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Home Source documents State of California v. DeVos, No. 3:20-cv-04478 (N.D. Cal.): Council of the Great City Schools amicus curiae brief in support of plaintiffs' motion for preliminary injunction (Document 47-1, filed July 24, 2020)

State of California v. DeVos, No. 3:20-cv-04478 (N.D. Cal.): Council of the Great City Schools amicus curiae brief in support of plaintiffs' motion for preliminary injunction (Document 47-1, filed July 24, 2020)

Summary

The Council of the Great City Schools' amicus curiae brief in support of the plaintiffs' motion for a preliminary injunction in State of Michigan et al. v. Elisabeth D. DeVos and the U.S. Department of Education, Civil Case No. 3:20-cv-04478-JD, Document 47-1, filed 07/24/20, in the U.S. District Court for the Northern District of California before Judge James Donato. The plaintiffs include Michigan, California, the District of Columbia, Maine, Maryland, Wisconsin and the boards of education of New York City, Chicago, Cleveland and San Francisco. The brief argues that Congress declined to require districts to allocate CARES Act equitable services funding on the basis of all private school students rather than eligible or low-income students. It is filed by Husch Blackwell LLP.

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 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 1 of 92




                                                               1   HUSCH BLACKWELL LLP
                                                                   Donald J. Mizerk Esq., (CA Bar No. 208477)
                                                               2   John W. Borkowski (IL Bar No. 6320147) (pro hac pending)
                                                                   120 South Riverside Plaza, Suite 2200
                                                               3   Chicago, Illinois 60606
                                                               4   Phone: (312) 526-1538
                                                                   Fax: (312) 655-1501
                                                               5   don.mizerk@huschblackwell.com

                                                               6   Attorneys for Amicus Curiae
                                                                   COUNCIL OF THE GREAT CITY SCHOOLS
                                                               7
                                                               8                        IN THE UNITED STATES DISTRICT COURT

                                                               9                      FOR THE NORTHERN DISTRICT OF CALIFORNIA

                                                              10
                                                              11   STATE OF MICHIGAN, STATE OF                  Civil Case No.3:20-cv-04478-JD
                                                              12   CALIFORNIA, DISTRICT OF
                                                                   COLUMBIA, STATE OF MAINE, STATE
                                                              13   OF MARYLAND, STATE OF NEW




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200
                                                                   MEXICO, STATE OF WISCONSIN, THE
                                                              14   BOARD OF EDUCATION FOR THE
                            Chicago, Illinois 60606
                                                                   CITY SCHOOL DISTRICT OF THE
                                                              15
                                                                   CITY OF NEW YORK, BOARD OF                   THE COUNCIL OF THE GREAT CITY
                            Phone: (312) 526-1538
                                                              16   EDUCATION FOR THE CITY OF                    SCHOOLS AMICUS CURIAE BRIEF IN
                                                                   CHICAGO, CLEVELAND MUNICIPAL                 SUPPORT OF PLAINTIFFS’ MOTION
                                                              17   SCHOOL DISTRICT, AND SAN                     FOR PRELIMINARY INJUNCTION
                                                                   FRANCISCO UNIFIED SCHOOL
                                                              18   DISTRICT,
                                                              19                               Plaintiffs,
                                                              20                 v.

                                                              21
                                                                   ELISABETH D. DEVOS, in her official          Judge: Hon. James Donato
                                                              22   capacity as the United States Secretary of   Trial Date: None set
                                                                   Education, and UNITED STATES
                                                              23                                                Action Filed: July 7, 2020
                                                                   DEPARTMENT OF EDUCATION,
                                                              24                               Defendants.
                                                              25
                                                              26
                                                              27
                                                              28

                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                        IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                               Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 2 of 92




                                                               1                                                       TABLE OF CONTENTS
                                                                                                                                                                                                                Page
                                                               2
                                                               3   TABLE OF AUTHORITIES ...................................................................................................... iii

                                                               4   STATEMENT OF INTEREST.................................................................................................... 1

                                                               5   SUMMARY OF ARGUMENT .................................................................................................... 2

                                                               6   BACKGROUND ........................................................................................................................... 3
                                                               7   ARGUMENT ................................................................................................................................. 4
                                                               8   I.        The Department Unlawfully Replaced the Equitable Services Allocation Method
                                                               9             Adopted by Congress with Its Own Preferred Approach. .................................................. 4

                                                              10             A.         The Department’s funding formula erroneously considers all private
                                                                                        school students rather than only low-income students residing in the
                                                              11                        district. .................................................................................................................... 5
                                                              12                        i.         Congress expressly declined to require public school districts to allocate
                                                                                                   equitable services funding on the basis of all students in private schools
                                                              13




HUSCH BLACKWELL LLP
                                                                                                   rather than “eligible” or low-income students. ........................................... 6
                      120 South Riverside Plaza, Suite 2200   14                        ii.        Congress also required that equitable services funding be allocated on the
                                                                                                   basis of student residence............................................................................ 8
                            Chicago, Illinois 60606
                                                              15
                                                                             B.         There were good reasons for Congress to choose the specific allocation
                                                              16                        formula that it did.................................................................................................... 8
                            Phone: (312) 526-1538
                                                              17             C.         There is bi-partisan support that Congress’s intent was that funds be
                                                                                        allocated based on the Title I formula................................................................... 11
                                                              18
                                                              19   II.       The Chaotic Manner in which the Department has Acted Has Delayed the
                                                                             Distribution of Critical Resources and Placed School Districts in Legal Jeopardy. ......... 12
                                                              20
                                                                             A.         The Guidance created unnecessary confusion for school districts and put
                                                              21                        them at legal risk. .................................................................................................. 13
                                                              22             B.         The Rule effectively mandates the Department’s flawed interpretation and
                                                                                        increases confusion and hardship for school districts. .......................................... 15
                                                              23
                                                              24             C.         The Department’s inconsistent interpretation also has resulted in delay in
                                                                                        the distribution of critical resources. ..................................................................... 18
                                                              25
                                                                   III.      The Interim Final Rule Adopted by the Department Would Divert Hundreds of
                                                              26             Millions of Dollars from Public Schools to Private Schools with Devastating
                                                                             Consequences for School Districts and their Students. .................................................... 20
                                                              27
                                                                             A.         The Amount of Funds Diverted is Substantial. ..................................................... 20
                                                              28
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                                                                                   THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                           IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
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                                                                             B.         The Diversion would Deprive Millions of Public School Students of
                                                               1                        Critical Resources and Life-Saving Services during the Pandemic...................... 22
                                                               2
                                                                   CONCLUSION ........................................................................................................................... 24
                                                               3
                                                                   CERTIFICATE OF SERVICE ................................................................................................. 25
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HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14

                            Chicago, Illinois 60606
                                                              15
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                            Phone: (312) 526-1538
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                                                                                                                                      ii
                                                                                  THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                          IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
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                                                               1                                                    TABLE OF AUTHORITIES
                                                                                                                                                                                                       Page(s)
                                                               2
                                                                   Statutory Authorities
                                                               3
                                                               4   20 U.S.C. § 6320 ............................................................................................................................. 5

                                                               5   20 U.S.C. § 7881 ............................................................................................................................. 7

                                                               6   20 U.S.C. § 3401 note ............................................................................................................ passim
                                                               7   CARES Act, PL 116-136, 134 Stat 281 (codified in scattered titles and sections of
                                                                    U.S.C.) ............................................................................................................................... passim
                                                               8
                                                               9   Rules and Regulations

                                                              10   CARES Act Programs; Equitable Services to Students and Teachers in Non-Public
                                                                    Schools, 85 Federal Register, 39479 (July 1, 2020) ................................................................... 1
                                                              11
                                                                   Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Federal
                                                              12     Register, 20811 (April 15, 2020) ................................................................................................ 9
                                                              13   Additional Authorities




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14
                                                                   Memorandum from Congressional Research Service to House Comm. on Educ. and
                            Chicago, Illinois 60606
                                                              15    Labor (July 1, 2020).................................................................................................................. 12

                                                              16   Morgan Craven and Roy L. Johnson, An Analysis of How the Department of Education’s
                            Phone: (312) 526-1538                   Equitable Services Rule Will Harm Texas Students and School Districts, IDRA ISSUE
                                                              17    BRIEF (July 16, 2020).......................................................................................................... 21, 23
                                                              18   Letter from Betsy DeVos, Sec'y, U.S. Dep't of Educ., to Carissa Moffat Miller, Exec.
                                                              19     Dir., Council of Chief State Sch. Officers (May 22, 2020) ...................................................... 15

