Proposed Order, State of Michigan et al. v. DeVos, No. 3:20-cv-04478 (N.D. Cal.), Doc. 25-4 (July 17, 2020)

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A proposed order granting Plaintiffs' motion for preliminary injunction in State of Michigan et al. v. DeVos, No. 3:20-cv-04478-SK, in the U.S. District Court for the Northern District of California, San Francisco Division, Document 25-4, filed July 17, 2020. It would enjoin Elisabeth D. DeVos, as Secretary of Education, and the U.S. Department of Education from imposing or enforcing, as to Plaintiffs and Covered Entities, any requirement to calculate equitable services shares under Section 18005 of the CARES Act in a manner not explicitly described by Section 1117(a)(4)(A) of the ESEA. Further paragraphs cover GEER and ESSER Funds limits, the April 30, 2020 Guidance, the Rule, penalties and investigations. The order does not relieve Covered Entities of their equitable services obligation under Section 1117.

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       Case 3:20-cv-04478-SK Document 25-4 Filed 07/17/20 Page 1 of 4



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 8                            IN THE UNITED STATES DISTRICT COURT
 9                       FOR THE NORTHERN DISTRICT OF CALIFORNIA
10                                      SAN FRANCISCO DIVISION
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12   STATE OF MICHIGAN, STATE OF                           Case No. 20-cv-4478-SK
     CALIFORNIA, DISTRICT OF
13   COLUMBIA, STATE OF HAWAII, STATE                      [PROPOSED] ORDER GRANTING
     OF MAINE, STATE OF MARYLAND,                          PLAINTIFFS’ MOTION FOR
14   STATE OF NEW MEXICO,                                  PRELIMINARY INJUNCTION
     COMMONWEALTH OF
15   PENNSYLVANIA, STATE OF
     WISCONSIN, THE BOARD OF
16   EDUCATION FOR THE CITY SCHOOL                         Judge:        Hon. Sallie Kim
     DISTRICT OF THE CITY OF NEW YORK,                     Trial Date:   None Set
17   BOARD OF EDUCATION FOR THE CITY                       Action Filed: July 7, 2020
     OF CHICAGO, CLEVELAND
18   MUNICIPAL SCHOOL DISTRICT
     BOARD OF EDUCATION, and SAN
19   FRANCISCO UNIFIED SCHOOL
     DISTRICT,
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                                             Plaintiffs,
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                   v.
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23   ELISABETH D. DEVOS, in her official
     capacity as the United States Secretary of
24   Education, and U.S. DEPARTMENT OF
     EDUCATION,
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                                          Defendants.
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                        [Proposed] Order Granting Pls.’ Mot. for Prelim. Inj. (20-cv-4478-SK)
        Case 3:20-cv-04478-SK Document 25-4 Filed 07/17/20 Page 2 of 4



