between public and private schools. If a State or local school district uses CARES Act funds to
12 benefit all students, then under the rule the funds must be distributed proportionally based on the
13 total number of students in public and private schools. If, on the other hand, a State or local school
14 district selects to use CARES Act funds to provide services that benefit only low-income or at-risk
15 students or schools, then under the rule the funds may be allocated based on the proportion of such
16 students in public and private schools.
17 Plaintiff Washington State asks this Court to invalidate the Department’s sensible rule and
18 instead impose an inequitable distribution that would favor public schools to the detriment of
19 private schools and the students they serve. And Plaintiff’s case rests on a textual argument that
20 violates a basic canon of statutory construction—that different words mean different things,
21 especially in the same sections of the same Act dealing with the same general issue. Plaintiff here
22 wants the Department to be required to distribute money between public and private schools in
23 proportion to how funds are distributed to states and among local districts. Congress could have
24 done that, but it did not. It specifically used different words to address the different allocation
25 among private and public schools within a district, referencing the requirement for equity. The
26 Department, quite wisely, decided that equity would turn on the uses to which these funds are
27 being put. If spent only on Title I students, then allocation in proportion to these students is
28 equitable. If spent on all students, then allocation in keeping with a private school’s share of all
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 1 Phone: (360) 956-3482
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1 students meets that requirement.
2 Plaintiff also unfairly suggests that the Department’s rule unlawfully diverts millions of
3 CARES Act funds away from public schools, while completely ignoring the effect its requested
4 injunction would have on private schools, which face the same challenges due to the COVID-19
5 crisis. Amici file this brief to call this Court’s attention to the flaws in Plaintiff’s legal theory and
6 to highlight the harms an injunction will have on private schools. For the reasons discussed herein,
7 Amici request the Court deny Plaintiff’s motion for a preliminary injunction.
8 IDENTITY AND INTEREST OF AMICI1
9 The United States has over 33,000 private schools, with over five million students. Amici
10 are 39 associations and advocacy groups that represent and support private schools and their
11 families in Washington, Arizona, Arkansas, California, Colorado, Florida, Illinois, Indiana,
12 Louisiana, Michigan, Mississippi, Nevada, New Mexico, North Dakota, Ohio, Oklahoma,
13 Pennsylvania, Tennessee, Texas, Wisconsin, and throughout the nation. Amici include Catholic,
14 Orthodox Jewish, Islamic, Lutheran, other Christian, and independent secular schools, and
15 collectively serve millions of students:
16 Council for American Private Education (CAPE) is a coalition of national organizations
17 and state affiliates serving private elementary and secondary schools. CAPE member
18 organizations represent about 80 percent of private school enrollment nationwide.
19 National Catholic Educational Association (NCEA) is a professional membership
20 organization representing almost 150,000 Catholic educators serving more than 1.7 million
21 students in Catholic elementary and secondary schools. NCEA serves as a national voice
22 for Catholic schools, which are ministries of the Catholic Church in America.
23 Agudath Israel of America, founded in 1922, is a national grassroots Orthodox Jewish
24 organization. Agudath Israel serves as a liaison between government at the federal, state,
25 and local levels and the entire spectrum of Orthodox Jewish educational institutions in the
26 United States, including approximately 750 day schools educating over 250,000 students.
1
No counsel for a party authored this brief in whole or part, nor did any person or entity, other than amicus
or its counsel, make a monetary contribution to the preparation or submission of this brief.
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 2 Phone: (360) 956-3482
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1 Council of Islamic Schools in North America (CISNA) is committed to promoting
2 quality education at Islamic schools through advocacy, accreditation services, and
3 professional development. CISNA has 101 member schools serving 23,000 students.
4 Association of Christian Schools International (ACSI) is a nonprofit association
5 providing support services to 2,500 Christian preschools and elementary and secondary
6 schools and 90 post-secondary institutions in the U.S.
7 Association of Christian Teachers and Schools is a national association of roughly 200
8 Christ-centered, Bible-based schools, serving over 26,000 students throughout the country.
9 WELS Commission on Lutheran Schools exists to provide resources, support, and
10 training for starting and strengthening Lutheran schools of the Wisconsin Synod. WELS
11 schools educate over 42,000 students in its 434 schools located in 33 states.
12 Washington State Catholic Conference is the common voice of the bishops in the
13 archdiocese and dioceses in Washington, with schools serving over 27,000 students.
14 Washington Federation of Independent Schools (WFIS) is a nonprofit, nonpartisan,
15 membership organization representing 83,000 children in over 500 preK-12 schools across
16 Washington since 1970.
17 American Federation for Children (AFC) is a 501(c)(4) issue advocacy organization
18 with state-based chapters in 11 states that seeks to empower families, especially lower-
19 income families, with the freedom to choose the best K-12 education for their children.