                                                              20   Letter from Carissa Moffat Miller, Exec. Dir., Council of Chief State Sch. Officers, to
                                                                     Betsy DeVos, Sec'y, U.S. Dep't of Educ. (May 5, 2020).......................................................... 16
                                                              21
                                                                   Letter from Carissa Miller, Exec. Dir., Council of Chief State Sch. Officers, to Lamar
                                                              22     Alexander, U.S. Congress (June 24, 2020) ............................................................................... 18
                                                              23   Bianca Quilantan, Weekly Education: States Push Back Against Steering Coronavirus
                                                              24     Funds to Private Schools, POLITICO (June 1, 2020) ........................................................... 16, 17

                                                              25   Stephen Rich et al., Explore the SBA Data on Businesses that Received PPP Loans, THE
                                                                     WASHINGTON POST (July 6, 2020) .............................................................................................. 9
                                                              26
                                                                   Letter from Robert C. “Bobby” Scott, Rosa L. DeLauro, and Patty Murray, U.S.
                                                              27     Congress, to Betsy DeVos, Sec’y, U.S. Dep’t of Educ. (May 20, 2020) ................................. 11
                                                              28
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                                                                                   THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                           IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
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                                                                   Texas Educ. Agency, Providing Equitable Services to Students and Teachers in
                                                               1     Participating Private Non-Profit Schools Under the CARES Act Programs (updated
                                                               2     July 9, 2020) ............................................................................................................................. 19

                                                               3   Andrew Ujifusa, DeVos to Release Rule Cementing COVID Aid Push for Private School
                                                                     Students, EDUCATION WEEK (May 26, 2020) ........................................................................... 16
                                                               4
                                                                   Andrew Ujifusa, Sen. Alexander Splits from Betsy DeVos on COVID-19 Aid to Help
                                                               5     Private Schools, EDUCATION WEEK (May 21, 2020)................................................................ 12
                                                               6   U.S. Dep’t of Educ., Notice Announcing Availability of Funds and Deadline for the
                                                               7     Elementary and Secondary School Emergency Relief Fund (April 23, 2020) ......................... 13

                                                               8   U.S. Dep’t of Educ., Providing Equitable Services to Eligible Private School Children,
                                                                     Teachers, and Families Updated Non-Regulatory Guidance (Oct. 7, 2019) ............................. 5
                                                               9
                                                              10
                                                              11
                                                              12
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HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14

                            Chicago, Illinois 60606
                                                              15
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                            Phone: (312) 526-1538
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                                                                                                                                         iv
                                                                                   THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                           IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                            Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 6 of 92




                                                               1                                    STATEMENT OF INTEREST

                                                               2          Amicus curiae, the Council of the Great City Schools (“Council”), is a coalition of 76 of

                                                               3   the nation’s largest urban public school systems and is the only national organization exclusively

                                                               4   representing the needs of urban public schools. Founded in 1956 and incorporated in 1961, the

                                                               5   Council serves as the national voice for urban educators and provides a forum to share best

                                                               6   practices. The Council is composed of school districts with enrollments greater than 35,000

                                                               7   students located in cities with a population exceeding 250,000. Districts located in the largest

                                                               8   city of any state are also eligible for membership based on urban characteristics. The Council’s

                                                               9   member districts have a combined enrollment of over 8.2 million students. Headquartered in

                                                              10   Washington, D.C., the Council promotes urban education through research, instruction,

                                                              11   management, technology, legislation, communications, and other special projects.

                                                              12          The Council and its members are deeply concerned that the U.S. Department of

                                                              13   Education’s (“Department”) recently announced interim final rule (“Rule”) regarding the




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   provision of equitable services under emergency relief funds will divert hundreds of millions of

                            Chicago, Illinois 60606
                                                              15   dollars of desperately needed funds away from their primary intended recipients, public schools

                                                              16   serving at-risk students. See CARES Act Programs; Equitable Services to Students and Teachers
                            Phone: (312) 526-1538
                                                              17   in Non-Public Schools, 85 Fed. Reg. 39,479 (July 1, 2020). Through the Coronavirus Aid,

                                                              18   Relief, and Economic Security Act (“CARES Act” or “Act”), Congress in March 2020

                                                              19   appropriated approximately $16 billion that could be used to support elementary and secondary

                                                              20   education, including $13 billion specifically to allow school districts to address needs arising out

                                                              21   of the COVID-19 pandemic. The Act expressly required those funds to be allocated pursuant to

                                                              22   well-established formulas under Title I of the Elementary and Secondary Education Act

                                                              23   (“ESEA”), 20 U.S.C. § 6301 et seq., including a requirement for school districts to reserve

                                                              24   funding to provide “equitable services” to students and teachers in private schools based on the

                                                              25   number of low-income students residing in the district and attending private schools. In disregard

                                                              26   of this clear directive, the Rule adopted by the Department would force school districts to

                                                              27   allocate funds not based on low-income private school students residing in the districts, but based

                                                              28   on all students attending private schools in the district wherever they live. The Department has
                                                                                                                    1
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                        IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
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                                                               1   unlawfully adopted an interpretation of the CARES Act equitable services requirement that is

                                                               2   directly contrary to both the plain language of the Act and to Congressional intent.

                                                               3          The Council submits this brief to underscore the outrageousness of the Department’s

                                                               4   actions and their potentially devastating impact on public school districts struggling to find ways

                                                               5   to operate safely and effectively during the COVID-19 pandemic.

                                                               6                                    SUMMARY OF ARGUMENT

                                                               7          The Department has tried to unlawfully rewrite important emergency legislation to

                                                               8   support its own spending priorities rather than those of Congress. In particular, the Department

                                                               9   seeks to divert hundreds of millions of dollars that Congress intended to support public schools

                                                              10   grappling with the pandemic, including thousands of schools in Council member districts, to

                                                              11   private schools, regardless of the financial need of private school students.

                                                              12          In the CARES Act, Congress appropriated approximately $13 billion directly for use by

                                                              13   elementary and secondary schools and directed school districts to allocate a portion of that




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   money to provide equitable services to private schools based on the number of low-income

                            Chicago, Illinois 60606
                                                              15   students residing in the district and attending private schools. While an early version of the bill

                                                              16   would have allocated funds to private schools based on their total enrollment of district resident
                            Phone: (312) 526-1538
                                                              17   students, Congress rejected that approach and instead directed that funds be allocated based on a

                                                              18   well-established Title I formula, which has been in use for many years. This made sense in part

                                                              19   because Congress already had allocated significant resources to private schools, but not to most

                                                              20   public schools, in the form of forgivable loans under the Paycheck Protection Program (“PPP”),

                                                              21   CARES Act § 1102, and also had made a variety of tax credits available to private schools but

                                                              22   not public school districts.

                                                              23          Moreover, congressional leaders on both sides of the aisle have made clear that Congress

                                                              24   intended the requirement that school districts provide “equitable services” under the CARES Act

                                                              25   to be based on low-income private school students residing in their districts and not on all private

                                                              26   school students regardless of their affluence or their residence. Likewise, the non-partisan

                                                              27   Congressional Research Service concluded this is the proper interpretation of the CARES Act.

                                                              28
                                                                                                                    2
                                                                                 THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                         IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
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                                                               1          Not only is the Department’s attempt to rewrite the CARES Act substantively wrong, it

                                                               2   has also been done in a chaotic manner that itself has been damaging to public school districts.

                                                               3   More than a month after the Act was passed, the Department first issued non-binding regulatory

                                                               4   guidance directing that equitable services should be provided to private schools based on their

                                                               5   total enrollment. See Providing Equitable Services to Students and Teachers in Non-Public

                                                               6   Schools Under the CARES Act Programs, (April 30, 2020) (“Guidance”). Many states and

                                                               7   school districts, seeing that this “interpretation” directly contradicted the language of the Act,

                                                               8   indicated that they would not follow it in making their allocations under that CARES Act. In

                                                               9   response, two months later, and more than three months after the enactment of the Act, the

                                                              10   Department, without notice and comment, adopted the Rule that effectively required the

                                                              11   immediate adoption and implementation of its “interpretation” of the CARES Act’s equitable

                                                              12   services requirement as first set forth in the Guidance. As a result, more than three months after

                                                              13   the enactment of the Act, most states and school districts have not yet been able to allocate the




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   desperately needed resources appropriated by Congress to schools.

