Memorandum in Opposition, NAACP et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 46 (August 24, 2020)

Summary

Defendants' Opposition to Plaintiffs' Request for Partial Summary Judgment, filed 08/24/20 as Document 46 in NAACP et al. v. DeVos, No. 1:20-cv-1996 (DLF), in the District of Columbia. It states that the Department of Education's interpretation of the CARES Act, which ensures an equitable distribution of emergency funding between public and private schools, is reasonable and entitled to deference. The background states the CARES Act appropriates more than $16 billion into two relief funds, and the case arises from an interim final rule issued by the Department. It concludes that Plaintiffs' motion for partial summary judgment should be denied; the signature block shows counsel in the Civil Division.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

      Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 1 of 15




                  IN THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA


NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE (NAACP), et al.,

               Plaintiffs,

       v.                              No. 1:20-cv-1996 (DLF)

ELISABETH DEVOS, et al.,

               Defendants.



    DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ REQUEST FOR PARTIAL
                      SUMMARY JUDGMENT
          Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 2 of 15




                                       INTRODUCTION
         In a time of global pandemic and economic turmoil, Congress saw fit to provide emergency
funding for services to support schools throughout the nation. In doing so, Congress mandated
that these services be provided equitably—for the benefit of both public and non-public school
students. The Department of Education’s interpretation of the Coronavirus Aid, Relief, and
Economic Security Act, which ensures an equitable distribution between public and private
schools, is a reasonable one entitled to deference. Because Plaintiffs fail to demonstrate that the
agency acted contrary to Congress’s mandate in issuing its Interim Final Rule, their motion 1 should
be denied.
                                        BACKGROUND

    I.   STATUTORY BACKGROUND

         This case arises from an interim final rule issued by the Department of Education to
implement the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No.
116-136, 134 Stat. 281 (2020). The CARES Act—which Congress enacted to help many sectors
of society respond to the coronavirus pandemic—appropriates more than $16 billion into two relief
funds, and charges the Department of Education with allocating those funds to the Nation’s public
schools. CARES Act §§ 18002–03. Public school districts that receive CARES Act funds must
then “provide equitable services” to private-school students “in the same manner as provided
under” a different statute: Section 1117 of the Elementary and Secondary Education Act of 1965
(ESEA), Pub. L. No. 89-10 (1965) (codified at 20 U.S.C. § 6320).                      CARES Act
§ 18005. Plaintiffs argue that, because the rule allegedly apportions CARES Act funds for
equitable services to private school students in a manner inconsistent with section 1117 of the
ESEA, the rule is unlawful on a variety of theories.



1
  This Court converted Plaintiffs’ Motion for Preliminary Injunction, ECF No. 36, into a motion
for partial summary judgment. See ECF No. 41 (setting briefing schedule after telephonic hearing
regarding scheduling). Defendants therefore address only the pure questions of law that are
properly presented at this early stage of litigation, before the agency has had an opportunity to
produce the administrative record.
                                                 1
         Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 3 of 15