20 EdChoice is a 501(c)(3) nonpartisan, nonprofit organization and national leader in
21 educational-choice research, legal defense and education, fiscal analysis, and policy
22 development, whose mission is to advance educational freedom and choice for all.
23 Catholic Education Partners works with state Catholic conferences, Bishops and other
24 clergy, school leaders and families, and others to advance policies that allow more families
25 to access Catholic education, while protecting the autonomy and integrity of schools.
26 Washington Policy Center (WPC) is a Washington-based, independent, non-profit think
27 tank that seeks to improve Washington’s ability to educate every child by giving parents,
28 principals, and teachers more control over the spending of public education dollars.
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 3 Phone: (360) 956-3482
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1 California Catholic Conference (CCC) is the public policy arm of the Catholic Church
2 in California and speaks on behalf of California’s two archdioceses and ten dioceses, which
3 include over 500 elementary and 100 secondary schools with roughly 208,000 students.
4 Colorado Catholic Conference (CCC) represents the four Colorado bishops and three
5 dioceses in public policy, advancing Catholic social teaching and the common good,
6 including on behalf of the 54 Catholic schools in Colorado and their nearly 14,000 students.
7 Colorado Association of Private Schools (CAPS) is an association of 65 private schools
8 operating in Colorado, whose primary mission is to preserve the independence of
9 Colorado’s private schools and to uphold parental choice in education.
10 Indiana Non-Public Education Association was established in 1974 as a membership
11 association for non-public schools in Indiana. Today, the membership includes about 400
12 schools, including religious and independent secular schools.
13 Michigan Catholic Conference (MCC) is a Michigan nonprofit membership corporation
14 founded in 1963 that serves as the official voice of the Catholic Church in Michigan on
15 matters of public policy, including education issues, and provides various services to the
16 222 Catholic schools, with over 50,000 students, throughout the State of Michigan.
17 Michigan Association of Non-Public Schools (MANS) was formed in 1972 as a service
18 provider and association of nonpublic schools in Michigan and serves 455 schools and their
19 students to ensure they receive required services relating to health, safety, and welfare.
20 Midsouth Association of Independent Schools is an association representing 122 private
21 schools in Arkansas, Mississippi, Louisiana, and Tennessee, with over 40,000 students.
22 Catholic Conference of Oklahoma (CCO) represents the Catholic Church in Oklahoma
23 in all matters concerning public policy. In that role, CCO advocates for polices that aid the
24 35 Catholic schools in Oklahoma that educate more than 5,000 students.
25 Pennsylvania Affiliate of the Council for American Private Education (PACAPE) is a
26 nonpartisan association representing 90% of the private school community in
27 Pennsylvania, which serves over 200,000 students and 50,000 teachers and staff.
28 Texas Private Schools Association is a Texas-based association that represents roughly
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 4 Phone: (360) 956-3482
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1 900 accredited private schools throughout Texas, serving over 250,000 students.
2 Wisconsin Council of Religious & Independent Schools (WCRIS) is a nonprofit,
3 nonpartisan, membership organization representing 100,000 children and more than 10,000
4 teachers and staff in 600 K-12 schools across Wisconsin since 1974.
5 Wisconsin Catholic Conference (WCC), led by the Roman Catholic bishops of
6 Wisconsin, is the public policy voice of the Catholic Church throughout the state and
7 represents the nearly 280 Catholic schools in Wisconsin serving roughly 53,000 students.
8 School Choice Wisconsin Action is a membership organization that advocates on behalf
9 of the 342 private schools participating in the Wisconsin Private Parental Choice Programs.
10 Goldwater Institute is an Arizona-based nonpartisan public policy and research
11 foundation, with a principal goal of defending the right of parents to choose the best
12 educational options for their children, including private options when they see fit.
13 California Policy Center is a non-profit focused on advancing public policies to improve
14 California’s economy, including expanding school choice regardless of families’ zip codes.
15 James Madison Institute (JMI) is Florida’s premier free-market think tank. Founded in
16 1987 by Dr. Stan Marshall, a former president of Florida State University, JMI has long
17 been a proponent of free-market solutions in K-12 and higher education.
18 Liberty Justice Center is an Illinois-based, nonprofit, nonpartisan, public-interest law
19 firm that seeks to protect fundamental rights through precedent-setting litigation, including
20 its defense of parental choice in education in legal settings nationwide.