                            Chicago, Illinois 60606
                                                              15          Even more significantly, the approach demanded by the Department will divert hundreds

                                                              16   of millions of dollars from public schools to private schools, regardless of the financial need of
                            Phone: (312) 526-1538
                                                              17   their students. The effect on Council members, their schools, and the students they serve will be

                                                              18   devastating. This money is needed to fund counselors, social workers and nurses and to purchase

                                                              19   equipment like computers, faces masks, thermometers, hand sanitizer and COVID-19 tests. The

                                                              20   need to protect the safety of students and faculty today is paramount. Moreover, many of the

                                                              21   schools in Council member districts serve disadvantaged communities where schools must

                                                              22   address the digital divide in order to equitably provide on-line educational opportunities. The

                                                              23   Department’s unlawful rewrite of the CARES Act severely undermines this critical work.

                                                              24                                          BACKGROUND

                                                              25          The CARES Act authorized the Department to create three categories of Education

                                                              26   Stabilization Funds (“ESF”) grants that would be administered through state education agencies

                                                              27   (“SEAs”). One of these, the Elementary and Secondary School Emergency Relief (“ESSER”)

                                                              28   CARES Act § 18003, provides CARES Act funds earmarked specifically for school districts.
                                                                                                                   3
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                        IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
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                                                               1   The ESSER Fund was designed to provide flexible support directly to school districts, as

                                                               2   outlined in a non-exhaustive list of broad possible uses in the CARES Act. Id. at § 18003(d).1

                                                               3          The purpose of section 18003 of the CARES Act was to provide financial support to

                                                               4   schools, students, and teachers in light of the COVID-19 pandemic. Most of this money is

                                                               5   directed to states and public school districts, but—as with other federal grants—a certain portion

                                                               6   of the funding must be used to provide equitable services to non-public school students and

                                                               7   teachers. The CARES Act, in section 18005, expressly states that the funding must be allocated

                                                               8   “in the same manner” as it is allocated in section 1117 of the ESEA, which has long been

                                                               9   commonly known as the Title I funding formula. Yet, the Department’s initial Guidance, and

                                                              10   then its Rule, both suggest and then effectively mandate a different, more generous, formula for

                                                              11   the funding of private schools with money Congress allocated for public schools.

                                                              12                                             ARGUMENT

                                                              13




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200
                                                                   I.     The Department Unlawfully Replaced the Equitable Services Allocation Method
                                                              14
                                                                          Adopted by Congress with Its Own Preferred Approach.
                            Chicago, Illinois 60606
                                                              15
                                                                          The CARES Act, as enacted, is clear that the allocation for private schools is to be based
                                                              16
                            Phone: (312) 526-1538                  on their low-income population residing in the relevant school district just like Title I equitable
                                                              17
                                                                   service calculations. Indeed, Congress did not adopt a draft bill that specifically would have
                                                              18
                                                                   provided equitable services for private school students and teachers based on total private school
                                                              19
                                                                   enrollment, as the Department’s Rule attempts to do. Moreover, Congress rejected that allocation
                                                              20
                                                                   methodology justifiably as low-income and minority communities, like those served by Title I,
                                                              21
                                                                   have been disproportionately affected by the pandemic, and because the CARES Act and other
                                                              22
                                                                   emergency legislation also provide additional resources to private schools that are not available
                                                              23
                                                                   to public school districts. Finally, there is bi-partisan and non-partisan support for the view that
                                                              24
                                                              25
                                                                   1
                                                              26      CARES Act, PL 116-136, 134 Stat 281. Because the CARES Act was codified in scattered
                                                                   titles of the United States Code, including as statutory notes, and for ease of reference, all
                                                              27   CARES Act provisions enacted in Public Law 116-136, 134 Stat. 281, are cited herein simply as
                                                                   CARES Act § ____. CARES Act sections 18003 and 18005 are codified at 20 U.S.C. § 3401
                                                              28
                                                                   note.
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                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
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                                                               1   Congress intended the allocations to be done according to the Title I formula, just like the Act

                                                               2   says.

                                                               3            A.     The Department’s funding formula erroneously considers all private school
                                                               4                   students rather than only low-income students residing in the district.
                                                               5            Allocation of CARES Act funds with respect to private schools is statutorily and
                                                               6   expressly tied to the well-established formula set forth in Title I. Under the CARES Act, school
                                                               7   districts receiving funding under the Act “shall provide equitable services in the same manner
                                                               8   as provided under section 1117 of the ESEA of 1965 to students and teachers in non-public
                                                               9   schools.” CARES Act § 18005 (emphasis added). Section 1117 of the ESEA, or Title I, requires
                                                              10   schools to provide equitable services “[t]o the extent consistent with the number of eligible
                                                              11   children . . . in the school district . . . who are enrolled in private” school. 20 U.S.C.
                                                              12   § 6320(a)(1) (emphasis added). Title I requires that “[e]xpenditures for educational services and
                                                              13




HUSCH BLACKWELL LLP
                                                                   other benefits to eligible private school children shall be equal to the proportion of funds
                      120 South Riverside Plaza, Suite 2200   14   allocated to participating school attendance areas based on the number of children from low-

                            Chicago, Illinois 60606
                                                              15   income families who attend private schools.” Id. § 6320(4)(A)(i) (emphasis added). Congress
                                                              16
                            Phone: (312) 526-1538
                                                                   and the Department have long been aware of this methodology and, as recently as October 2019,
                                                              17   the Department instructed school districts to “[e]nsure that its expenditures for equitable services
                                                              18   [under Section 1117 of Title I] are equal to the proportion of funds generated by children from
                                                              19   low-income families who reside in participating Title I public school attendance areas and attend
                                                              20   private schools.”2
                                                              21            The Department’s directive in two of the three ostensible options under its interim final
                                                              22   rule—that CARES Act funds should be provided to private schools on the basis of the number of
                                                              23   students attending private school within the school district’s boundaries, regardless of where
                                                              24   those students live, rather than on the basis of the number of low-income students residing in the
                                                              25   school district’s jurisdiction—is expressly contrary to the statute for two reasons.
                                                              26
                                                                   2
                                                                     U.S. Dep’t of Educ., Providing Equitable Services to Eligible Private School Children,
                                                              27   Teachers, and Families Updated Non-Regulatory Guidance (Oct. 7, 2019),
                                                                   https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-services-guidance-
                                                              28
                                                                   100419.pdf (emphasis added) (“October 2019 Guidance”).
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                                                                                   THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                           IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
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                                                               1                 i.       Congress expressly declined to require public school districts to

                                                               2                          allocate equitable services funding on the basis of all students in

                                                               3                          private schools rather than “eligible” or low-income students.

                                                               4          First, the use of all students rather than low-income students is not supported by the

                                                               5   legislative history of the Act. An early version of the bill would have expressly allocated funds to

                                                               6   private schools based on their total enrollment. The enacted CARES Act rejected this approach,

                                                               7   instead calling for the use of the Title I formula. Under that earlier version of the bill (as under

                                                               8   the Department’s Rule), hundreds of millions of dollars would have been diverted away from

                                                               9   public schools who truly need those funds and towards private schools who do not. Congress

                                                              10   refused to adopt this approach when it chose instead to enact a bill that specifically refers to

                                                              11   Section 1117 of the ESEA, recognizing that funds to support private schools should be based on

                                                              12   the number of low-income students, not based on all students at private schools.3

                                                              13          Specifically, an early draft of the appropriations provision of the CARES Act, received




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   by amicus curiae on March 22, 2020, included a section titled “Assistance to Non-Public

                            Chicago, Illinois 60606
                                                              15   Schools,” which provided as follows:

                                                              16          SEC. 18005. (a) IN GENERAL.— A local educational agency receiving funds
                            Phone: (312) 526-1538                         under sections 802 or 803 shall provide equitable services to students and teachers
                                                              17          in non-public schools, as determined in consultation with representatives of non-
                                                                          public schools. The level of such services shall reflect the proportion of students
                                                              18
                                                                          residing within the boundaries of the local educational agency who attend non-
                                                              19          public schools.