    A. The Elementary and Secondary Education Act of 1965

        The ESEA is a comprehensive statutory scheme that supports students in the Nation’s
elementary and secondary schools. Title I-A of the ESEA is designed to “improv[e] the academic
achievement of” students who are failing (or are at risk of failing) to meet academic standards. 20
U.S.C. §§ 6314(a), 6315(c). Title I-A accomplishes this by providing federal funding through
States to local school districts (referred to as local educational agencies, or LEAs) based primarily
on the number of economically disadvantaged children who reside in each district. Id. §§ 6332–
37; see id. § 6333(c) (establishing the parameters for allocating Title I-A funds among States and
their constituent public school districts).
        The goal of Title I is to provide “all children significant opportunity to receive a fair,
equitable, and high-quality education,” regardless of whether those children attend a public or
private school. See 20 U.S.C. §§ 6301–02. To that end, section 1117 of the ESEA (codified at 20
U.S.C. § 6320) requires local school districts to supply academic services—such as special-
education services, counseling, mentoring, and tutoring—to certain children enrolled in private
schools. Id. § 6320(a)(1)(A). Such services must “be equitable in comparison to services and
other benefits for public school children” who benefit from Title I-A funds. Id. § 6320(a)(3)(A).
Accordingly, section 1117 instructs local school districts to set aside funds for private school
students “equal to the proportion of funds allocated to participating [Title I-A] school attendance
areas based on the number of children from low-income families who attend private schools” and
reside in those attendance areas. Id. § 6320(a)(4)(A)(i). These funds are then used to provide
services to private-school students who are eligible to receive them. A private-school student’s
eligibility for these services does not turn on his or her socioeconomic standing, despite the fact
that the amount of money a school district must reserve to pay for such services is calculated by
reference to the number of low-income private-school students who live in participating Title I-A
attendance areas within the district’s borders. Instead, a student’s eligibility depends on the extent
to which he or she is “failing, or . . . at risk of failing, to meet” applicable academic standards along
with residence in a participating Title I-A attendance area. Id. § 6315(c)(1)(B).
        Section 1117 separately requires local school districts to “timely and meaningful[ly]

                                                   2
         Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 4 of 15




consult[] with appropriate private school officials.” 20 U.S.C. § 6320(a)(1)(A). The statute sets
forth a detailed consultation procedure that specifies the issues that must be discussed, id.
§ 6320(b)(1)(A)-(L), (4); the way disagreements must be raised, id. § 6320(b)(2), (6); and the
timeframe in which consultation must occur, id. § 6320(b)(3). The statute also requires that “[t]he
control of funds provided under” Title I-A of the ESEA “shall be in a public agency.” Id.
§ 6320(d)(1).

   B. The CARES Act

       The CARES Act appropriated over $16 billion in financial assistance that can be used to
support elementary and secondary schools, and instructed the Secretary of Education to administer

and allocate that money through two separate funds.

       The Governor’s Emergency Education Relief (GEER) Fund provides emergency grants to

state governors. CARES Act § 18002. Governors may use GEER funds to “support . . . any . . .

education related entity within the State that the Governor deems essential for carrying out

emergency educational services to students.” Id. § 18002(c). Governors may also use GEER

funds to give “emergency support . . . grants to local education agencies that the State educational

agency deems have been most significantly impacted by coronavirus.” Id. The Department of

Education must allocate GEER funds among States using a specified statutory formula. Id.

§ 18002(b) (directing the Secretary to allocate funds based 60 percent on a State’s “relative
population of individuals aged 5 through 24,” and 40 percent on the amount of Title I-A funds that

State would receive under the ESEA, 20 U.S.C. § 6333(c)).
       The Elementary and Secondary School Emergency Relief (ESSER) Fund provides
emergency grants for elementary and secondary schools. CARES Act § 18003. The Department
of Education must allocate ESSER funds among States “in the same proportion as each State
received under [Title I-A] of the ESEA . . . in the most recent fiscal year.” Id. § 18003(b).
Similarly, States must allocate at least 90 percent of their ESSER funds to their school districts “in
proportion to the amount of funds such local educational agencies and charter schools that are local
educational agencies received under [Title I-A] of the ESEA . . . in the most recent fiscal year.”