21 Mackinac Center for Public Policy is a Michigan-based, nonpartisan research and
22 educational institute committed to expanding opportunities for Michigan student success
23 by empowering families with access to a variety of effective educational options.
24 Great Lakes Education Foundation is a Michigan-based foundation committed to
25 researching and promoting educational opportunity for every Michigan family.
26 Mississippi Center for Public Policy is a Mississippi-based think tank that believes in
27 parents’ right to direct their children’s education and advocates for policy solutions to
28 expand public and private educational opportunities for Mississippi children.
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 5 Phone: (360) 956-3482
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1 Nevada Policy Research Institute (NPRI) is a Nevada-based nonpartisan education and
2 research organization fighting to empower parents with the freedom to choose the
3 educational options that best suit their children’s unique needs.
4 Rio Grande Foundation is New Mexico’s free market public policy think tank that
5 advocates for educational choice and improved student outcomes in the K-12 system.
6 Roughrider Policy Center is a North Dakota–based think tank committed to expanding
7 opportunities for student success by empowering families with access to a variety of
8 educational options, using high quality research to inform policymakers and the public.
9 Buckeye Institute is an Ohio-based nonpartisan, nonprofit organization founded in 1989
10 as an independent research and educational institution. The Buckeye Institute has been a
11 longtime proponent of public policy solutions for education reform.
12 Commonwealth Foundation is an issue-based nonprofit in Pennsylvania that aims to
13 advance public policies that empower parents to choose the best school for their child’s
14 needs, regardless of race, income, or zip-code.
15 School Choice Wisconsin is a Wisconsin-based, nonprofit policy and advocacy
16 organization that seeks to empower parents by developing, supporting, and promoting the
17 ideas and policies that create vibrant, quality options in K-12 education in Wisconsin.
18 ARGUMENT
19 I. The CARES Act Requires an “Equitable” Distribution Between Public and Private
20 Schools, Contrary to Plaintiff’s Interpretation
21 The CARES Act appropriates roughly $16 billion for grants to support both public and
22 private schools impacted by the COVID-19 pandemic, via two separate funds: the Elementary and
23 Secondary School Emergency Relief (ESSER) Fund and the Governor’s Emergency Education
24 Relief (GEER) Fund. See Coronavirus Aid, Relief, And Economic Security Act (“CARES Act”),
25 H.R. 748, 116th Cong. (2020), §§ 18002, 18003. The provisions establishing these funds each
26 adopt precise formulas for how the money is to be allocated among States and among school
27 districts within a State. For the ESSER fund (which accounts for approximately 82% of the $16
28 billion), grants “shall be allocated … to each State in the same proportion as each State received
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 6 Phone: (360) 956-3482
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1 under [Title I] in the most recent fiscal year.” CARES Act § 18003(b). And for local districts
2 within a State, ESSER funds shall be distributed “in proportion to the amount of funds such local
3 educational agencies … received under [Title I] in the most recent fiscal year.” CARES Act
4 § 18003(c). Similarly, the CARES Act directs that GEER funds shall be allocated to each State
5 using a precise formula: “60 percent on the basis of their relative population” and “40 percent on
6 the basis of their relative number of children under section 1124(c) of [Title I].” CARES Act
7 § 18002(b). Thus, the plain language requires that CARES Act disbursements for States and local
8 school districts must directly incorporate, either in whole or in part, the Title I formulas.
9 Section 18005 of the CARES Act then provides that any “local educational agency
10 receiving funds under sections 18002 [GEER Fund] or 18003 [ESSER Fund]” must provide
11 “equitable services” to “students and teachers in non-public schools.” CARES Act § 18005(a). Put
12 differently, funds allocated to a district must be equitably shared with private schools. Unlike the
13 subsections just described for the allocations among States and among local school districts—
14 which directly import the Title I formulas with phrases like “in the same proportion as”—Section
15 18005 provides that these “equitable services” shall be supplied to private schools “in the same
16 manner as provided under section 1117 of [Title I].” Like other parts of Title I, Section 1117
17 contains a formula for the allocation of funds to private schools, see 20 U.S.C. § 6320(a)(4)(A),
18 so Congress could have said, like it did for the inter-State and inter-district allocations, that CARES
19 Act funds should be distributed between public and private schools “in the same proportion as”
20 under Section 1117. But it did not. Instead, it said that private schools shall be provided “equitable
21 services” “in the same manner as” Section 1117 of Title I.