                                                              20   See Exhibit A, Declaration of Jeff Simering; Exhibit A-1, HEN20279 (emphasis added). This
                                                              21   language is not present in the enacted bill. Rather, the enacted CARES Act mandates that the
                                                              22   familiar Title I formula be used:
                                                              23          SEC. 18005. (a) IN GENERAL. — A local educational agency receiving funds
                                                                          under sections 18002 or 18003 of this title shall provide equitable services in the
                                                              24          same manner as provided under section 1117 of the ESEA of 1965 to students
                                                                          and teachers in non-public schools, as determined in consultation with
                                                              25
                                                                          representatives of non-public schools.
                                                              26
                                                              27   3
                                                                     Significantly, Section 8501 of the ESEA, which does, in fact, direct equitable services to all
                                                                   eligible private school students regardless of residence status, is not referenced in the CARES
                                                              28
                                                                   Act.
                                                                                                                   6
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
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                                                               1   CARES Act § 18005(a) (emphasis added). Congress knew how to write an allocation formula

                                                               2   like the one that the Department wants. Indeed, it did write one. It just chose not to enact that

                                                               3   version into law.

                                                               4          The directive to use the formula set forth in section 1117 of the ESEA—which, as

                                                               5   explained above, requires equitable services to be provided to private schools in a proportionate

                                                               6   share reflecting the number of low-income students residing within the boundaries of the school

                                                               7   district or “local educational agency” (“LEA”)—permits less money to flow to private schools

                                                               8   than would have occurred under the previous draft of the CARES Act; the proportionate share is

                                                               9   not based on all the students residing in the district’s jurisdiction or even the Title I schools’

                                                              10   attendance areas that attend private schools, but only those low-income students who do.

                                                              11          The difference between these two versions of the bill—the earlier draft basing equitable

                                                              12   services on the proportionate share of all private school students residing in the LEA and the

                                                              13   later enacted bill basing equitable services on the number of low-income students residing in




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   participating Title I attendance areas—is of critical importance. The Department’s Rule may

                            Chicago, Illinois 60606
                                                              15   track early development of the CARES Act, but entirely fails to follow its enacted provisions.

                                                              16          Moreover, there are two formulas in ESEA. In section 1117, equitable services are
                            Phone: (312) 526-1538
                                                              17   provided based on the number of low-income students. In contrast, the equitable services

                                                              18   provision in section 8501 does not require school districts to base private schools’ proportional

                                                              19   share on the number of low-income children living in the district who attend private school. See

                                                              20   20 U.S.C. § 7881(b). Again, if Congress had wanted equitable services to be provided based on

                                                              21   all students in private schools, it would have enacted the earlier-drafted formula, or referenced

                                                              22   section 8501 of ESEA which applies to part C of Title I, part A of Title II, part A of Title IV, and

                                                              23   part B of Title IV, rather than section 1117 which applies only to part A of Title I. The choice to

                                                              24   use section 1117 was clear and unambiguous.

                                                              25          In enacting the CARES Act, Congress thus declined to use a formula which would allow

                                                              26   for more money to flow through public schools to serve private schools than is allowed by the

                                                              27   longstanding method set forth in section 1117 of the ESEA. The Department’s position is not

                                                              28
                                                                                                                    7
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
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                                                               1   only contrary to the plain language of the CARES Act, but also to clear Congressional intent as

                                                               2   demonstrated by the Act’s context and legislative history.

                                                               3                ii.          Congress also required that equitable services funding be allocated on

                                                               4                             the basis of student residence.

                                                               5          Second, the Department’s position that the proportionate share is based on the number of

                                                               6   students who attend a private school that is located in the district—rather than the number of

                                                               7   low-income students residing in the district who attend a private school—impermissibly requires

                                                               8   that the proportionate share be based not on which students live in the district, but which students

                                                               9   attend private schools in the district. As with the use of all private school students in the formula

                                                              10   rather than only low-income students, the use of students who attend private school in the

                                                              11   district, regardless of where the students reside leads to more money diverted to private schools.

                                                              12   It is also plainly inconsistent with the text of the CARES Act and the ESEA.

                                                              13          This distinction matters: LEAs receive local tax revenue from persons living in their




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   district, but not from those living outside it. Under the Department’s interpretation, public

                            Chicago, Illinois 60606
                                                              15   schools are required to take money dedicated to the students who both reside in and attend

                                                              16   school in their district and allocate it instead to students who may reside elsewhere—and pay
                            Phone: (312) 526-1538
                                                              17   taxes elsewhere—but attend private schools in the district. Ignoring the residency requirement of

                                                              18   Section 1117 of the ESEA, as expressly required by the CARES Act, reflects the Department’s

                                                              19   arbitrary and unlawful interpretation.

                                                              20          Congress expressly chose to require that equitable services be provided to private schools

                                                              21   “in the same manner” as that required in Title I, or section 1117 of ESEA. The Department

                                                              22   cannot override the statutory text of the CARES Act, and its interpretation must be declared

                                                              23   arbitrary and capricious.

                                                              24          B.          There were good reasons for Congress to choose the specific allocation

                                                              25                      formula that it did.

                                                              26          First, it is well documented that the COVID-19 pandemic is disproportionately affecting

                                                              27   low-income and minority communities. As the primary source of federal support for elementary

                                                              28   and secondary education, Title I targets precisely these communities, many of whom are located
                                                                                                                      8
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
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                                                               1   in Council member districts. It also makes sense, for this same reason, to allocate resources

                                                               2   based on low-income students rather than all students and to focus on the students in private

                                                               3   schools residing in these urban areas rather than those that may be commuting to those private

                                                               4   schools from affluent suburbs. Indeed, in some Council member districts near state borders,

                                                               5   students commute from other states to attend expensive private schools. Thus, allocating

                                                               6   resources where they are most needed, which Congress did, makes sense.

                                                               7          Second, allocating these CARES Act funds to private schools based on their total

                                                               8   enrollment and thereby dramatically increasing their proportionate allocation would have been

                                                               9   unreasonable and unfair for Congress to do, because private schools are eligible for other federal

                                                              10   resources that public school districts are not. For example, the CARES Act also created the

                                                              11   Paycheck Protection Program (“PPP”), through which the Small Business Administration

                                                              12   (“SBA”) provided loans to certain small businesses, including private schools. CARES Act

                                                              13   § 1102. These loans will be fully forgiven by the SBA. CARES Act § 1106. Under the PPP, all




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   small businesses, as well as all tax-exempt non-profit organizations described in section

                            Chicago, Illinois 60606
                                                              15   501(c)(3) of the Internal Revenue Code, are eligible to receive loans. CARES Act §

                                                              16   1102(a)(2)(D).4 The 500-employee cap as well as the inclusion of Section 501(c)(3) nonprofits
                            Phone: (312) 526-1538
                                                              17   opened the door for private schools to secure PPP loans to the tune of millions of dollars. Just in

                                                              18   Council member school districts alone, over 75 private schools each received over a million

                                                              19   dollars from the PPP, with some individual schools receiving close to 10 million dollars. 5

                                                              20          Here are a few examples of such schools:6
                                                                                       School Name                             City, State          PPP Loan Range
                                                              21
                                                                       St. Ann’s School                                        NYC, NY               $5–$10 million
                                                              22       Columbia Grammar and Preparatory School                 NYC, NY               $5–$10 million

                                                              23
                                                                   4
                                                                     See also Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed.
                                                              24   Reg. 20811 (April 15, 2020) (the SBA interim final rule regarding implementation of CARES
                                                              25   Act §§ 1102, 1106).
                                                                   5
                                                                     Stephen Rich et al., Explore the SBA Data on Businesses that Received PPP Loans, THE
                                                              26   WASHINGTON POST (July 6, 2020),
                                                                   https://www.washingtonpost.com/graphics/2020/business/sba-ppp-
                                                              27   data/?utm_campaign=wp_main&utm_medium=social&utm_source=twitter&itid=lk_inline_man
                                                                   ual_5; see also Exhibit B.
                                                              28   6
                                                                     See Exhibit B (citations contained therein).
                                                                                                                  9
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
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                                                                                        School Name                            City, State           PPP Loan Range
                                                               1
                                                                       Poly Prep Country Day School                             NYC, NY               $5–$10 million
                                                               2       Albuquerque Academy                                  Albuquerque, NM            $2–$5 million
                                                                       Head-Royce School                                      Oakland, CA              $2–$5 million
                                                               3       Francis Parker School                                 San Diego, CA             $2–$5 million
                                                                       De Paul College Prep                                    Chicago, IL             $1–$2 million
                                                               4
                                                                       Cincinnati Hills Christian Academy                    Cincinnati, OH            $2-$5 million
                                                               5       Sidwell Friends School                               Washington, D.C.          $5–$10 million
                                                                       St. Louis University High School                      St. Louis, MO             $2-$5 million
                                                               6       Bishop Lynch High School                                Dallas, TX              $2–$5 million
                                                                       Antonian College Preparatory High School             San Antonio, TX            $1–$2 million
                                                               7
                                                                       Christopher Columbus High School                        Miami, FL               $2–$5 million
                                                               8       Central Catholic High School                           Portland, OR             $2–$5 million

