Opposition/Response to Motion, State of Michigan et al. v. DeVos, No. 3:20-cv-04478 (N.D. Cal.), Doc. 68 (July 30, 2020)
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Defendants' memorandum in opposition to plaintiffs' motion for a preliminary injunction in Michigan, et al. v. Betsy DeVos and U.S. Department of Education, Case No. 3:20-cv-4478-JD, filed 07/30/20 in the Northern District of California, with a hearing date of September 3, 2020 before Judge James Donato. It states that the case arises from an interim final rule issued by the Department of Education to implement the CARES Act, which appropriates more than $16 billion into two relief funds. Plaintiffs argue that the rule apportions funds to private schools inconsistently with Section 1117 of the Elementary and Secondary Education Act of 1965. The defendants ask that the motion be denied. The signature block names counsel for the defendants.
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“Opposition/Response to Motion, State of Michigan et al. v. DeVos, No. 3:20-cv-04478 (N.D. Cal.), Doc. 68 (July 30, 2020).”
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Case 3:20-cv-04478-JD Document 68 Filed 07/30/20 Page 1 of 20
ETHAN P. DAVIS
1
Acting Assistant Attorney General
2 DAVID MORRELL
Deputy Assistant Attorney General
3 JENNIFER RICKETTS
Director, Federal Programs Branch
4
WILLIAM K. LANE III
5 Counsel
6 Attorneys for Defendants
7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
10 MICHIGAN, et al., Case No. 3:20-cv-4478-JD
11
Plaintiffs, DEFENDANTS’ MEMORANDUM IN
12 v. OPPOSITION TO PLAINTIFFS’
MOTION FOR PRELIMINARY
13 BETSY DEVOS, and INJUNCTION
14 U.S. DEPARTMENT OF EDUCATION,
Date: September 3, 2020
15 Defendants. Time: 10:00 a.m.
Judge: Hon. James Donato
16 Trial Date: None Set
17 Action Filed: July 7, 2020
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DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
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1 TABLE OF CONTENTS
2 BACKGROUND ............................................................................................................................ 1
3 I. STATUTORY BACKGROUND .......................................................................................... 1
4
A. The Elementary and Secondary Education Act of 1965 .................................................. 1
5
B. The CARES Act ............................................................................................................... 2
6
7 II. REGULATORY BACKGROUND ....................................................................................... 4
8 ARGUMENT .................................................................................................................................. 6
9 I. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS ...................................................... 7
10 III. PLAINTIFFS HAVE NOT ESTABLISHED THAT THE PUBLIC INTEREST SUPPORTS AN
11 INJUNCTION .......................................................................................................................... 14
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CONCLUSION ............................................................................................................................. 15
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TABLE OF AUTHORITIES
1
2 Cases
3 Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) ............................................................................................. 13, 14
4
Barber v. Ohana Military Comm., LLC,
5
694 Fed. App’x 583 (9th Cir. 2017) .......................................................................................... 13
6
Boardman v. Pac. Seafood Grp.,
7 822 F.3d 1011 (9th Cir. 2016) ................................................................................................... 13
8 California v. Azar,
911 F.3d 558 (9th Cir. 2018)…………………………………………………………………..14
9
10 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984) ............................................................................................................... 9, 10
11
Dalton v. Specter,
12 511 U.S. 462 (1994) ................................................................................................................... 12
13 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020)…………………………………………………………………………12
14
15 Drakes Bay Oyster Co. v. Jewell,
747 F.3d 1073 (9th Cir. 2014) ................................................................................................... 14
16
FCC v. Fox Television Stations, Inc.,
17 556 U.S. 502 (2009) ................................................................................................................... 11
18
Graham Cty. Soil and& Water Conservation Dist. v. United States ex rel. Wilson,
19 559 U.S. 280 (2010) ..................................................................................................................... 9
20 Karnoski v. Trump,
926 F.3d 1180 (9th Cir. 2019) ..................................................................................................... 7
21
22 King v. Burwell,
135 S. Ct. 2480 (2015) ........................................................................................................... 8, 11
23
Lopez v. Brewer,
24 680 F.3d 1068 (9th Cir. 2012) ..................................................................................................... 6
25
Morton v. Ruiz,
26 415 U.S. 199 (1974) ..................................................................................................................... 9
27 Munaf v. Geren,
553 U.S. 674 (2008) ..................................................................................................................... 7
28
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New York State Dep’t of Soc. Servs. v. Dublino,
1
413 U.S. 405 (1973) ................................................................................................................... 11
2
Rent–A–Ctr., Inc. v. Canyon Tele. & Appliance Rental, Inc.,
3 944 F.2d 597 (9th Cir. 1991) ..................................................................................................... 13