22 Why the difference? A foundational canon of statutory construction is that “different
23 term[s] denote[ ] a different idea.” See A. Scalia & B. Garner, Reading Law: The Interpretation of
24 Legal Texts 170 (2012); Loughrin v. U.S., 573 U.S. 351, 357 (2014); S.E.C. v. McCarthy, 322 F.3d
25 650, 656 (9th Cir. 2003) (“the use of different words or terms within a statute demonstrates that
26 Congress intended to convey a different meaning for those words”) (collecting cases). This canon
27 is most relevant where, like here, two closely related subsections of the same act, dealing with the
28 same basic question (allocation of funds between States and districts versus between public and
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
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Page 7 Phone: (360) 956-3482
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1 private schools), use very different phrases. See Scalia & Garner, supra, at 173; Legacy Emanuel
2 Hosp. & Health Ctr. v. Shalala, 97 F.3d 1261, 1265 (9th Cir. 1996) (“the use of different terms in
3 adjacent provisions … creates a presumption that [Congress] intended the terms to have different
4 meanings”). So the phrase “in the same manner as” must mean something different than “in the
5 same proportion as.” The interpretive question for the Department, and for this Court, is what does
6 “in the same manner as” mean?
7 Fortunately, there is a relatively simple explanation. Due to certain differences between the
8 CARES Act and Title I, a wholesale incorporation of Section 1117’s allocation formula would
9 actually undermine Congress’s primary goal of ensuring that private school students receive
10 “equitable services” to those provided to public school students. Thus Congress used more flexible
11 language—“in the same manner”—to allow the Department to determine how to distribute these
12 funds “equitably.” Further background on Title I and the CARES Act helps to illustrate the point.
13 Title I is a program designed to provide academic and supportive services directly to low-
14 income and at-risk students or at-risk public schools, see 20 U.S.C. §§ 6314; 6315(c). Section
15 1117, the section referenced in § 18005 of the CARES Act, requires services for similar students
16 in private schools. The core principle underlying Section 1117 is that private school students
17 should receive similar services to those provided to public school students. Indeed, Section 1117
18 says this directly: “Educational services and other benefits for such private school children shall
19 be equitable in comparison to services and other benefits for public school children participating
20 under this part.” 20 U.S.C. § 6320(3)(A). And Section 1117 repeats the word “equitable” in ten
21 other places: (a)(1)(A) (“on an equitable basis”); (a)(1)(B) (same); (e) (same); (a)(4)(D)
22 (“equitable share”); (b)(1) (“equitable and effective programs”); (b)(1)(E) (“equitable services”);
23 (b)(1)(J) (same); (b)(4) (same); (c) (same); (b)(5) (“equitable”).
24 There is an important difference, however, between Title I and the CARES Act. Title I
25 services are provided directly to low-income and at-risk students or are part of programs within
26 at-risk schools, 20 U.S.C. §§ 6314; 6315(c), whereas CARES Act funds may be used to benefit all
27 students, regardless of whether the students themselves or their schools would qualify under Title
28 I. Such uses include “provid[ing] technology for online learning to all students,” “training and
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 8 Phone: (360) 956-3482
Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 13 of 21
1 professional development for staff” about “minimizing the spread of infectious diseases,”
2 “purchasing supplies to sanitize and clean the facilities,” “planning for and coordinating during
3 long-term closures,” “providing principals and others school leaders with the resources necessary
4 to address the needs of their individual schools,” and “other activities that are necessary to maintain
5 the operation of and continuity of services” such as “continuing to employ existing staff.” CARES
6 Act §§ 18003(d)(3), (6), (7), (8), (12). CARES Act funds can also be used for Title I services
7 provided directly to at-risk students or schools but the funds are not restricted to that.
8 Given that CARES Act funding can be used to support schools in a way that benefits all
9 students, Congress realized that it could not both mechanically apply the Title I allocation
10 formula—as it did for the allocations among States and districts—and at the same time ensure that
11 private schools receive “equitable services.” Thus, Congress instead used more flexible language,
12 directing the Department to adopt a public-private allocation “in the same manner as” section 1117,
13 while leaving to the Department to “fill up the details.” Gundy v. United States, 139 S. Ct. 2116,
14 2136 (2019) (Gorsuch, J., dissenting) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43
15 (1825)). And the Department’s interim rule does so in a way most consistent with the heart of
16 Section 1117, namely that the funds provided to private schools are “equitable in comparison to
17 services and other benefits for public school children.” 20 U.S.C. § 6320(3)(A). The Department’s
18 Rule gives school districts flexibility in how they use CARES Act funds, but requires an allocation
19 that will preserve an “equitable” distribution: if CARES Act funds are used to benefit all students,
20 then the funds must be distributed in proportion to the total number of students in public and private
21 schools; alternatively, if used to benefit only Title I students or schools, then the funds may be
22 distributed in proportion to the number of Title I students. 34 C.F.R. § 76.665(c).2
23 To give a simple example, if a State or local school district decides to use CARES Act
24 funds to help schools “provide technology for online learning to all students,” § 18003(d)(8), the
25 cost of that will obviously be a function of the total number of students in the school, not just the
26 number of Title I students. The only way to guarantee an “equitable service” for private schools,
2
Some Amici believe the most “equitable” approach would be an allocation based on the total number of
students and submitted comments to the Department to that effect. Still, the Department’s middle-ground
approach is far more equitable than what Plaintiff argues for.