                                                  3
         Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 5 of 15




Id. § 18003(c). A school district may use ESSER funds to pay for services that fall within twelve
broad categories of expenditures, including emergency preparedness; cleaning supplies; distance-
learning technology; meal services; mental health; “[a]ny activity authorized by the ESEA” or
several other education-related statutes; and any “[o]ther activities that are necessary to maintain
the operation of and continuity of services in [LEAs] and continuing to employ existing staff.” Id.
§ 18003(d).
       The CARES Act directs GEER and ESSER funds to public school districts, but because
the coronavirus pandemic has affected both public and private institutions, section 18005 of the
CARES Act instructs school districts that receive GEER or ESSER funds to “assist[] . . . non-
public schools” using the CARES Act funds they have been allocated. CARES Act § 18005
(casing fixed). Specifically, local districts “shall provide equitable services in the same manner as
provided under section 1117 [20 U.S.C. § 6320] of the ESEA of 1965 to students and teachers in
non-public schools.” Id. § 18005(a) (referencing 20 U.S.C. § 6320). Section 18005 further
requires that these equitable services must be “determined in consultation with representatives of
non-public schools.” Id. Finally, section 18005 requires that “[t]he control of funds for” equitable
services provided to private school students “shall be in a public agency.” Id. § 18005(b).

 II.   REGULATORY BACKGROUND

       In April 2020, the Department issued guidance to help public school districts implement
their section 18005 obligation to provide equitable services to students and teachers at private
schools. U.S. Dep’t of Educ., Providing Equitable Services to Students and Teachers in Non-
Public Schools Under the CARES Act Programs (Apr. 30, 2020) (hereinafter “Guidance
Document”), https://oese.ed.gov/files/2020/06/Providing-Equitable-Services-under-the-CARES-
Act-Programs-Update-6-25-2020.pdf. The Department’s guidance noted that the CARES Act—
unlike Title I-A of the ESEA—places no restrictions on the eligibility of private-school students
and teachers to receive “equitable services” under section 18005. The guidance thus advised that
GEER and ESSER funds may be used to “serve all non-public school students and teachers without
regard to family income, residency, or eligibility based on low achievement.” Id. at 3. The


                                                 4
           Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 6 of 15




guidance also noted that the CARES Act permits public school districts that receive GEER or
ESSER funds to spend that money to help all public schools within the district, and not merely
schools with a sufficient number of low-income students to qualify for funding under Title I-A of
the ESEA. The guidance thus advised that, when calculating the share of “equitable services” that
public school districts must give private school students under section 18005, public school
districts must account for the private schools’ total enrollment—not merely for the number of low-
income students who reside in a Title I-A school attendance area. Id. at 6–7.
       In July 2020, the Department formalized its guidance in an interim final rule. CARES Act
Programs; Equitable Services to Students and Teachers in Non-public Schools, 85 Fed. Reg.
39,479. The Department issued the rule without prior notice and comment because of the
significant educational disruptions caused by the coronavirus pandemic and the need for certainty
among recipients of CARES Act funding. Specifically, section 18005 of the CARES Act forbids
public school districts that receive GEER or ESSER funds from using those funds without
consulting with the private schools within their boundaries, which in turn requires districts to
“determin[e] the amount of funds available for [equitable] services.”         Id. at 39,483.    The
Department provided a 30-day comment period, however, and committed to considering the views
of interested parties in determining whether to undertake additional rulemaking. Id. at 39,484.
       The Department explained that the rule was necessary to “resolve[] a critical ambiguity . . .
with respect to the equitable services obligation owed by LEAs that receive CARES Act funds to
students and teachers in non-public schools.” 85 Fed. Reg. at 39,479. The Department noted that,
apart from requiring equitable services to be provided “in the same manner as provided under
section 1117” of the ESEA, section 18005 did not specify how to ensure that the services provided
are   in   fact   “equitable.”   Id.   at   39,479–81.   The   Department    further   noted    that
section 1117 of the ESEA is inconsistent with the CARES Act in several crucial respects. For
example, section 1117 forbids private-school students from benefiting from equitable services
provided under the ESEA unless they are failing (or in danger of failing) to satisfy certain
curricular standards. 20 U.S.C. § 6320. Section 1117 also requires private school students to
reside in a Title I-A school attendance area to receive services. Id. § 6320(a)(4)(A). But both