4 Sierra Club v. Trump,
5 379 F. Supp. 3d 883 (N.D. Cal. 2019) ....................................................................................... 13
6 Winter v. Nat. Res. Def. Council,
555 U.S. 7 (2008) ....................................................................................................... 7, 10, 13, 14
7
Statutes
8
9 20 U.S.C. § 1221e-3 ........................................................................................................................ 9
10 20 U.S.C. § 6313(a) ........................................................................................................................ 1
11 20 U.S.C. § 6314(a) ........................................................................................................................ 1
12 20 U.S.C. § 6315(c) .................................................................................................................... 1, 2
13
20 U.S.C. § 6320 .................................................................................................................... passim
14
20 U.S.C. § 6333(c) ........................................................................................................................ 3
15
20 U.S.C. § 7881 ........................................................................................................................... 10
16
20 U.S.C. §§ 6301-02 ..................................................................................................................... 1
17
18 Coronavirus Aid, Relief, and Economic Security Act,
Pub. L. No. 116-136, 134 Stat. 281 (2020) .................................................................................. 1
19
Elementary and Secondary Education Act of 1965,
20 Pub. L. No. 89-10, 79 Stat. 27 (1965) .......................................................................................... 1
21
Regulation
22
34 C.F.R. § 76.665 .......................................................................................................................... 6
23
Legislative Material
24
HEROS Act,
25
H.R. 6800, 116th Cong. § 10604 (2020).............................................................................. 10, 14
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Administrative and Executive Material
1
2 CARES Act Programs; Equitable Servs. to Students & Teachers in Non-Public Schs.,
85 Fed. Reg. 39,479 (July 1, 2020) ..................................................................................... passim
3
Other Authority
4
American Heritage Dict. 763 (2d College ed. 1985) ...................................................................... 9
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1 BACKGROUND
2
3 I. STATUTORY BACKGROUND
4 This case arises from an interim final rule issued by the Department of Education to
5 implement the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No.
6 116-136, 134 Stat. 281 (2020). The CARES Act—which Congress enacted to help many sectors
7 of society respond to the coronavirus pandemic—appropriates more than $16 billion into two
8 relief funds, and charges the Department of Education with allocating those funds to the Nation’s
9 public schools. CARES Act §§ 18002-03. Public school districts that receive CARES Act funds
10 must then “provide equitable services” to private-school students “in the same manner as
11 provided under” a different statute: Section 1117 of the Elementary and Secondary Education
12 Act of 1965 (ESEA), Pub. L. No. 89-10 (1965) (codified at 20 U.S.C. § 6320). CARES Act
13 § 18005. Plaintiffs argue that, because the rule allegedly apportions CARES Act funds to private
14 schools in a manner inconsistent with § 1117 of the ESEA, the rule is unlawful on a variety of
15 theories.
16
A. The Elementary and Secondary Education Act of 1965
17
The ESEA is a comprehensive statutory scheme that supports students in the Nation’s
18
elementary and secondary schools. Title I-A of the ESEA is designed to “improv[e] the
19
academic achievement of” students who are failing (or are at risk of failing) to meet academic
20
standards. 20 U.S.C. § 6314(a). Title I-A accomplishes this by providing federal funding to
21
States and to local school districts (referred to as Local Educational Agencies, or LEAs) based on
22
the number of economically disadvantaged children that they serve. Id. §§ 6313(a), 6314(a),
23
(b)(6), 6315(c); see id. § 6333(c) (establishing the parameters for allocating Title I-A funds
24
among States and their constituent public school districts).
25
The goal of Title I-A is to provide “all children significant opportunity to receive a fair,
26
equitable, and high-quality education,” regardless of whether those children attend a public or
27
private school. See 20 U.S.C. §§ 6301-02. To that end, Section 1117 of the ESEA (codified at
28
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1 20 U.S.C. § 6320) requires local school districts to supply academic services—such as special-
2 education services, counseling, mentoring, and tutoring—to certain children enrolled in private
3 schools. Id. § 6320(a)(1)(A). Such services must “be equitable in comparison to services and
4 other benefits for public school children” who benefit from Title I-A funds. Id. § 6320(a)(3)(A).
5 Accordingly, Section 1117 instructs local school districts to set aside funds for private schools
6 “equal to the proportion of funds allocated to participating school attendance areas based on the
7 number of children from low-income families who attend private schools.” Id.
8 § 6320(a)(4)(A)(i). These funds are then used to provide services to private-school students who
9 are eligible to receive them. A private-school student’s eligibility for these services does not turn
10 on his or her socioeconomic standing, despite the fact that the amount of money a school district
11 must reserve to pay for such services is calculated by reference to the number of low-income
12 private-school students who live within the district’s borders. Instead, a student’s eligibility
13 depends on the extent to which he or she is “failing, or . . . at risk of failing, to meet” applicable
14 academic standards. Id. § 6315(c)(1)(B).