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
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1 as required by § 18005(a), would be a proportional grant towards virtual learning technology for
2 “all” of their students as well. So too with many of the other approved uses of CARES Act funds.
3 The costs of “training and professional development for staff” and “other activities that are
4 necessary to … continuing to employ existing staff,” § 18003(d)(6), (12), depend on the number
5 of staff, which is most closely correlated with the total number of students in the school. And the
6 costs of “purchasing supplies to sanitize and clean the facilities,” or other “resources necessary to
7 address the needs of their individual schools,” § 18003(d)(3), (7), depend on the physical size of
8 the school, which, again, is most closely correlated with the total number of students in the school.
9 Plaintiff asks this Court to interpret the CARES Act to require a public-private allocation
10 that is calculated exclusively based on the number of Title I students, while allowing public schools
11 to use those funds to benefit all students. That interpretation is not only not required by the text of
12 CARES Act, it is actually inconsistent with the Act, because private schools would not receive
13 “equitable services,” as required directly by § 18005(a), nor would such a distribution be “in the
14 same manner as” Section 1117, which heavily emphasizes that services to public and private
15 school students should be equivalent, 20 U.S.C. § 6320(3)(A).
16 Plaintiff’s arguments ultimately boil down to a single flawed textual theory: that the phrase
17 “in the same manner” is equivalent to “in the same proportion.” That cannot be the correct
18 interpretation. If that’s what Congress intended, it could have said so directly, using the exact same
19 language it used just two sections earlier to establish the allocations among States and among local
20 school districts within a State. See CARES Act § 18003(b) (“in the same proportion as”); id. §
21 18003(c) (“in proportion to”); id. § 18002(b) (“on the basis of”). By equating “in the same manner”
22 with “in the same proportion,” Plaintiff’s interpretation violates the different-words-have-
23 different-meanings canon of statutory construction. See Scalia & Garner, supra at 170; Loughrin,
24 573 U.S. at 357; McCarthy, 322 F.3d at 656.
25 This Court should deny Plaintiff’s preliminary injunction motion on this basis alone.
26 II. The Same Harm and Public Interest Arguments Raised by Plaintiff Cut Equally in
27 the Opposite Direction When Private Schools Are Considered
28 In the harm and public interest sections of its preliminary injunction brief, Plaintiff paints
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
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1 a one-sided picture of the Rule’s effect on public schools, while completely ignoring the
2 concomitant effect on private schools if this Court were to grant its injunction. Dkt. 8:19–24. This
3 case involves a fixed pot of funds and the allocation of that money between public and private
4 schools, so all of Plaintiff’s arguments about harm and the public interest cut in the opposite
5 direction with the exact same force with respect to private schools. Thus, none of these factors cut
6 in favor of a preliminary injunction.
7 Private schools have been hit equally hard by the COVID-19 pandemic. Like public
8 schools, private schools also need assistance “to purchase protective equipment, acquire remote
9 learning technology, and pay staff to handle other exigencies that have arisen during the pandemic”
10 Dkt. 8:22; see Sarah D. Sparks, Catholic School Closures Rise Amid COVID-19, Recession, Ed
11 Week (June 9, 2020)3 (noting the unexpected costs of “cleaning and supplies”). Like public
12 schools, private schools also face many other “extraordinary needs” due to the crisis. Dkt. 8:22. If
13 the Court grants Plaintiff’s requested injunction, private schools (like those represented by the
14 Amici) will suffer the same “irreparable harm” to their schools and the students they serve that
15 Plaintiff alleges will occur without an injunction: they will lose out on CARES Act funds that
16 Congress intended should go to them, supra Part I.
17 In fact, the situation is in many ways worse for private schools than for public schools,
18 because private schools do not have the guaranteed tax funding that public schools do. As a result,
19 unlike public schools, many private schools have already been forced to close due to the crisis.
20 The Cato Institute has been tracking private school closures since March and has so far
21 documented 107 permanent school closures as a result of the crisis, schools that collectively served
22 over 16,000 students. See COVID-19 Permanent Private School Closures, Cato Institute,
23 https://www.cato.org/covid-19-permanent-private-closures (last checked August 4, 2020).