                                                  5
         Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 7 of 15




GEER and ESSER funds may plainly be used for the benefit of all students, not merely those
students in academic jeopardy or who reside in a particular part of a district. The Department
therefore concluded that rulemaking was necessary to resolve these ambiguities. See 85 Fed. Reg.
at 39,479 (recognizing that the Department was obliged to “construe the CARES Act based on
plain meaning, context, and coherence within the overall statutory structure . . . and fit, if possible,
all its parts into a harmonious whole”).
       The Department then explained that a “mechanistic application” of section 1117 to
section 18005’s equitable-services requirement would “disadvantage” private-school students and
contravene congressional intent. 85 Fed. Reg. at 39,479. The Department noted that, if section
1117’s proportional-allocation provisions were applied to CARES Act funds, public school
districts would only be required to reserve funds for private schools commensurate to the number
of low-income students at each private school who reside in a Title I-A school area—while
remaining free to spend their portion of the funds on projects benefiting all public-school students.
Id. at 39,482. As the Department explained, “the CARES Act does not limit services based on
residence and poverty,” so “it stands to reason that an LEA should not use residence and poverty
to determine the proportional share of available funds for equitable services to non-public school
students.” Id. at 39,482–83.
       The rule’s interpretation of section 18005 differs from the Department’s prior guidance in
that it accords public school districts more choice about how to satisfy the equitable-services
requirement. The Department sought to broaden the number of options available to such districts
in response to criticism from certain States that its guidance was too inflexible. 85 Fed. Reg. at
39,480. Under the rule, school districts have two pathways to compliance. First, a school district
can commit to using its CARES Act funds exclusively on schools participating in Title I-A of the
ESEA—that is, on schools with high instances of poverty. Id. at 39,482. If so, that district need
only reserve funds for equitable services as specified by section 1117’s proportional-allocation
provisions—that is, based on the number of low-income students enrolled at private schools who
reside in a Title I-A area. 34 C.F.R. § 76.665(c)(1)(i). Second, a school district may instead
commit to using CARES Act funds to benefit all schools, not merely schools with high instances

                                                   6
         Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 8 of 15




of poverty. Id. at 39,482. To maintain equity, that district must then reserve funds for equitable
services using the same measure—that is, the number of all students enrolled at participating
private schools. 34 C.F.R. § 76.665(c)(1)(ii).
       The Department determined that its interpretation was the appropriate way to ensure that
“[e]ducational services and other benefits for students and teachers in non-public elementary and
secondary schools [] be equitable in comparison to services and other benefits for public school
students and teachers participating in CARES Act programs.” 34 C.F.R. § 76.665(d). 2
                                           ARGUMENT
       Under Rule 56, a party is entitled to summary judgment if “there is no genuine dispute as
to any material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Where, as here, “a party seeks review of agency action under the APA, the district judge
sits as an appellate tribunal[.]” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir.
2001). In such cases, the court must limit its review to the administrative record” and the facts
and reasons contained therein to determine whether the agency’s action was “consistent with the
relevant APA standard of review.” Policy & Research, LLC v. United States Dep’t of Health &
Human Servs., 313 F. Supp. 3d 62, 74 (D.D.C. 2018) (quoting Ho–Chunk, Inc. v. Sessions, 253 F.
Supp. 3d 303, 307 (D.D.C. 2017)); see also Caiola v. Carroll, 851 F.2d 395, 398 (D.C. Cir. 1988).
       Under the APA, courts must uphold agency action unless it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law[,]” 5 U.S.C. § 706(2)(A), or is “in
excess of statutory jurisdiction, authority, or limitations,” id. § 706(2)(C). The court’s function is
simply “to apply the appropriate APA standard of review to the agency decision based on the
record the agency presents to the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S.
729, 743–44 (1985) (citation omitted). Here, because the administrative record has not yet been

2
  On May 15, 2020, the House of Representatives passed legislation, referred to as the “HEROES
Act,” that would amend the CARES Act to require that “equitable services shall be provided by
the local educational agency in which the students reside, and the amount of funds available for
such equitable services shall be based on the number of nonpublic school students who were
identified in the calculation under section 1117(c)(1) of the ESEA for purposes of Title I-A during
the 2019–2020 school year relative to the sum of such students in public schools” that same year.
See HEROES Act, H.R. 6800, 116th Cong. § 10604 (2020).