15 Section 1117 separately requires local school districts to “timely and meaningful[ly]
16 consult[] with appropriate private school officials.” 20 U.S.C. § 6320(a)(1)(A). The statute sets
17 forth a detailed consultation procedure that specifies the issues that must be discussed, id.
18 § 6320(b)(1)(A)-(L), (4); the way disagreements must be raised, id. § 6320(b)(2), (6); and the
19 timeframe in which consultation must occur, id. § 6320(b)(3). The statute also requires that
20 “[t]he control of funds provided under” Title I-A of the ESEA “shall be in a public agency.” Id.
21 § 6320(d)(1).
22
B. The CARES Act
23
The CARES Act appropriated over $16 billion in financial assistance that can be used to
24
support elementary and secondary schools, and instructed the Secretary of Education to
25
administer and allocate that money through two separate funds.
26
The Governor’s Emergency Education Relief (GEER) Fund provides emergency grants
27
to state governors. CARES Act § 18002. Governors may use GEER funds to “support . . . any
28
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1 . . . education related entity within the State that the Governor deems essential for carrying out
2 emergency educational services to students.” Id. § 18002(c). Governors may also use GEER
3 funds to give “emergency support . . . grants to local education agencies that the State
4 educational agency deems have been most significantly impacted by coronavirus.” Id. The
5 Department of Education must allocate GEER funds among States using a specified statutory
6 formula. Id. § 18002(b) (directing the Secretary to allocate funds based 60 percent on a State’s
7 “relative population of individuals aged 5 through 24,” and 40 percent on the amount of Title I-A
8 funds that State would receive under the ESEA, 20 U.S.C. § 6333(c)).
9 The Elementary and Secondary School Emergency Relief (ESSER) Fund provides
10 emergency grants for elementary and secondary schools. CARES Act § 18003. The Department
11 of Education must allocate ESSER funds among States “in the same proportion as each State
12 received under [Title I-A] of the ESEA . . . in the most recent fiscal year.” Id. § 18003(b).
13 Similarly, States must allocate ESSER funds to their school districts “in proportion to the amount
14 of funds such local educational agencies and charter schools that are local educational agencies
15 received under [Title I-A] of the ESEA . . . in the most recent fiscal year.” Id. § 18003(c). A
16 school district may use ESSER funds to pay for services that fall within twelve broad categories
17 of expenditures, including emergency preparedness; cleaning supplies; distance-learning
18 technology; meal services; mental health; “[a]ny activity authorized by the ESEA” or several
19 other education-related statutes; and any “[o]ther activities that are necessary to maintain the
20 operation of and continuity of services in [LEAs] and continuing to employ existing staff.” Id.
21 § 18003(d).
22 The CARES Act authorizes the Department of Education to distribute GEER and ESSER
23 funds only to public school districts. But because the coronavirus pandemic has affected both
24 public and private institutions, Section 18005 of the CARES Act instructs school districts that
25 receive GEER or ESSER funds to “assist[] . . . non-public schools” using the CARES Act funds
26 they have been allocated. CARES Act § 18005 (casing fixed). Specifically, local districts “shall
27 provide equitable services in the same manner as provided under section 1117 [20 U.S.C.
28 § 6320] of the ESEA of 1965 to students and teachers in non-public schools.” Id. § 18005(a)
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1 (referencing 20 U.S.C. § 6320). Section 18005 further requires that these equitable services must
2 be “determined in consultation with representatives of non-public schools.” Id. Finally, § 18005
3 requires that “[t]he control of funds for” equitable services provided to private schools “shall be
4 in a public agency.” Id. § 18005(b).
5
II. REGULATORY BACKGROUND
6
In April 2020, the Department issued guidance to help public school districts implement
7
their § 18005 obligation to provide equitable services to students and teachers at private schools.
8
Pls.’ Request for Jud. Notice [“RJN”] at Ex. C, ECF No. 35-3. The Department’s guidance
9
noted that the CARES Act—unlike Title I-A of the ESEA—places no restrictions on the
10
eligibility of private-school students and teachers to receive “equitable services” under § 18005.
11
The guidance thus advised that GEER and ESSER funds may be used to “serve all non-public
12
school students and teachers without regard to family income, residency, or eligibility based on
13
low achievement. Id. at 3. The guidance also noted that the CARES Act permits public school
14
districts that receive GEER or ESSER funds to spend that money to help all schools within the
15
district, and not merely schools with a sufficient number of low-income students to qualify for
16
funding under Title I-A of the ESEA. The guidance thus advised that, when calculating the share
17
of “equitable services” that public school districts must give private schools under § 18005,
18
public school districts must account for the private schools’ total enrollment—not merely for the
19
number of low-income students. Id. at 6-7.
20
In July 2020, the Department formalized its guidance in an interim final rule. CARES
21
Act Programs; Equitable Services to Students and Teachers in Non-public Schools, 85 Fed. Reg.