                                                               9          In addition to the benefit of these substantial sums in forgivable loans, private schools are

                                                              10   also eligible for tax credits that are not available to public school districts. For example, private

                                                              11   schools benefit from payroll tax credits under the Families First Coronavirus Response Act (the

                                                              12   “FFCRA”), signed by President Trump on March 18, 2020. PL 116-127, March 18, 2020, 134

                                                              13   Stat 178, Division G, §§ 7001–7005. The FFCRA provides small and midsize employers




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   refundable tax credits that reimburse them, dollar-for-dollar, for the cost of providing paid sick

                            Chicago, Illinois 60606
                                                              15   and family leave wages to their employees for leave related to COVID-19. Id. §§ 7001 (“Payroll

                                                              16   Credit for Required Paid Sick Leave”), 7003 (“Payroll Credit for Required Paid Family Leave”).
                            Phone: (312) 526-1538
                                                              17   Similarly, private schools, but not public school districts, also benefit from the Employee

                                                              18   Retention Credit, which is a refundable tax credit against certain employment taxes equal to 50

                                                              19   percent of the qualified wages an eligible employer pays to employees after March 12, 2020, and

                                                              20   before January 1, 2021. CARES Act, § 2301. Eligible employers can get immediate access to the

                                                              21   credit by reducing employment tax deposits they are otherwise required to make. Id. For each

                                                              22   employee, wages (including certain health plan costs) up to $10,000 can be counted to determine

                                                              23   the amount of the 50% credit. Id. § 2301(a)(b)(1). Congress clearly has provided many

                                                              24   significant COVID-19-related financial benefits to private schools that it has not provided to

                                                              25   public school districts.

                                                              26          Thus, for at least two obvious reasons, it made sense for Congress to reject a bill that

                                                              27   would have allocated CARES Act resources to private schools based on their total enrollment

                                                              28   and to instead mandate the Title I allocation methodology. In contrast, the Rule adopted by the

                                                                                                                    10
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                                                               1   Department is not only unlawful (as discussed above in section I.A.) but also unfair and

                                                               2   unreasonable (as discussed further below in sections II and III).

                                                               3          C.      There is bi-partisan support that Congress’s intent was that funds be

                                                               4                  allocated based on the Title I formula.

                                                               5          Even if in some manner the relevant text of the CARES Act were ambiguous—which it is

                                                               6   not—and the legislative history were unpersuasive—which it is not—the drafters of the bill

                                                               7   themselves have clearly indicated that it was their intent in drafting and passing the bill that

                                                               8   equitable services be provided to private schools using the Title I funding formula.

                                                               9          For example, on May 20, 2020, three Democratic congressional leaders—Representative

                                                              10   Bobby Scott, Representative Rosa DeLauro, and Senator Patty Murray—wrote to Secretary

                                                              11   DeVos, stating:

                                                              12          [T]he Department broke with statutory requirements of the CARES Act and
                                                                          longstanding precedent of the equitable services provision in section 1117 of
                                                              13




HUSCH BLACKWELL LLP
                                                                          ESEA by issuing guidance that directs LEAs to use emergency relief funds for the
                      120 South Riverside Plaza, Suite 2200   14          provision of services to students at private schools regardless of their wealth or
                                                                          residence. This action also contradicts the Department’s equitable services non-
                            Chicago, Illinois 60606
                                                              15          regulatory guidance issued on October 7, 2019.
                                                              16   Exhibit C.7 The members, all of whom are Congressional committee chairs or ranking members
                            Phone: (312) 526-1538
                                                              17   on committees specific to education and/or appropriations, went on to say, “[t]he statutory

                                                              18   language and Congressional intent is clear: LEAs should use these emergency relief funds to

                                                              19   provide equitable services only based on the number of low-income students attending private

                                                              20   schools in their LEA, not all students attending private schools in the LEA.” Id. This

                                                              21   Congressional intent was confirmed by senior Republican Senator Lamar Alexander, chairman

                                                              22   of the Senate Committee on Health, Education, Labor, and Pensions and former U.S. Secretary

                                                              23   of Education, the next day. On May 21, 2020, Senator Alexander was asked about the

                                                              24
                                                              25
                                                                   7
                                                              26     Letter from Robert C. “Bobby” Scott, Rosa L. DeLauro, and Patty Murray, U.S. Congress, to
                                                                   Betsy DeVos, Sec’y, U.S. Dep’t of Educ. (May 20, 2020) (available at
                                                              27   https://edlabor.house.gov/imo/media/doc/2020-5-
                                                                   z0%20Ltr%20to%20DeVos%20re%20Equitable%20Services.pdf and attached hereto at Exhibit
                                                              28
                                                                   C).
                                                                                                                11
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
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                                                               1   Department’s Guidance, and said, “I thought, and I think most of Congress thought, that money

                                                               2   from the CARES Act would be distributed in the same way that Title I is distributed.” 8

                                                               3          Moreover, the non-partisan Congressional Research Service (“CRS”) undertook an

                                                               4   extensive analysis of the text of the CARES Act and its legislative history and concluded that “a

                                                               5   straightforward reading of section 18005(a) based on its text and context suggest that the CARES

                                                               6   Act requires LEAs [school districts] to follow section 1117’s method for determining the

                                                               7   proportional share, and thus to allocate funding for services for private school students and

                                                               8   teachers based on the number of low income children attending private schools.” Memorandum

                                                               9   from Congressional Research Service to House Comm. on Educ. and Labor 2 (July 1, 2020)

                                                              10   (attached hereto as Exhibit D). The CRS further concluded that the relevant number for this

                                                              11   calculation is the “number of private-school children from low-income families residing in the

                                                              12   LEA’s participating public school attendance areas.” Id. at 3.

                                                              13          Thus, Congress clearly intended that the funds provided to school districts under the




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   CARES Act be proportionately shared with private schools based on the number of low-income

                            Chicago, Illinois 60606
                                                              15   students residing in the school district’s Title I school attendance areas. This clear

                                                              16   Congressional intent, supported by the statutory text itself as well its context and legislative
                            Phone: (312) 526-1538
                                                              17   history, is controlling. The Department does not have any authority to depart from that clear

                                                              18   intent or to rewrite the plain language of the Act.

                                                              19   II.    The Chaotic Manner in which the Department has Acted Has Delayed the

                                                              20          Distribution of Critical Resources and Placed School Districts in Legal Jeopardy.

                                                              21          Besides being an unlawful abuse of agency authority resulting in significant harms—

                                                              22   including the potential deprivation of hundreds of millions of dollars of much-needed funds for

                                                              23   our nation’s most vulnerable students, as detailed in Section III below—the Department’s

                                                              24   arbitrary and ad hoc actions also have led to considerable confusion that has delayed the

                                                              25   distribution of critical resources. The Department’s interpretation of the Act has constantly

                                                              26
                                                              27   8
                                                                    Andrew Ujifusa, Sen. Alexander Splits from Betsy DeVos on COVID-19 Aid to Help Private
                                                                   Schools, EDUCATION WEEK (May 21, 2020), https://blogs.edweek.org/edweek/campaign-k-
                                                              28
                                                                   12/2020/05/alexander-devos-COVID-aid-private-schools-CDC-reopening.html.
                                                                                                              12
                                                                                 THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
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                                                               1   shifted since its enactment. For example, the Rule issued on July 1, 2020 contains new

                                                               2   substantive requirements that differ both from those in the Act (enacted in March), the

                                                               3   Department’s initial notice, the Department’s April 30, 2020 Guidance. Moreover, by virtue of

                                                               4   its interim nature, the Rule also creates the possibility for yet additional changes in the

                                                               5   Department’s policy after the 30-day comment period. Throughout this period of uncertainty,

                                                               6   however, the Department has consistently done one thing: presented school districts with an

                                                               7   impossible choice between compliance with its current “interpretation” or with the actual terms

                                                               8   of the Act. If school districts do the former, they forfeit hundreds of millions of dollars to private

                                                               9   schools and also run the risk of violating certifications that they will follow the allocation

                                                              10   requirements of the Act. If they do the latter, they risk penalties from the Department. The

                                                              11   Department’s actions over the last four months thus have created an untenable situation.

                                                              12            A.      The Guidance created unnecessary confusion for school districts and put

                                                              13                    them at legal risk.