                                                  7
          Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 9 of 15




produced by the agency, only the threshold legal question of the agency’s authority to issue the
rule is properly before the Court.

  PLAINTIFFS HAVE NOT SHOWN THAT THE AGENCY ACTED WITHOUT LEGAL AUTHORITY
         A. Plaintiffs’ principal arguments resolve to the same contention: That the Department’s
rule should be set aside because it cannot be reconciled with section 18005 of the CARES Act,
and because the CARES Act did not give the Department authority to interpret section 18005.
See ECF No. 36-1, Mot. for Prelim. Inj. or Summ. J., “Mot.,” at 14–21 (arguing rule is ultra vires);
id. at 22–23 (contending rule is inconsistent with the Spending Clause); id. at 23–25 (challenging
rule under APA as exceeding statutory authority). No matter how framed, these arguments lack
merit.
         Section 18005 of the CARES Act requires public school districts to provide equitable
services to private school students “in the same manner” as that specified in section 1117 of the
ESEA. CARES Act, § 18005. Section 1117 applies to certain equitable services provided within
the ambit of Title I-A of the ESEA, and includes a proportional-apportionment formula based on
the number of low-income students who reside in a Title I-A public school attendance area and
are enrolled in a private school. 20 U.S.C. § 6320(a)(4)(A). But as the Department explained,
section 1117—and the ESEA more broadly—cannot be imported into the CARES Act scheme in
“mechanistic” fashion. 85 Fed. Reg. 39,479.
         Two examples illustrate the point. First, section 1117 prohibits private-school students
from receiving “equitable services” using Title I-A funds unless they are at risk of failing out of
school. 20 U.S.C. § 6320(a)(1)(A) (restricting eligibility for services to “eligible children”); id.
§ 6315(c)(1)(B) (defining “eligible children” as “children identified by the school as failing, or
most at risk of failing, to meet . . . State academic standards”). But the plain text of the CARES
Act makes clear that GEER and ESSER funds may be used to pay for a broad range of services
that benefit all students—such as disaster-preparedness planning, sanitation supplies, distance-
learning technology, and pandemic-response plans developed in coordination with authorities at
every level of government. CARES Act §§ 18002(c), 18003(d); see 85 Fed. Reg. at 39,480.
Incorporating section 1117’s “eligible children” restriction into the CARES Act would contravene

                                                 8
        Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 10 of 15




those other CARES Act provisions by forcing private schools to restrict these services to the
academically challenged—for instance, by implementing a pandemic-response plan that applies
only to that subset of students, or by purchasing sanitation supplies that can be used only to clean
certain desks.
       Second, two of section 18005’s provisions are substantively identical to two provisions in
section 1117. See 85 Fed. Reg. at 39,481. Section 18005(a) requires public school districts to
consult with private schools in deciding how equitable services should be provided, just like
section 1117(b). Compare CARES Act § 18005(a) with 20 U.S.C. § 6320(b). And section
18005(b) requires public schools to maintain control over all CARES Act funds, using language
nearly identical to that in section 1117(d). Compare CARES Act § 18005(b) with 20 U.S.C.
§ 6320(d). If the CARES Act’s use of the phrase “in the same manner” incorporated every jot
and tittle of section 1117, both the consultation and the public-control provisions of section 18005
would be superfluous.
       For these reasons, the Department concluded, the phrase “in the same manner” must mean
that section 18005 incorporates something less than every provision of section 1117.
       B.        In light of the disparate purposes of the CARES Act (to provide emergency relief
to all students and schools) and Title I-A (to provide services for low-achieving students), and the
text of the statute, the Department reasonably concluded that “in the same manner” does not
incorporate section 1117’s proportional-apportionment provisions.             Those provisions—
developed in the wholly separate context of equitable services provided under Title I-A—require
public school districts to reserve funds in proportion to the number of low-income students
enrolled in private schools who reside in Title I attendance areas. 20 U.S.C. § 6320(a)(4)(A). As
noted, however, Congress designed both the GEER and the ESSER programs to permit
expenditures across a wide swath of areas that clearly benefit all students. See CARES Act
§§ 18002(c), 18003(d). Given this tension, the Department properly declined to interpret the
phrase “in the same manner” to import section 1117’s proportional-apportionment provisions into
the CARES Act. See King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (“[O]ftentimes the meaning—
or ambiguity—of certain words or phrases may only become evident when placed in context.”)