22
39,479. The Department issued the rule without prior notice and comment because of the
23
significant educational disruptions caused by the coronavirus pandemic. Specifically, § 18005 of
24
the CARES Act forbids public school districts that receive GEER or ESSER funds from using
25
those funds without consulting with the private schools within their boundaries, which in turn
26
requires districts to “determin[e] the amount of funds available for [equitable] services.” Id. at
27
39,483. The Department provided a 30-day comment period, however, and committed to
28
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1 considering the views of interested parties in determining whether to undertake additional
2 rulemaking. Id. at 39,484.
3 The Department explained that the rule was necessary to “resolve[] a critical ambiguity
4 . . . with respect to the equitable services obligation owed by LEAs that receive CARES Act
5 funds to students and teachers in non-public schools.” 85 Fed. Reg. at 39,479. The Department
6 noted that, apart from requiring equitable services to be provided “in the same manner as
7 provided under section 1117” of the ESEA, § 18005 did not specify how to ensure that the
8 services provided are in fact “equitable.” Id. at 39,479-81. The Department further noted that
9 § 1117 of the ESEA is inconsistent with the CARES Act in several crucial respects. For
10 example, § 1117 forbids private-school students from benefiting from equitable services
11 provided under the ESEA unless they are failing (or in danger of failing) to satisfy certain
12 curricular standards. 20 U.S.C. § 6320. But both GEER and ESSER funds may plainly be used
13 for the benefit all students, not merely those students in academic jeopardy. The Department
14 therefore concluded that rulemaking was necessary to resolve these ambiguities. See 85 Fed.
15 Reg. at 39,479 (recognizing that the Department was obliged to “construe the CARES Act based
16 on plain meaning, context, and coherence within the overall statutory structure . . . and fit, if
17 possible, all its parts into a harmonious whole”).
18 The Department then explained that a “mechanistic application” of § 1117 to § 18005’s
19 equitable-services requirement would “disadvantage” private-school students and contravene
20 congressional intent. 85 Fed. Reg. at 39,479. The Department noted that, if § 1117’s
21 proportional-allocation provisions were applied to CARES Act funds, public school districts
22 would only be required to reserve funds for private schools commensurate to the number of
23 low-income students at each private school—while remaining free to spend their portion of the
24 funds on projects benefiting all public-school students. Id. at 39,482. As the Department
25 explained, “the CARES Act does not limit services based on residence and poverty,” so “it
26 stands to reason that an LEA should not use residence and poverty to determine the proportional
27 share of available funds for equitable services to non-public school students.” Id. at 39,482-83.
28 The rule’s interpretation of § 18005 differs from the Department’s prior guidance only in
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1 that it accords public school districts more choice about how to satisfy the equitable-service
2 requirement. The Department sought to broaden the number of options available to such districts
3 in response to criticism from certain States that its guidance was too inflexible. 85 Fed. Reg. at
4 39,480. Under the rule, school districts have two pathways to compliance. First, a school
5 district can commit to using its CARES Act funds exclusively on schools eligible for funds under
6 Title I-A of the ESEA—that is, on schools with high instances of poverty. Id. at 39,482. If so,
7 that district need only reserve funds for equitable services as specified by § 1117’s proportional-
8 allocation provisions—that is, based on the number of low-income students enrolled at private
9 schools. 34 C.F.R. § 76.665(c)(1)(i). Second, a school district may instead commit to using
10 CARES Act funds to benefit all schools, not merely schools with high instances of poverty. Id.
11 at 39,482. To maintain equity, that district must then reserve funds for equitable services using
12 the same measure—that is, the number of all students enrolled at private schools. 34 C.F.R.
13 § 76.665(c)(1)(ii).
14 The Department determined that its interpretation was the appropriate way to ensure that
15 “[e]ducational services and other benefits for students and teachers in non-public elementary and
16 secondary schools [] be equitable in comparison to services and other benefits for public school
17 students and teachers participating in CARES Act programs.” 34 C.F.R. § 76.665(d). 1
18 ARGUMENT
19 A preliminary injunction is “an extraordinary and drastic remedy” that should not be
20 granted “unless the movant, by a clear showing, carries the burden of persuasion.” Lopez v.
21 Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). “A plaintiff seeking a preliminary injunction must
22 establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in
23 the absence of preliminary relief, that the balance of equities tips in his favor, and that an
24 1
On May 15, 2020, the House of Representatives passed legislation, referred to as the “HEROES
25 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
26 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
27 during the 2019-2020 school year relative to the sum of such students in public schools” that
28 same year. See HEROES Act, H.R. 6800, 116th Cong. § 10604 (2020).
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1 injunction is in the public interest.” Karnoski v. Trump, 926 F.3d 1180, 1198 (9th Cir. 2019)
2 (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)); see Munaf v. Geren, 553 U.S.