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14            Congress passed the CARES Act on March 27, 2020. Section 18002(a) of the Act

                            Chicago, Illinois 60606
                                                              15   mandated: “[T]he Secretary shall make Emergency Education Relief grants to the Governor of

                                                              16   each State with an approved application”; “shall issue a notice inviting applications not later than
                            Phone: (312) 526-1538
                                                              17   30 days of enactment of this Act”; and “shall approve or deny applications not later than 30 days

                                                              18   after receipt.” CARES Act § 18002(a) (emphasis added).

                                                              19            Accordingly, on April 23, 2020, the Department published a notice which included a

                                                              20   “Deadline for Transmittal of Certification and Agreement” of “[n]o later than July 1, 2020.” See

                                                              21   U.S. Dep’t of Educ., Notice Announcing Availability of Funds and Deadline for the Elementary

                                                              22   and Secondary School Emergency Relief Fund at 2 (April 23, 2020)9 (the “Notice”). The Notice

                                                              23   also indicated that “[e]ach SEA’s Certification and Agreement will be processed as it is received

                                                              24   and funds will be obligated on a rolling, expedited basis with the expectation that State

                                                              25   educational agencies (SEAs) and local educational agencies (LEAs) will also use every effort to

                                                              26   expend the funds quickly to address exigent student needs.” Id. The Notice emphasized the

                                                              27
                                                              28   9
                                                                       Available at https://oese.ed.gov/files/2020/04/ESSER-Fund-Notice-Final.pdf.
                                                                                                                      13
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                                                               1   urgency of applying for and utilizing the emergency funding to address challenges of educating

                                                               2   students in a remote learning environment, stating:

                                                               3             Consistent with section 18003(d) of the CARES Act, LEAs may use ESSER
                                                                             funds to address the impact that COVID19 has had, and continues to have, on
                                                               4
                                                                             elementary and secondary schools across the Nation. The Department encourages
                                                               5             SEAs that use funds for remote learning to make strategic investments that
                                                                             promote student achievement through long-term improvements in infrastructure
                                                               6             and operations so that students may receive educational services whether or not
                                                                             school campuses are open or closed.
                                                               7
                                                                   Id. at 4. With respect to equitable services, the Notice restated the text of section 18005(a),
                                                               8
                                                                   without any indication that it would be deviating from the approach recently reaffirmed 10 in its
                                                               9
                                                                   2019 Title I equitable services guidance. See Id. at 6 (“An SEA must ensure that an LEA that
                                                              10
                                                                   receives an ESSER Fund subgrant provides equitable services to students and teachers in non-
                                                              11
                                                                   public schools located within the LEA in the same manner as provided under section 1117 of
                                                              12
                                                                   the ESEA . . . .”) (emphasis added).11
                                                              13




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200
                                                                             Consistent with the Act, the Notice included “Certification and Agreement” instructions,
                                                              14
                                                                   requiring each applicant to “provide an assurance that it will comply with all requirements that
                            Chicago, Illinois 60606
                                                              15
                                                                   apply to the ESSER Fund,” including the statute’s equitable services provision. Relevant here,
                                                              16
                            Phone: (312) 526-1538                  the certification form required applicants for CARES Act funds to:
                                                              17
                                                              18             “allocate [ESSER] funds to LEAs on the basis of their respective shares of funds
                                                                              received under title I, part A of the Elementary and Secondary Education Act of 1965 in
                                                              19              fiscal year 2019”;

                                                              20             “ensure that LEAs receiving ESSER funds will provide equitable services to students
                                                                              and teachers in non-public schools as required under 18005 of Division B of the CARES
                                                              21              Act”; and
                                                              22
                                                                             “ensure that an LEA receiving ESSER funds will provide equitable services to
                                                              23              students and teachers in non-public schools located within the LEA in the same

                                                              24
                                                              25   10
                                                                      See October 2019 Guidance, supra n. 2.
                                                                   11
                                                              26      Although the equitable services provision of the Notice indicated that, “[t]he Department will
                                                                   provide additional guidance to LEAs on equitable services requirements,” id., no reasonable state
                                                              27   or school district could have predicted the Department’s arbitrary conditions imposed on the
                                                                   provision of ESSSER funds first in the Guidance on April 30 and then in the Rule issued on July
                                                              28
                                                                   1.
                                                                                                                  14
                                                                                    THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
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                                                                           manner as provided under section 1117 of the ESEA, as determined through timely and
                                                               1           meaningful consultation with representatives of non-public schools.” 12
                                                               2
                                                                           Thus, as of April 23, 2020, school districts and states were led to believe by the plain
                                                               3
                                                                   language of the Act and by the form released by the Department that equitable services
                                                               4
                                                                   allocations under the CARES Act would employ the Title I methodology. Initial planning
                                                               5
                                                                   proceeded based on that understanding and many states and school districts, including Council
                                                               6
                                                                   members, executed certifications that they would comply. It was not until the non-binding
                                                               7
                                                                   Guidance was issued on April 30, 2020 (more than a month after the Act was enacted) that
                                                               8
                                                                   school districts had any idea the Department might encourage a different approach.
                                                               9
                                                                           As a result, school districts face legal risk if they fail to follow the allocation method set
                                                              10
                                                                   forth in the Act, as they have certified that they will. On the other hand, if they follow the Act
                                                              11
                                                                   and not Department’s “interpretation” as originally announced in the Guidance, they face
                                                              12
                                                                   potential penalties from the Department and possible challenges from private schools based on
                                                              13




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200
                                                                   the Department’s position. Either way, the Department has put school districts in an impossible
                                                              14
                                                                   situation.
                            Chicago, Illinois 60606
                                                              15
                                                                           B.     The Rule effectively mandates the Department’s flawed interpretation and
                                                              16
                            Phone: (312) 526-1538                                 increases confusion and hardship for school districts.
                                                              17
                                                                           Recognizing the significant hardships the Guidance imposed on school districts, multiple
                                                              18
                                                                   educational associations, spearheaded by the Council of Chief State School Officers (“CCSSO”),
                                                              19
                                                                   alerted the Department of its flawed interpretation of the CARES Act and put the Department on
                                                              20
                                                                   notice of the significant confusion and harm the Guidance was causing for both states and school
                                                              21
                                                                   districts. See Letter from Carissa Moffat Miller, Exec. Dir., CCSSO, to Betsy DeVos, Sec'y, U.S.
                                                              22
                                                                   Dep't of Educ. (May 5, 2020).13 Rather than mitigate the damage already done by withdrawing
                                                              23
                                                                   and/or amending the Guidance, the Department doubled down, accusing the CCSSO of
                                                              24
                                                              25
                                                                   12
                                                              26       U.S. Dep’t of Educ., Certification and Agreement for Funding under the Education
                                                                   Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund (ESSER
                                                              27   Fund) at 2–3 (April 2020), https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-
                                                                   Agreement-2.pdf.
                                                              28   13
                                                                      Available at https://ccsso.org/sites/default/files/2020-05/DeVosESLetter050520.pdf.
                                                                                                                      15
                                                                                 THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                         IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                           Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 21 of 92




                                                               1   “improperly discriminat[ing] against an entire class of children,” despite the fact that Congress,

                                                               2   not the CCSSO, had selected the allocation formula. 14

                                                               3          Therefore, many states and school districts subsequently decided to follow the statute and

                                                               4   to expressly reject the approach outlined in the Guidance. According to one report, 15 a number of

                                                               5   states led by both Republican and Democratic governors rejected the Department’s

                                                               6   interpretation. For example, Oklahoma, Mississippi, Indiana, Maine, Washington, Pennsylvania,

                                                               7   New Mexico and Wisconsin, all began calculating allocations according to the plain text of the

                                                               8   statute. New Mexico, for example, in a letter from its Public Education Department to

                                                               9   superintendents and charter school heads stated it would follow the plain language of the CARES

                                                              10   Act stating “[t]his advisory aligns with the plain language of the CARE Act and is consistent

                                                              11   with longstanding equitable services calculations under Title I criteria, as well as U.S.

                                                              12   Department of Education’s interpretations of the [ESEA] over decades and as recently as

                                                              13   October 2019.” Mem. from State of New Mexico Public Educ. Dep’t 5 (May 14, 2020) (attached




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   hereto as Exhibit E).