24 Moreover, if the students that attended these schools transfer to public schools, it could
25 impose significant additional costs on public school systems and state and local governments,
26 further undercutting Plaintiff’s argument that providing equitable relief to private schools harms
27 the public school system. Cato estimates, for example, that if all of the over 16,000 students served
3
https://www.edweek.org/ew/articles/2020/06/09/catholic-school-closures-rise-in-wake-of.html
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
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Page 11 Phone: (360) 956-3482
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1 by the already closed private schools switched to public school, it would cost taxpayers roughly
2 $252 million to educate those additional children. And that’s just counting the schools that have
3 already closed. EdChoice estimated that if just 10% of private-school students were to migrate
4 back into the public system, state and local budgets throughout the U.S. would need to come up
5 with an additional $6.7 billion. See Robert C. Enlow, The K-12 Financial Cliff: What States Could
6 Face if Students Switch Schooling Sectors, EdChoice (Apr. 20, 2020).4
7 Plaintiff’s suggestion that private schools are less in need of relief because they have access
8 to other funding sources under the CARES Act (namely the Paycheck Protection Program), Dkt.
9 8:16, is a red herring. There are also other CARES Act funds that public schools have access to
10 that private schools do not. The “Coronavirus Relief Fund,” for example (CARES Act § 5001),
11 appropriates $150 billion for States and local governments and is available to cover “expenses to
12 facilitate distance learning, including technological improvements, in connection with school
13 closings to enable compliance with COVID-19 precautions.” See Coronavirus Relief Fund:
14 Guidance for State, Territorial, Local, and Tribal Governments, United States Department of the
15 Treasury (Updated June 30, 2020).5 And, of course, as already noted, public schools have access
16 to funding through taxes, unlike private schools.
17 To give just one example, Washington public schools received annual funding of over $17
18 billion in the 2019-20 school year. See K-12 School District Finance Date, Washington State.6
19 And Washington public schools now receive more funding on a per pupil basis than most private
20 schools. See Liv Finne, School funding in the 2019 legislative session; Washington state public
21 schools now receive more money than most private schools, Washington Policy Center (July
22 2019).7 If all districts in Washington were to use the enrollment-based option, private schools in
23 Washington would receive roughly $5 million more in CARES Act funding than if Plaintiff’s
24 lawsuit prevails. Dkt. 10:11. The $5 million difference, while a mere fraction of funding for
4
https://www.edchoice.org/engage/the-k-12-financial-cliff-what-states-could-face-if-students-switch-
schooling-sectors/
5
https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Guidance-for-State-Territorial-
Local-and-Tribal-Governments.pdf
6
http://fiscal.wa.gov/WSFCurrent.xlsm (linked to from http://fiscal.wa.gov/k12.aspx)
7
https://www.washingtonpolicy.org/library/doclib/Finne-School-funding-in-the-2019-legislative-session-
Washington-state-public-schools-now-receive-more-money-than-most-private-schools.pdf
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 12 Phone: (360) 956-3482
Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 17 of 21
1 Washington’s public schools, could be significant in the ability of private schools in Washington
2 to maintain viability and to provide the safe learning environment expected. So too for other States.
3 Plaintiff also argues that the public interest or balancing portion of the preliminary
4 injunction test cuts “strongly” in favor of an injunction, Dkt. 8:23—as though private schools do
5 not serve the same societal interest in educating the next generation. Plaintiff may believe that
6 public schools are the best model for education and that private schools are a less desirable
7 education system, but many parents, teachers, researchers, policy-makers, and, yes, legislators,
8 disagree. And the legislative decision is obviously what matters. Congress has already weighed
9 the competing claims of public and private schools and decided that funds for relief to schools
10 impacted by COVID-19 should be distributed “equitably” between public and private schools. The
11 Department’s rule does that, whereas Plaintiff seeks an inequitable distribution that would favor
12 public schools to the detriment of students in private schools. The Court should reject Plaintiff’s
13 flawed reading and deny their injunction motion.