 1           On July __, 2020, Plaintiffs the State of Michigan, the State of California, the District of
 2   Columbia, the State of Hawaii, the State of Maine, the State of Maryland, the State of New
 3   Mexico, the Commonwealth of Pennsylvania, the State of Wisconsin, the Board of Education of
 4   the City School District of the City of New York, Board of Education for the City of Chicago,
 5   Cleveland Municipal School District Board of Education, and San Francisco Unified School
 6   District (Plaintiffs) filed a Motion for Preliminary Injunction (Motion), and a hearing on that
 7   Motion was held.
 8           The Court has considered the Motion and documents filed therewith, all of the papers on
 9   file in this action, and the evidence and arguments presented at the hearing, and hereby GRANTS
10   Plaintiffs’ Motion. The Court finds that each of the necessary elements for issuing a preliminary
11   injunction are met. In particular, the Court finds that Plaintiffs are likely to prevail on the merits
12   of their claims; absent a preliminary injunction, Plaintiffs would be likely to suffer irreparable
13   injuries; the balance of the equities favor Plaintiffs; and the requested relief is in the public
14   interest.
15                                     PRELIMINARY INJUNCTION
16   Now, therefore, it is hereby ORDERED that:
17           Defendant Elisabeth D. DeVos, in her official capacity as Secretary of the United States
18   Department of Education, and the United States Department of Education (Defendants), and
19   Defendants’ officers, agents, servants, employees, and attorneys, and any other persons who are
20   in active concert or participation with them, ARE HEREBY RESTRAINED AND ENJOINED
21   from committing, or performing directly and indirectly, any and all of the following acts during
22   the pendency of this action with respect to any Plaintiff, any entity operated by any Plaintiff, any
23   entity established by the laws of any Plaintiff, or any local or state educational entity located
24   within the geographical boundaries of any Plaintiff (Covered Entities):
25       1. Imposing or enforcing any requirement to calculate the proportional share of funds for
26           equitable services required under Section 18005 of the Coronavirus Aid, Relief, and
27           Economic Security Act (CARES Act), Public Law 116–136, 134 Stat. 281, in a manner
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                         [Proposed] Order Granting Pls.’ Mot. for Prelim. Inj. (20-cv-4478-SK)
     Case 3:20-cv-04478-SK Document 25-4 Filed 07/17/20 Page 3 of 4



 1      not explicitly described by Section 1117(a)(4)(A) of the Elementary and Secondary
 2      Education Act of 1965 (ESEA);
 3   2. Imposing or enforcing any limitation on the use of the Governor’s Emergency Education
 4      Relief (GEER) Funds or Elementary and Secondary Schools Emergency Relief (ESSER)
 5      Funds on the basis that a school or other recipient does not participate under Title I, Part A
 6      of the ESEA;
 7   3. Imposing or enforcing any requirement that GEER Funds or ESSER Funds supplement,
 8      not supplant, existing funds or expenditures, including, but not limited to, the requirement
 9      described in Section 1118(b) of the ESEA;
10   4. Imposing or enforcing on any Covered Entity any requirement, guidance, or
11      recommendation to provide equitable services under Section 18005 of the CARES Act
12      with methods and procedures not explicitly described by Section 1117 of the ESEA,
13      including, but not limited to, the provisions of the Department of Education guidance
14      document titled Providing Equitable Services to Students and Teachers in Non-public
15      Schools Under the CARES Act Programs (April 30, 2020) (Guidance), attached to the
16      Complaint as Exhibit A, or Providing Equitable Services to Students and Teachers in
17      Non-public Schools, 85 Fed. Reg. 39,479 (July 1, 2020) (Rule), or any other substantially
18      equivalent requirements;
19   5. Penalizing any Covered Entity, including by withholding, terminating, or taking any
20      action to recover funds provided by the CARES Act or a program established by the
21      ESEA, on the basis of any alleged failure to comply with (1) the Guidance, attached to the
22      Complaint as Exhibit A; (2) the Rule; or (3) any other substantially equivalent
23      requirements to provide equitable services under Section 18005 of the CARES Act with
24      methods and procedures not explicitly described by Section 1117 of the ESEA; and
25   6. Conducting any investigation of, or regulatory proceeding regarding, any Covered Entity
26      on the basis of any alleged failure to comply with the Guidance or the Rule, or any alleged
27      failure to provide equitable services under Section 18005 of the CARES Act with methods
28      and procedures not wholly described by Section 1117 of the ESEA.
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                    [Proposed] Order Granting Pls.’ Mot. for Prelim. Inj. (20-cv-4478-SK)
       Case 3:20-cv-04478-SK Document 25-4 Filed 07/17/20 Page 4 of 4



 1          This preliminary injunction does not relieve any Covered Entity of its obligation to
 2   provide equitable services under Section 18005 of the CARES Act with methods and procedures
 3   explicitly described by Section 1117 of the ESEA.
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 6   IT IS SO ORDERED.
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 8   Dated: ______________                                    ___________________________________
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                        [Proposed] Order Granting Pls.’ Mot. for Prelim. Inj. (20-cv-4478-SK)


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