3 674, 690 (2008) (likelihood of success requires far more than identifying “serious, substantial,
4 difficult[,] and doubtful” questions). Plaintiffs fail to meet any of these requirements.
5
6
I. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS
7
A. Plaintiffs’ principal argument is that the Department’s rule violates the
8
Administrative Procedure Act because it cannot be reconciled with § 18005 of the CARES Act,
9
and because the CARES Act did not give the Department authority to interpret § 18005. 2 See
10
ECF No. 24, Am. Compl., at ¶¶ 163-68, 178-82. This argument lacks merit.
11
Section 18005 of the CARES Act requires public school districts to provide equitable
12
services to private schools “in the same manner” as that specified in § 1117 of the ESEA.
13
CARES Act, § 18005. Section 1117 applies to certain equitable services provided within the
14
ambit of Title I-A of the ESEA, and includes a proportional-apportionment formula based on
15
the number of low-income students enrolled at each private school within a public school
16
district’s borders. 20 U.S.C. § 6320(a)(4)(A). But as the Department explained, § 1117—and
17
the ESEA more broadly—cannot be imported into the CARES Act scheme in “mechanistic”
18
fashion. 85 Fed. Reg. 39,479, 39, 479.
19
Two examples illustrate the point. First, § 1117 prohibits private-school students from
20
receiving “equitable services” using Title I-A funds unless they are at risk of failing out of
21
school. 20 U.S.C. § 6320(a)(1)(A) (restricting eligibility for services to “eligible children”); id.
22
§ 6315(c)(1)(B) (defining “eligible children” as “children identified by the school as failing, or
23
most at risk of failing, to meet . . . State academic standards”). But the plain text of the CARES
24
Act makes clear that GEER and ESSER funds may be used to pay for a broad range of services
25
that benefit all students—such as disaster-preparedness planning, sanitation supplies, distance-
26
27 2
Although Plaintiffs purport to challenge both the IFR and the April guidance, the guidance has
28 been superseded by the Rule, lacks the force and effect of law, does not constitute final agency
action, and is thus not subject to legal challenge.
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1 learning technology, and pandemic-response plans developed in coordination with authorities at
2 every level of government. CARES Act §§ 18002(c), 18003(d); see 85 Fed. Reg. at 39,480.
3 Incorporating § 1117’s “eligible children” restriction into the CARES Act would contravene
4 those other CARES Act provisions by forcing private schools to restrict these services to the
5 academically challenged—for instance, by implementing a pandemic-response plan that applies
6 only to that subset of students, or by purchasing sanitation supplies that can be used only to
7 clean certain classrooms.
8 Second, two of § 18005’s provisions are substantively identical to two provisions in
9 § 1117. See 85 Fed. Reg. at 39,481. Section 18005(a) requires public school districts to consult
10 with private schools in deciding how equitable services should be provided, just like § 1117(b).
11 Compare CARES Act § 18005(a) with 20 U.S.C. § 6320(b). And § 18005(b) requires public
12 schools to maintain control over all CARES Act funds, using language nearly identical to that in
13 § 1117(d). Compare CARES Act § 18005(b) with 20 U.S.C. § 6320(d). If the CARES Act’s
14 use of the phrase “in the same manner” incorporated every jot and tittle of § 1117, both the
15 consultation and the public-control provisions of § 18005 would be superfluous.
16 For these reasons, the Department concluded, the phrase “in the same manner” must
17 mean that § 18005 incorporates something less than every provision of § 1117.
18 B. In light of the disparate purposes of the CARES Act (to provide emergency relief
19 to all students and schools) and Title I-A (to provide services for low-income or disadvantaged
20 students), the Department reasonably concluded that “in the same manner” does not incorporate
21 § 1117’s proportional-apportionment provisions. Those provisions—developed in the wholly
22 separate context of equitable services provided under Title I-A—require public school districts
23 to reserve funds in proportion to the number of low-income students enrolled in private schools.
24 20 U.S.C. § 6320(a)(4)(A). As noted, however, Congress designed both the GEER and the
25 ESSER programs to permit expenditures across a wide swath of areas that clearly benefit all
26 students. See CARES Act §§ 18002(c), 18003(d). Given this tension, the Department properly
27 declined to interpret the phrase “in the same manner” to import § 1117’s proportional-
28 apportionment provisions into the CARES Act. See King v. Burwell, 135 S. Ct. 2480, 2489
DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
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1 (2015) (“[O]ftentimes the meaning—or ambiguity—of certain words or phrases may only
2 become evident when placed in context.”) (citation and internal quotation marks omitted);
3 Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280,
4 290 (2010) (holding that courts “construe statutes, not isolated provisions”). Indeed, the word
5 “manner” suggests that § 18005 refers to the way in which services are provided under § 1117,
6 and not how the money to pay for those services is apportioned. See American Heritage Dict.