14 III. Private Schools Are an Integral Part of Education Across the Country
15 “Private education has played and is playing a significant and valuable role in raising
16 national levels of knowledge, competence, and experience.” Bd. of Educ. v. Allen, 392 U.S. 236,
17 247 (1968). Roughly 5.7 million students, 10% of all U.S. students, attend a private school in the
18 United States. See Private School Statistics at a Glance, CAPE, https://www.capenet.org/
19 facts.html (last checked July 23, 2020). The nearly 35,000 private schools provide safe, high
20 quality educational options for families who are seeking a different educational environment for
21 their child. While private schools are sometimes unfairly stereotyped as havens for the wealthy, in
22 reality, many private schools serve economically disadvantaged areas and families of modest
23 means. According to the National Center for Education Statistics, over 20% of private school
24 students nationally come from poor and near-poor families. See Fast Facts: Public and Private
25 School Comparison, National Center for Education Statistics.8 For generations, private schools
26 have provided communities with options for their children’s education, emphasizing not only
27 academic success, but overall character and spiritual development. There has been a resurgence of
8
https://nces.ed.gov/fastfacts/display.asp?id=55
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 13 Phone: (360) 956-3482
Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 18 of 21
1 private school education over the last thirty years as States pass tax credits, tax deductions,
2 scholarships, and voucher programs that help low-income families access private schools.
3 Private schools are more than just a place where students go to learn. They create a
4 community that serves the entire family and, in most cases, the surrounding neighborhood. The
5 COVID-19 pandemic emphasized these schools’ roles in the community. In Milwaukee,
6 Wisconsin, for example, a local private school provided thousands of free meals each week to any
7 child who needed access to food, regardless of what school they attended. See Libby Sobic &
8 Jessica Holmberg, In This Together: How private and public charter schools are serving their
9 families and communities during the COVID-19 crisis, WILL (Mar 27, 2020).9
10 One of the primary advantages of private schools is that parents can choose the educational
11 environment that is best suited to their child’s unique needs. Families from all income brackets
12 seek out private schools for this very reason. And academic research has proven that for many
13 families, the private school option leads to invaluable long-term benefits for their children. In
14 Wisconsin, academic studies have found that private schools are safer on average than traditional
15 public schools. See School Safety Report, School Choice Wisconsin (2014).10 Students attending
16 these schools receive an education that leads to increased rates of high-school graduation, college
17 acceptance, and college graduation. J. Cowen, et al., Student Attainment and the Milwaukee
18 Parental Choice Program: Final Follow-up Analysis, School Choice Demonstration Project (Feb.
19 2012)11; P. Wolf, Do Voucher Students Attain Higher Levels of Education? Extended Evidence
20 from the Milwaukee Parental Choice Program, Urban Institute (Feb. 2018).12 Similar randomized
21 controlled trial evaluations have been done across the country, and all but two found significant
22 positive or no differences on student academic achievement, compared to their public school peers.
23 See A. Egalite & P. Wolf, A Review of Empirical Research on School Choice, 91 Peabody Journal
9
https://medium.com/@willlawandliberty/in-this-together-5362a18ef01
10
http://schoolchoicewi.org/wp-content/uploads/2017/02/SCW-SafetyReport-2014-update.pdf
11
http://www.uaedreform.org/downloads/2012/02/report-30-student-attainment-and-the-milwaukee-
parental-choice-program-final-follow-up-analysis.pdf
12
https://www.urban.org/sites/default/files/publication/96721/do_voucher_students_attain_
higher_levels_of_education.pdf
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 14 Phone: (360) 956-3482
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1 of Education 441 (2016).13 Studies have also found that school choice helps build student
2 character, reducing involvement in criminal activity and incidences of paternity suits. See C.
3 DeAngelis & P. Wolf, Private School Choice and Character: More Evidence from Milwaukee,
4 EDRE Working Paper 2019-03 (2019), available on SSRN.14 All of these benefits come at a lower
5 cost to taxpayers per student. See P. Wolf & M. McShane, Is the Juice Worth the Squeeze? A
6 Benefit/Cost Analysis of the District of Columbia Opportunity Scholarship Program, 8 Education
7 Finance and Policy 74 (2013).15
8 Congress historically has, and continues to, recognize the importance of private schools as
9 a vital part of the education sector. The pandemic significantly impacted all K-12 schools and the
10 CARES Act was intended to help schools, both public and private, continue to serve students. The
11 Department’s rule is a continuation of that intent and commitment to ensuring that all families can
12 access the school of their choice, and is a correct and appropriate implementation of the underlying
13 requirements of the CARES Act.
14 CONCLUSION
15 For these reasons, Amici urge this Court to reject Plaintiff’s invitation to enjoin the
16 Department’s sensible and equitable rule and instead impose an inequitable distribution that would
17 favor public schools to the detriment of private schools and their students.