                                                 9
        Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 11 of 15




(citation and internal quotation marks omitted)); Graham Cty. Soil & Water Conservation Dist.
v. United States ex rel. Wilson, 559 U.S. 280, 290 (2010) (holding that courts “construe statutes,
not isolated provisions”). Indeed, the word “manner” suggests that section 18005 refers to the
way in which services are provided under section 1117, and not how the money to pay for those
services is apportioned. See American Heritage Dict. 763 (2d College ed. 1985) (defining
“manner” as “[a] way of doing something or the way in which a thing is done or happens”). 3
       In any event, “[t]he power of an administrative agency to administer a congressionally
created . . . program necessarily requires the formulation of policy and the making of rules to fill
any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974)
(emphasis added). The phrase “in the same manner” is at a minimum ambiguous with regard to
the question of whether Congress intended section 1117’s proportional-apportionment provisions
to apply to “equitable services” provided with CARES Act funds. To the extent the text of
section 18005 does not supply a clear answer to that question, the Department may use
rulemaking to “develop a harmonious construction faithful” to Congress’s directive that billions
of dollars in emergency appropriations be used equitably. 85 Fed. Reg. at 39,479. Indeed, the
Secretary of Education has broad authority to “make, promulgate, [and] issue . . . rules and
regulations governing the manner of operation of, and governing the applicable programs
administered by, the Department.” 20 U.S.C. § 1221e-3; accord id. § 3474 (“The Secretary is
authorized to prescribe such rules and regulations as the Secretary determines necessary or
appropriate to administer and manage the functions of the Secretary or the Department.”). 4 And
it is well settled that, “whenever decision as to the meaning or reach of a statute has involved
reconciling conflicting policies, and a full understanding of the force of the statutory policy in the

3
  Furthermore, where Congress intended to prescribe the apportionment of funds in the CARES
Act, it did so expressly. See, e.g., CARES Act § 18002(b) (“The amount of each grant under
subsection (a) shall be allocated by the Secretary to each State as follows . . . .”).
4
  In Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash Aug. 21, 2020) (order granting
preliminary injunction), the court found that there is no delegation of rulemaking authority to the
Department with regard to section 18005 of the CARES Act. However, 20 U.S.C. §§ 1221e–3
and 3474 can abrogate the need for Congress to speak to the Department’s rulemaking authority
each time it legislates. Congress routinely passes laws that the Department implements through
rulemaking without each law explicitly referencing its authority.
                                                  10
        Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 12 of 15