7 763 (2d College ed. 1985) (defining “manner” as “[a] way of doing something or the way in
8 which a thing is done or happens”).
9 In any event, “[t]he power of an administrative agency to administer a congressionally
10 created . . . program necessarily requires the formulation of policy and the making of rules to fill
11 any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974)
12 (emphasis added). The phrase “in the same manner” is at a minimum ambiguous with regard to
13 the question whether Congress intended § 1117’s proportional-apportionment provisions to
14 apply to “equitable services” provided with CARES Act funds. To the extent the text of
15 § 18005 does not supply a clear answer to that question, the Department may use rulemaking to
16 “develop a harmonious construction faithful” to Congress’s directive that billions of dollars in
17 emergency appropriations be used equitably. 85 Fed. Reg. at 39,479. Indeed, the Secretary of
18 Education has broad authority to “make, promulgate, [and] issue, . . . rules and regulations
19 governing the manner of operation of, and governing the applicable programs administered by,
20 the Department.” 20 U.S.C. § 1221e-3; accord id. § 3474 (“The Secretary is authorized to
21 prescribe such rules and regulations as the Secretary determines necessary or appropriate to
22 administer and manage the functions of the Secretary or the Department.”). And it is well
23 settled that, “whenever decision as to the meaning or reach of a statute has involved reconciling
24 conflicting policies, and a full understanding of the force of the statutory policy in the given
25 situation has depended upon more than ordinary knowledge respecting the matter subjected to
26 agency regulations,” an agency’s resolution of a statutory ambiguity warrants deference.
27 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (citation
28 omitted).
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1 Deference is appropriate where, as here, the agency’s interpretation of an ambiguous
2 statute is reasonable. The Department of Education resolved the tension between the CARES
3 Act and the provisions of § 1117 by reference to Congress’s command that the services
4 provided to private schools be “equitable.” CARES Act § 18005(a). The Department
5 determined that it is inequitable to apportion expenditures for private schools on the basis of
6 low-income students when public school districts may use their share of CARES Act funds to
7 benefit all schools and students. 85 Fed. Reg. at 39,483. In the Department’s expert judgment,
8 equity in this context instead demands either that: (1) public school districts that spend CARES
9 Act funds to benefit all schools and students apportion private-school funds based on total
10 enrollment; or (2) public school districts that choose to apportion private-school funds based on
11 low-income enrollment then limit their own spending to low-income schools. Id. at 39,482.
12 Those, of course, are the same two pathways to § 18005 compliance that the challenged rule
13 sets forth. Id.
14 Plaintiffs dispute (Pls.’ for Prelim. Inj. (“Mot.”) 15-16, ECF No. 35) that § 18005 is
15 ambiguous. In their view, if Congress intended that CARES Act funds be apportioned to
16 private schools based on total enrollment, Congress would have written § 18005 to cross-
17 reference § 8501 of the ESEA, which is codified at 20 U.S.C. § 7881. That statute governs
18 equitable services rendered under a different portion of the ESEA, and it is functionally
19 identical to § 1117 in all but one respect: unlike § 1117,
20 § 8501 requires public school districts to reserve funds for private schools in proportion to their
21 total enrollment. Id. § 7881(a)(4)(A). But even if Congress had enacted this hypothetical
22 version of § 18005, ambiguity would remain. Like § 1117, § 8501 also includes consultation
23 and public-control provisions indistinguishable from those present in § 18005. Id. § 7881(c)
24 (consultation); id. § 7881(d) (public control). Thus, had Congress required CARES Act funds
25 to be apportioned “in the same manner as that specified in § 8501,” questions would remain
26 about which provisions of § 8501 Congress meant to incorporate—since incorporating all of
27 § 8501’s provisions would create the very same superfluity whose existence illustrates the
28 ambiguity that the Department intended the rule to resolve.
DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
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1 Plaintiffs respond (Mot. 20-25) that the challenged rule is arbitrary or capricious. But the
2 rule reflects the Department’s considered resolution of the tension that it perceived between the
3 purposes of the GEER and ESSER programs and § 18005’s ambiguous reference to § 1117. And
4 the rule offers public school districts the choice of two equitable paths, to fulfill the statutory
5 command in the CARES Act that the services provided by public school districts be “equitable.”
6 Cf. King, 135 S. Ct. at 2493 (“We cannot interpret federal statutes to negate their own stated
7 purposes.”) (quoting New York State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 419-20
8 (1973)). This Court should decline plaintiffs’ invitation to second-guess the Department’s policy
9 judgment on that score. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 530 (2009).