18 Dated: August 6, 2020
13
https://www.tandfonline.com/doi/citedby/10.1080/0161956X.2016.1207436
14
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3335162
15
https://www.mitpressjournals.org/doi/10.1162/EDFP_a_00083
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Page 15 Phone: (360) 956-3482
Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 20 of 21
1 Respectfully Submitted,
2 /s/ Eric R. Stahlfeld
ERIC R. STAHLFELD (Wash. Bar #22002)
3 FREEDOM FOUNDATION
P.O. Box 552
4 Olympia, WA 98507
Phone: (360) 956-3482
5 Fax: (360) 352-1874
EStahlfeld@freedomfoundation.com
6
/S/ Luke N. Berg
7 WISCONSIN INSTITUTE FOR LAW & LIBERTY
RICK ESENBERG (Wis. Bar #1005622)
8 *
LUKE N. BERG (Wis. Bar #1095644)
ELISABETH SOBIC (Wis. Bar #1103379)
9 330 E. Kilbourn Ave., Suite 725
10 Milwaukee, WI 53202
Telephone: (414) 727-9455
11 luke@will-law.org
12 Attorneys for Council for American Private Education, National Catholic
Educational Association, Agudath Israel of America, Council of Islamic
13 Schools in North America, Association of Christian Schools International,
Association of Christian Teachers and Schools, WELS Commission on
14 Lutheran Schools, Washington Catholic Conference, Washington
15 Federation of Independent Schools, American Federation for Children,
Catholic Education Partners, Washington Policy Center, California
16 Catholic Conference, Colorado Catholic Conference, Colorado
Association of Private Schools, Indiana Non-Public Education
17 Association, Michigan Catholic Conference, Michigan Association of
18 Non-Public Schools, Midsouth Association of Independent Schools,
Catholic Conference of Oklahoma, Pennsylvania Affiliate of the Council
19 for American Private Education, Texas Private Schools Association,
Wisconsin Council of Religious & Independent Schools, School Choice
20 Wisconsin Action, California Policy Center, James Madison Institute,
Great Lakes Education Foundation, Mississippi Center for Public Policy,
21
Nevada Policy Research Institute, Rio Grande Foundation, Roughrider
22 Policy Center, Commonwealth Foundation, School Choice Wisconsin
23
Additional Signatures on the Following Page
24
25
26
*
Pro Hac Vice
Application pending.
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Phone: (360) 956-3482
Case 2:20-cv-01119-BJR Document 46 Filed 08/06/20 Page 21 of 21
1 /s/ Leslie Davis Hiner /s/ Kim Wadas Vercauteren
LESLIE DAVIS HINER* (Ind. Bar No. 8465-49) KIM WADAS VERCAUTEREN*
2 EDCHOICE, INC. (Wis. Bar No. 1045323)
3 111 Monument Circle Suite 2650 WISCONSIN CATHOLIC CONFERENCE
Indianapolis, IN 46204 131 W. Wilson Street, Suite 1105
4 (317) 681-0745 Madison, WI 53703
leslie@edchoice.org (608) 257-0004
5 Attorneys for EdChoice kim@wisconsincatholic.org
6 Attorneys for Wisconsin Catholic Conference
/s/ Patrick J. Wright
7 PATRICK J. WRIGHT* (MI Bar No. P54052) /s/ Daniel R. Suhr
MACKINAC CENTER FOR PUBLIC POLICY DANIEL R. SUHR* (Wis. Bar No. 1056658)
8 140 West Main Street LIBERTY JUSTICE CENTER
9 Midland, MI 48640 190 S. LaSalle St. Suite 1500
(989) 631-0900 Chicago, IL 60603
10 wright@mackinac.org (312) 263-7668
Attorneys for Mackinac Center for Public dsuhr@libertyjusticecenter.org
11 Policy Attorneys for Liberty Justice Center
12
/s/ Timothy Sandefur /s/ Jay R. Carson
13 TIMOTHY SANDEFUR* (Cal. Bar No. 224436) JAY R. CARSON* (Ohio Bar No. 0068526)
SCHARF-NORTON CENTER FOR THE BUCKEYE INSTITUTE
14 CONSTITUTIONAL LITIGATION AT THE 88 East Broad Street, Suite 1300
GOLDWATER INSTITUTE Columbus, Ohio 43215
15
500 E. Coronado Rd. (614) 224-4422
16 Phoenix, AZ 85004 J.Carson@BuckeyeInstitute.org
(602) 462-5000 Attorneys for the Buckeye Institute
17 litigation@goldwaterinstitute.org
Attorneys for the Goldwater Institute
18
19
20
21
22
23
24
25
26
*
Not formally appearing. Above-signed counsel is authorized to appear as counsel of record for
noticing/ECF purposes.
Amicus Brief of Private School Associations and Freedom Foundation
Advocacy Groups in Support of Defendants P.O. Box 552
Case No. 2:20-cv-1119-BJR Olympia, WA, 98507
Phone: (360) 956-3482
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