given situation has depended upon more than ordinary knowledge respecting the matter subjected
to agency regulations,” an agency’s resolution of a statutory ambiguity warrants deference.
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (citation
omitted).
       Deference is appropriate where, as here, the agency’s interpretation of an ambiguous
statute is reasonable. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (“we must
uphold the NIH’s interpretation of Dickey-Wicker if it is but ‘reasonable’” (citing Chevron, 467
U.S. at 844)); Milk Train, Inc. v. Veneman, 310 F.3d 747, 752 (D.C. Cir. 2002) (deference owed
to agency interpretation of the 2000 Appropriations Act). The Department of Education resolved
the tension between the CARES Act and the provisions of section 1117 by reference to Congress’s
command that the services provided to private schools be “equitable.” CARES Act § 18005(a).
The Department determined that it is inequitable to apportion expenditures for private schools on
the basis of low-income students residing in Title I-A school attendance areas when public school
districts may use their share of CARES Act funds to benefit all schools and students. 85 Fed.
Reg. at 39,483. In the Department’s expert judgment, equity in this context instead demands
either that: (1) public school districts that spend CARES Act funds to benefit all schools and
students apportion private-school funds based on total enrollment; or (2) public school districts
that choose to apportion private-school funds based on low-income enrollment then limit their
own spending to low-income schools. Id. at 39,482. Those, of course, are the same two pathways
to section 18005 compliance that the challenged rule sets forth. Id. 5
       Plaintiffs dispute (Mot. 18, 20) that section 18005 is ambiguous. In their view, if Congress
had intended that CARES Act funds be apportioned to private schools based on total enrollment,
Congress would have written section 18005 to cross-reference section 8501 of the ESEA, which


5
  Plaintiffs additionally contend that the rule imposes a “supplement, not supplant” restriction that
“prohibits the LEA from using CARES Act funds to cover expenditures that would normally be
covered by state and local funds.” Mot. 11 (citing 20 U.S.C. § 6321(b)(1)). To the extent this
Court believes that the language in the rule must be read as imposing an improper restriction on
CARES Act funds, the proper course would be to sever the “supplement not supplant” provision
rather than to vacate the rule in its entirety. See MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d
13, 22 (D.C. Cir. 2001).
                                                 11
        Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 13 of 15




is codified at 20 U.S.C. § 7881. That statute governs equitable services rendered under different
ESEA programs, and it is functionally identical to section 1117 in all but one respect: Unlike
section 1117, section 8501 requires public school districts to reserve funds for private schools in
proportion to their total enrollment in the relevant program. Id. § 7881(a)(4)(A). But even if
Congress had enacted this hypothetical version of section 18005, ambiguity would remain. Like
section 1117, section 8501 also includes consultation and public-control provisions
indistinguishable from those present in section 18005. Id. § 7881(c) (consultation); id. § 7881(d)
(public control). Thus, had Congress required CARES Act funds to be apportioned “in the same
manner as that specified in § 8501,” questions would remain about which provisions of section
8501 Congress meant to incorporate—since incorporating all of section 8501’s provisions would
create the very same superfluity whose existence illustrates the ambiguity that the Department
intended the rule to resolve.
       Indeed, if the statute were clear, one would expect that states and localities distributing
CARES Act funds would be in agreement on the proper interpretation of section 18005. Yet
plaintiffs in separate actions challenging the rule have advanced diverging interpretations of the
statute. For example, in an action pending in the Northern District of California, Michigan and
other states argue that section 18005 incorporates section 1117 in its entirety—including “Section
1117’s eligibility requirements providing that only at-risk private-school students are entitled to
services.” Plts. Mot. for Prelim. Inj., Mich. v. DeVos, No. 3:20-cv-04478-JD, ECF 34 at 7 (N.D.
Cal.) (citing 20 U.S.C. § 6320(a)).      By contrast, in the Western District of Washington,
Washington State argues that “[b]ecause the CARES Act refers to the methodology and
procedures of Section 1117, the non-methodological and non-procedural aspects of Section 1117
are not necessarily important here. The formula is what matters.” Reply in Support of Mot. for
Prelim. Inj., Wash. v. DeVos, No. 2:20-cv-01119-BJR, ECF 51 at 3 (W.D. Wash.). That plaintiffs
cannot agree on how to read section 18005 further confirms the provision’s ambiguity.
       Plaintiffs next assert (Mot. 20–21) that the agency’s decision must be set aside because it
“conflicts with the Department’s own prior guidance concerning section 1117 of the ESEA” and
thus reverses prior guidance without adequate explanation. But the agency has not reversed