10 Plaintiffs further contend (Mot. 22) that the IFR is arbitrary and capricious because the agency
11 “relied on factors which Congress has not intended it to consider, entirely failed to consider an
12 important aspect of the problem,” and “offered an explanation for its decision that runs counter
13 to the evidence before the agency.” But plaintiffs’ one-sided assessment of harms ignores those
14 suffered by private school students and teachers during the pandemic, and overlooks that
15 Congress directed that use of CARES Act funds be equitable. The Department’s decision to
16 require parity between the students benefiting from CARES Act services and the private-school
17 students counted in apportioning CARES Act funds is a policy choice not susceptible to judicial
18 second-guessing either.
19 C. Plaintiffs next assert that the challenged rule was procedurally defective. Their
20 arguments miss the mark.
21 Plaintiffs contend (Mot. 21) that the agency’s decision must be set aside for failure to
22 explain “why it was reversing its own prior guidance and other instructions to SEAs and LEAs
23 regarding how equitable services under Section 1117 should be provided.” But the agency has
24 not reversed course or rescinded prior policy. The Department’s general interpretation of Section
25 1117’s equitable-services mandate, issued in October 2019, see RJN Exh. B, ECF No. 35-3,
26 remains unaltered—as does its interpretation of the provision of equitable services using Title I
27 funds. In contrast, the challenged rule relates to equitable services provided using CARES Act
28 funds—a question the Department could not possibly have had any position or policy on
DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
Case No. 3:20-cv-4478-JD
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1 previously. As the rule explains, the Department’s interpretation rests on the fact that CARES
2 Act funds can be used more broadly than Title I-A funds, and that the national emergency
3 prompting its passage “has harmed all our Nation’s students by disrupting their education.” 85
4 Fed. Reg. at 39,479. 3
5 Plaintiffs also contend (Mot. 25) that the Department lacked good cause to issue the rule
6 as an interim final rule. This argument is belied by plaintiffs’ request for the extraordinary
7 remedy of an injunction, which they claim is necessitated by the same exigent circumstances
8 underlying the Department’s decision. Plaintiffs cannot meaningfully dispute that the
9 coronavirus pandemic constitutes an emergency of unprecedented scale; indeed, the harms to
10 schools engendered by that emergency form the basis of their preliminary-injunction motion.
11 And as the Department recognized, “in light of the current national emergency[’s] . . . disruption
12 on education in both public and non-public schools, and the immediate need for certainty,” good
13 cause existed to waive ordinary rulemaking procedures. 85 Fed. Reg. at 39,483.
14 D. Plaintiffs’ constitutional claims should fail for the same reasons that their APA
15 claims should be rejected. Each such claim rests on the premise that the Department of
16 Education lacked statutory authority to issue the challenged rule. But as the Supreme Court has
17 held, “in cases in which the [government] concedes, either implicitly or explicitly, that the only
18 source of [its] authority is statutory, no constitutional question whatever is raised,” “only issues
19 of statutory interpretation.” Dalton v. Specter, 511 U.S. 462, 474 n.6 (1994). Plaintiffs’ contrary
20 view would have the sweeping implication that every challenge to an agency regulation could be
21 recharacterized as a “constitutional” claim, given the general absence of any background
22 constitutional authority for agencies to take action in the absence of congressional authorization.
23 Because the challenged rule is a permissible construction of § 18005, there is no freestanding
24 constitutional impediment to the Department’s actions.
25
26
3
Plaintiffs’ argument that “longstanding policies may have engendered serious reliance
27 interests,” Mot. 22 (quoting Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct.
28 1891, 1913 (2020)), fails for the same reason: There was no “longstanding policy” on which to
reasonably rely.
DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
Case No. 3:20-cv-4478-JD
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1 II. PLAINTIFFS HAVE NOT ESTABLISHED THAT IRREPARABLE HARM IS
LIKELY IN THE ABSENCE OF AN INJUNCTION
2
Plaintiffs seeking a preliminary injunction bear the burden of demonstrating that they are
3
“likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20;
4
see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)
5
(plaintiffs must show irreparable harm is likely, not just possible). To establish a likelihood of
6
irreparable harm, plaintiffs “must do more than merely allege imminent harm sufficient to
7
establish standing; [they] must demonstrate immediate threatened injury.” Boardman v. Pac.
8
Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016). Plaintiffs must also show that the
9
threatened harm would not occur if an injunction were granted. See Winter, 555 U.S. at 20;
10
Sierra Club v. Trump, 379 F. Supp. 3d 883, 925-26 (N.D. Cal. 2019) (preliminary injunction
11
warranted only if it “will prevent some irreparable injury that is likely to occur before the Court
12
has time to decide the case on the merits”) (emphasis added), appeal filed, No. 19-16102 (9th
13
Cir. May 29, 2019).