                            Chicago, Illinois 60606
                                                              15          In early June, ten states indicated they would or were likely to follow the Department’s

                                                              16   guidance.16 States such as Colorado, Illinois and Ohio have followed the Department’s
                            Phone: (312) 526-1538
                                                              17   cautionary directive in its letter response to CCSSO17 and advised school districts to calculate the

                                                              18
                                                              19
                                                                   14
                                                                      See Letter from Betsy DeVos, Sec'y, U.S. Dep't of Educ., to Carissa Moffat Miller, Exec. Dir.,
                                                              20   CCSSO            (May         22,        2020)        (hereinafter         “DeVos          Letter”)
                                                              21   https://blogs.edweek.org/edweek/campaign-k-
                                                                   12/Secretary%20DeVos%20Response%20to%20Carrisa%20Moffat%20Miller%205%2022%20
                                                              22   20.pdf; see also Andrew Ujifusa, DeVos to Release Rule Cementing COVID Aid Push for Private
                                                                   School Students, EDUCATION WEEK (May 26, 2020), https://blogs.edweek.org/edweek/campaign-
                                                              23   k-12/2020/05/devoscovid-aid-private-school-students-rule.html)
                                                                   15
                                                                       See Bianca Quilantan, Weekly Education: States Push Back Against Steering Coronavirus
                                                              24   Funds         to       Private       Schools,       POLITICO          (June        1,        2020),
                                                              25   https://www.politico.com/newsletters/morning-education/2020/06/01/meet-acts-new-top-
                                                                   executive-788066.
                                                                   16
                                                              26      Id.
                                                                   17
                                                                      See DeVos Letter, supra n. 13, at 1 (“If they or their district superintendents insist on acting
                                                              27   contrary to the Department’s stated position, they should, at minimum, put into an escrow
                                                                   account the difference between the amount generated by the proportional-student enrollment
                                                              28
                                                                   formula and the Title I, Part A formula.”).
                                                                                                                  16
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                        IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                             Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 22 of 92




                                                               1   equitable share based on students in poverty, but to set aside the difference in funding in an

                                                               2   escrow account.18 Other states remained unsure and are still waiting to see what happens.

                                                               3             In response, however, more than three months after the CARES Act was enacted, the

                                                               4   Department concluded its Guidance was inadequate and it adopted the Rule. On July 1, 2020, the

                                                               5   Department published the Rule in the Federal Register without notice and comment and made it

                                                               6   effective immediately. 85 Fed. Reg. 39,479. In so doing, the Department added yet another layer

                                                               7   of confusion and complexity to Congress’s simple mandate to “make Emergency Education

                                                               8   Relief grants to the Governor of each State with an approved application.” See CARES Act §

                                                               9   18002(a).

                                                              10             Indeed, instead of merely codifying the already flawed and inequitable approach

                                                              11   suggested by the Guidance, the Rule effectively created two ostensible choices for school

                                                              12   districts with respect to how to calculate the proportional share of CARES Act funds for

                                                              13   equitable services. However, neither of these “choices” is viable. Rather, both choices are




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   effectively “poison pills,” as explained in detail in the Plaintiffs’ brief. See Dkt. 25-3 at 7:27–

                            Chicago, Illinois 60606
                                                              15   8:28. Under the Rule, school districts can either (1) follow the Department’s preferred approach,

                                                              16   in violation of the Act, and forfeit a substantial share of their funds for the benefit of private
                            Phone: (312) 526-1538
                                                              17   schools, but maintain their congressionally-granted discretion with respect to how to spend the

                                                              18   remaining funds; or (2) maintain the full funding intended for public schools under the CARES

                                                              19   Act, but give up the ability to serve all of their students and adhere to severe restrictions on how

                                                              20   the money can be spent.

                                                              21             Neither option is allowed by the Act, as discussed above, and neither one is workable for

                                                              22   school districts. First, the funds allocated are desperately needed by school districts trying to

                                                              23   reopen during the pandemic. COVID-19 has drastically affected public education in the United

                                                              24   States. School districts across the nation were ordered to close and transition to online learning in

                                                              25   the spring, incurring significant additional expenses to ensure all students (particularly low-

                                                              26   income students like many of those served by Council members) had adequate access to

                                                              27   necessary technology. Since then, states throughout the country have faced declining revenue

                                                              28   18
                                                                        Quilantan, supra n. 14.
                                                                                                                    17
                                                                                   THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                           IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                             Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 23 of 92




                                                               1   and corresponding budget cuts, including billions of dollars in reduction to funding for public

                                                               2   education. These cuts come at the same time when the additional costs of re-opening schools

                                                               3   safely, according to protocols recommended by the Center for Disease Control (“CDC”), are

                                                               4   estimated by the CCSSO to amount to somewhere between $158 and $245 billion. 19 School

                                                               5   districts cannot afford to lose any resources at this time.

                                                               6             Similarly, it is impractical for school districts, including Council members, to give up

                                                               7   their ability under the CARES Act to use these funds with flexibility in any school in which they

                                                               8   are needed. Some of the emergency funds authorized by Congress are desperately needed

                                                               9   precisely to make up for lost state and local revenue, an approach complicated if not made

                                                              10   unworkable by the Rule, particularly if a school district follows the Act’s allocation method

                                                              11   rather than the Department’s. Likewise, as discussed in Section III below, resources to open

                                                              12   schools safely like personal protective equipment for schools opening for in-person instruction or

                                                              13   technology to support online instruction are needed at all schools and not only Title I schools,




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   but the Rule would restrict districts from using the funds in this manner, unless they adopt the

                            Chicago, Illinois 60606
                                                              15   Department’s allocation method. As a result, the Rule does not give school districts any actual

                                                              16   choice.
                            Phone: (312) 526-1538
                                                              17             The Rule also increases the legal pressure on school districts because it purports to be

                                                              18   legally binding, even though it directly contradicts the Act. And, to make matters worse, as an

                                                              19   interim rule, the Rule itself is subject to further modification by the Department. In sum, the Rule

                                                              20   exacerbates the problems for school districts caused by the Guidance and further underscores the

                                                              21   arbitrary nature of the Department’s approach to equitable services under the CARES Act.

                                                              22             C.     The Department’s inconsistent interpretation also has resulted in delay in the

                                                              23                    distribution of critical resources.

                                                              24             In addition to causing unnecessary confusion and uncertainty regarding an otherwise

                                                              25   clear and unambiguous statutory entitlement, the Department’s unclear and shifting “guidance”

                                                              26
                                                              27
                                                                   19
                                                                     Letter from Carissa Miller, Exec. Dir., CCSSO, to Lamar Alexander, U.S. Congress (June 24,
                                                              28
                                                                   2020) (available at https://ccsso.org/sites/default/files/2020-06/HELPLetterFinal.pdf).
                                                                                                                     18
                                                                                 THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                         IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                           Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 24 of 92




                                                               1   has resulted in unacceptable delay in school districts’ ability to apply for and access these much-

                                                               2   needed resources.

                                                               3          First, because of the changing interpretations and the introduction of entirely new

                                                               4   formulas for calculating the proportionate share under the Guidance and then the Rule, there is

                                                               5   little to no consensus or clarity regarding the actual dollar amounts available for school districts

                                                               6   to rely on in order to plan appropriately for their use. Because of the Department’s actions, the

                                                               7   academic (and fiscal) year during which the pandemic first began disrupting delivery of in-

                                                               8   person education and other operations has now expired without school districts having access to

                                                               9   congressionally-appropriated emergency funds to cover expenditures back to March. In addition,

                                                              10   with each new interpretation, school districts have been required to re-analyze and re-assess

                                                              11   current budgets, undermining school administrators’ ability to focus on the real emergencies at

                                                              12   hand: initially, the continuation of high-quality education with schools closed and, now, the safe

                                                              13   return of students and teachers to schools (if possible) in the midst of a global pandemic.