                                                12
        Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 14 of 15




course or rescinded prior policy. The Department’s general interpretation of section 1117’s
equitable-services mandate, issued in October 2019, remains unaltered—as does its interpretation
of the provision of equitable services using Title I funds. In contrast, the challenged rule relates
to equitable services provided using CARES Act funds—a question the Department could not
possibly have had any position or policy on previously. As the rule explains, the Department’s
interpretation rests on the fact that CARES Act funds can be used more broadly than Title I-A
funds, and that the national emergency prompting its passage “has harmed all our Nation’s
students by disrupting their education.” 85 Fed. Reg. at 39,479. To the extent Plaintiffs assert
that Congress intended CARES Act funds to benefit a district’s most vulnerable students, the
district has the ability under the rule to focus its funds on its high-poverty Title I-A schools.
       Plaintiffs also contend (Mot. 28–29) that the Department lacked good cause to issue the
rule as an interim final rule. This argument is belied by Plaintiffs’ request for the extraordinary
remedy of an injunction (or insistence that this Court should expedite summary judgment
briefing), which they claim is necessitated by the same exigent circumstances underlying the
Department’s decision. Plaintiffs cannot meaningfully dispute that the coronavirus pandemic
constitutes an emergency of unprecedented scale; indeed, the harms to schools engendered by
that emergency form the basis of their motion. And as the Department recognized, “in light of
the current national emergency[’s] . . . disruption on education in both public and non-public
schools, and the immediate need for certainty,” good cause existed to waive ordinary rulemaking
procedures. 85 Fed. Reg. at 39,483. Plaintiffs’ counter to the Department’s rationale—that
“Congress provided LEAs with clear instructions on how to allocate funding for equitable
services,” and thus no rulemaking was necessary (Mot. 30) simply begs the ultimate question in
this case and thus provides no additional reason that notice-and-comment rulemaking should have
been undertaken before issuance of the rule.
       C.      Plaintiffs’ constitutional claims should fail for the same reasons that their APA
claims should be rejected. Each such claim rests on the premise that the Department of Education
lacked statutory authority to issue the challenged rule. But as the Supreme Court has held, “in
cases in which the [government] concedes, either implicitly or explicitly, that the only source of


                                                  13
          Case 1:20-cv-01996-DLF Document 46 Filed 08/24/20 Page 15 of 15




[its] authority is statutory, no constitutional question whatever is raised,” “only issues of statutory
interpretation.” Dalton v. Specter, 511 U.S. 462, 474 n.6 (1994). Plaintiffs’ contrary view would
have the sweeping implication that every challenge to an agency regulation could be re-
characterized as a “constitutional” claim, given the general absence of any background
constitutional authority for agencies to take action in the absence of congressional authorization.
Because the challenged rule is a permissible construction of section 18005, there is no freestanding
constitutional impediment to the Department’s actions.

                                          CONCLUSION

          For the foregoing reasons, Plaintiffs’ motion for partial summary judgment should be
denied.

Dated: August 24, 2020                          Respectfully submitted,

                                               ETHAN P. DAVIS
                                               Acting Assistant Attorney General

                                               DAVID M. MORRELL
                                               Deputy Assistant Attorney General

                                               JENNIFER D. RICKETTS
                                               Director


                                                /s/ William K. Lane III
                                               WILLIAM K. LANE III
                                               (D.C Bar No. 1034955)
                                               Counsel, Civil Division
                                               U.S. Department of Justice
                                               950 Pennsylvania Ave., N.W.
                                               Washington, D.C. 20530
                                               (202) 305-7920
                                               william.lane2@usdoj.gov

                                               Attorneys for Defendants




                                                  14


File and source

File

46-memorandum-in-opposition.pdf

Size

85,603 bytes

SHA-256

aa7e26b63e197986aed9c1dda314c28381dc2aabbbedc5c0ad989c250d31f3bf

Our copy

46-memorandum-in-opposition.pdf

Original

storage.courtlistener.com