14
Here, plaintiffs seek an injunction to allow public school districts to apportion CARES
15
Act money as they see fit. It is well established that, ordinarily, economic injury does not
16
qualify as irreparable harm. See Rent–A–Ctr., Inc. v. Canyon Tele. & Appliance Rental, Inc.,
17
944 F.2d 597, 603 (9th Cir. 1991); see also Barber v. Ohana Military Comm., LLC, 694 Fed.
18
App’x 583, 584 (9th Cir. 2017) (“Economic injury alone cannot support a finding of irreparable
19
harm”). Even putting that aside, plaintiffs’ claimed injuries are not irreparable because, if they
20
were ultimately to prevail in their challenge to the rule, public school districts could at that point
21
reapportion unobligated GEER and ESSER funds to provide equitable services under plaintiffs’
22
interpretation of § 18005. This conclusion is not altered by the fact that public school districts
23
must consult with private school officials regarding the provision of equitable services before
24
expenditures are made. Plaintiffs do not suggest that such districts must, or even desire to,
25
spend all their GEER and ESSER funds in the immediate future, or even before the start of the
26
school year. Accordingly, nothing prevents plaintiffs from reapportioning funds and altering
27
28
DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
Case No. 3:20-cv-4478-JD
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1 the provision of equitable services for private-school students in the event plaintiffs prevail. 4
2 Plaintiffs attempt (Mot. 29) to ground their irreparable-harm argument on purported
3 “legal jeopardy” caused by an inability to “comply with certifications verifying that they will
4 abide by both the CARES Act and [the Department’s] regulations.” This allegation rests on the
5 mistaken premise that the rule at issue is fundamentally incompatible with the CARES Act. But
6 even accepting that premise, plaintiffs have failed to demonstrate that the Department—the
7 agency charged with administering the GEER and ESSER programs, and the agency to whom
8 plaintiffs must make the relevant certifications—would mount a legal challenge to the use of
9 funds in a manner consistent with the Department’s own regulation.
10
III. PLAINTIFFS HAVE NOT ESTABLISHED THAT THE PUBLIC INTEREST SUPPORTS AN
11
INJUNCTION
12
Plaintiffs must also establish both that the balance of equities tips in their favor and that
13
the public interest favors an injunction. Alliance for the Wild Rockies, 632 F.3d at 1135. These
14
factors merge when the federal government is a party. Drakes Bay Oyster Co. v. Jewell, 747
15
F.3d 1073, 1092 (9th Cir. 2014). Plaintiffs fail to support an injunction on either ground.
16
Plaintiffs assert (Mot. 29) that “the challenges caused by the pandemic have contributed
17
to heightened need for public-school funding,” and that “Congress specifically responded to this
18
crisis by making GEER and ESSER funds available to public schools that needed assistance to
19
respond to the pandemic.” Those statements present only half the picture. In arguing that an
20
injunction is needed to “[s]upport[] public schools’ continued ability to provide their students
21
with an education,” id. at 30 (emphasis added), plaintiffs overlook (1) that Congress also
22
directed that equitable services be provided to private-school students, who also have had their
23
educations interrupted by the pandemic, and (2) that the Department reasonably determined that
24
4
25 Plaintiffs rely on California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018), for the proposition that
economic injury can support a finding of irreparable harm in the APA context because damages
26 are not available to compensate for losses. But that case is distinguishable because the rule at
issue was found likely to cause the state to expend its own money to compensate for the effect of
27 the rule, whereas here the rule concerns only the amount of emergency relief funds available to a
28 public school district. Moreover, plaintiffs do not claim to need to spend all of their CARES Act
funds immediately in a manner that would make later reapportionment impossible.
DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
Case No. 3:20-cv-4478-JD
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1 private-school services would not be equitable unless funded by reference to the students whom
2 a public school chooses to serve under the CARES Act, i.e., students in Title I schools or in all
3 schools. In other words, the harms articulated by plaintiffs as a result of the pandemic are
4 common to many throughout the country and do not justify preliminary relief to thwart the
5 Department’s determination of how best to align § 1117 with the broad purposes of the CARES
6 Act and the equity mandate imposed by Congress. The public interest here is in allowing the
7 Department to continue implementing the sections of the CARES Act that Congress assigned it
8 to administer, and to ensuring that all students benefit from CARES Act funds in an equitable
9 manner.
10 CONCLUSION
11
For the foregoing reasons, Plaintiffs’ motion for preliminary injunction should be denied.
12
DATED: July 30, 2020 Respectfully submitted,
13
ETHAN P. DAVIS
14 Acting Assistant Attorney General
15
DAVID MORRELL
16 Deputy Assistant Attorney General
17 JENNIFER RICKETTS
18 Director, Federal Programs Branch
19 /s/ William K. Lane III
WILLIAM K. LANE III
20 (D.C. Bar # 1034955)
21 Counsel
Civil Division
22 U.S. Department of Justice
950 Pennsylvania Ave., N.W.
23 Washington, D.C. 20530
24 (202) 305-7920
william.lane2@usdoj.gov
25
26
Attorneys for Defendants
27
28
DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
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