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14          Second, under the CARES Act, as under Title I, school districts must engage in a

                            Chicago, Illinois 60606
                                                              15   consultation process with private schools in order to provide appropriate services to students in

                                                              16   those private schools.20 With each new interpretation from the Department, school districts have
                            Phone: (312) 526-1538
                                                              17   had to delay, restart, or repeat this consultation process, which has harmed not only students in

                                                              18   public school districts, but also disadvantaged students in private schools who should be

                                                              19   benefitting from these resources. In some states, like Texas, state educational authorities have

                                                              20   gone so far as to expressly require school districts to restart a consultation requirement based on

                                                              21   the Department’s July 1 Rule.21 As mandated by the Act, it is critical for school districts to

                                                              22
                                                                   20
                                                                      See CARES Act § 18005(a) (requiring LEAs to provide equitable services “in consultation
                                                              23   with representatives of non-public schools”); see also Notice, supra note n.7, at 6 (“An SEA
                                                                   must ensure that an LEA that receives an ESSER Fund subgrant provides equitable services to
                                                              24   students and teachers in non-public schools located within the LEA in the same manner as
                                                              25   provided under section 1117 of the ESEA, as determined through timely and meaningful
                                                                   consultation with representatives of non-public schools.”) (emphasis added).
                                                                   21
                                                              26      See Texas Educ. Agency, Providing Equitable Services to Students and Teachers in
                                                                   Participating Private Non-Profit Schools Under the CARES Act Programs 3 (updated July 9,
                                                              27   2020), https://tea.texas.gov/sites/default/files/covid/COVID-19-CARES-Act-Equitable-Services-
                                                                   FAQ.pdf (“If consultation has already been completed and the district is changing the calculation
                                                              28
                                                                   option, the consultation process must be reopened. The revised consultation process must be
                                                                                                                     19
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                        IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                            Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 25 of 92




                                                               1   engage in a meaningful consultation process with private school representatives to ensure that

                                                               2   the funds are utilized in an effective way.

                                                               3           The Department’s chaotic deployment of its preferred policy position through the

                                                               4   Guidance and then the Rule has unnecessarily delayed that process to the detriment of school

                                                               5   districts and private schools nationwide.

                                                               6   III.    The Interim Final Rule Adopted by the Department Would Divert Hundreds of

                                                               7           Millions of Dollars from Public Schools to Private Schools with Devastating

                                                               8           Consequences for School Districts and their Students.

                                                               9           If the approach to CARES Act equitable services allocations suggested in the Guidance

                                                              10   and mandated by the Rule is allowed to stand, it would divert hundreds of millions of dollars

                                                              11   away from public school districts that are already facing massive budget cuts and exacerbate the

                                                              12   challenges of operating safely and effectively during an ongoing global pandemic. The

                                                              13   consequences of this diversion would be devastating for students and teachers nationwide,




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   including the millions in Council member districts.

                            Chicago, Illinois 60606
                                                              15           A.     The Amount of Funds Diverted is Substantial.

                                                              16           The approach towards equitable service allocations suggested and then mandated by the
                            Phone: (312) 526-1538
                                                              17   Department would dramatically increase the percentage of the funds appropriated by Congress

                                                              18   under the CARES Act to support elementary and secondary education that flow to private

                                                              19   schools, regardless of the number of low-income students they serve. For example, the

                                                              20   proportion of CARES Act allocations going to private schools would increase in member

                                                              21   districts polled by the Council, in one district by as much at 1280%. See Exhibit. F, Declaration

                                                              22   of Manish Naik; Exhibit F-1. The diversion of funds to private schools, regardless of need,

                                                              23   would dramatically reduce the funds available to public school districts like members of the

                                                              24   Council. In polling its members this week, the Council received 16 reliable responses which

                                                              25   indicated that the dollar amount lost to private schools in these districts would range from about

                                                              26   $628,000 to $6,485,000. See Exhibit F ¶¶ 3-6; Exhibit F-1. The total amount lost by these

                                                              27
                                                                   documented. TEA recommends extending consultation timeline to ensure the new requirements
                                                              28
                                                                   are discussed with private school officials.”).
                                                                                                                   20
                                                                                  THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                          IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                           Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 26 of 92




                                                               1   districts would be approximately $33,337,000. Id. Three other Council members, the New York

                                                               2   City Department of Education, the Chicago Public Schools, and the San Francisco Unified

                                                               3   School District, all of whom are Plaintiffs in this case, disclosed in written testimony that they

                                                               4   would lose about $53,000,000, $10,170,000, and $1,740,000 respectively. See Exhibit F ¶¶ 7, 9

                                                               5   (citing Dkt. 35-2, Declarations of Lindsey Oates, Dr. Janice K. Jackson and Meaghan Wallace).

                                                               6   If the amount of CARES Act funding lost through the Department’s approach was similar in

                                                               7   other school districts relative to their total low-income population, the Council projects that its

                                                               8   member districts would lose a total of about $292,000,000 of these much-needed, emergency

                                                               9   resources. Id. ¶ 11.

                                                              10          Moreover, the Council’s 76 members, though relatively large in size are just a small

                                                              11   fraction of the public school districts in the United States. An analysis of the effect of the

                                                              12   Department’s approach on the 185 school districts in Texas alone, for example, indicates that

                                                              13   those districts would collectively lose about $38 million in CARES Act funds. 22




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14          The allocation method effectively mandated by the Rule would also divert resources from

                            Chicago, Illinois 60606
                                                              15   private schools that serve a large number of low-income students. In Cleveland, for example,

                                                              16   where a large number of low-income students attend private schools because of Ohio’s voucher
                            Phone: (312) 526-1538
                                                              17   program, Council member the Cleveland Metropolitan School District (“CMSD”) estimates that

                                                              18   most private schools will lose money under the Department’s methodology, favoring a select few

                                                              19   who serve few low-income students. Id. ¶¶ 13-14. Overall the cumulative effect of the allocating

                                                              20   funds for equitable services based on total enrollment in Cleveland’s private schools would be to

                                                              21   divert about $822,952 away from CMSD’s public schools, reallocate approximately $890,000

                                                              22   away from 47 non-public schools with high poverty, and redirect approximately $1.7 million to

                                                              23   16 private schools with low numbers of high poverty students. Id. ¶¶ 14-15.

                                                              24          The overall effect of the Department’s approach is thus to divert hundreds of millions of

                                                              25   dollars of critically needed funds away from public school districts serving low-income

                                                              26
                                                                   22
                                                                     Morgan Craven and Roy L. Johnson, An Analysis of How the Department of Education’s
                                                              27   Equitable Services Rule Will Harm Texas Students and School Districts, IDRA ISSUE BRIEF (July
                                                                   16, 2020), https://www.idra.org/wp-content/uploads/2020/07/Cutting-Public-School-Relief-
                                                              28
                                                                   Funds-to-Subsidize-Private-Schools-IDRA-Issue-Brief-July-16-2020.pdf (“IDRA Issue Brief”).
                                                                                                                 21
                                                                                 THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                         IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                            Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 27 of 92




                                                               1   communities and millions more away from private schools serving high percentages of low-

                                                               2   income students. This is not how Congress wanted to support educators’ efforts to address the

                                                               3   pandemic.

                                                               4           B.     The Diversion would Deprive Millions of Public School Students of Critical

                                                               5                  Resources and Life-Saving Services during the Pandemic.

                                                               6           The diversion of these substantial funds away from school districts is depriving millions

                                                               7   of students of exactly the resources these funds were supposed to support. The funds made

                                                               8   available through the CARES Act were intended, once allocated, to be used for purposes such as

                                                               9   purchasing sanitization and cleaning supplies, purchasing personal protective equipment for

                                                              10   teachers and students, and planning for and coordinating long-term closures including by

                                                              11   providing portable meals and technology services. These are critical resources necessary during

                                                              12   this pandemic that are being deprived from millions of students in Council member districts.

                                                              13           The Council polled its member districts and asked them to list the consequences of the




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14   losses suffered due to the diversion of significant funds away from public schools and into the

                            Chicago, Illinois 60606
                                                              15   hands of private schools. Exhibit F, ¶¶ 3-4. Here are five salient examples:

                                                              16
                            Phone: (312) 526-1538
                                                                          Broward County Public Schools: Because $540,000 has been diverted to private school
                                                              17
                                                                           funding, the District was not able meet the technology needs of schools as they
                                                              18
                                                                           transitioned to a virtual environment. It also had to reduce funds for professional
                                                              19
                                                                           development and instructional materials.
                                                              20
                                                              21          Baltimore City Public Schools: If the District must provide the additional $2,419,639 to

                                                              22           private schools this will reduce the number of students that can receive a Chromebook to
                                                              23           support distance learning by 6,050. Alternatively, the District would have to reduce the
                                                              24
                                                                           number of students that can be provided a semester of tutoring by 3,252.
                                                              25
                                                                          Charleston County School District: This District was not able to provide the childcare
                                                              26
                                                                           services that the district’s teachers needed to support online instruction. It also will not be
                                                              27
                                                              28
                                                                                                                     22
                                                                                  THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                          IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                            Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 28 of 92




                                                                           able to purchase sufficient PPE to support reopening. In addition, it will struggle to
                                                               1
                                                               2           provide Wi-Fi devices for students living in areas with limited internet capability.

                                                               3          District of Columbia Public Schools: The $1.8M this District will lose could purchase
                                                               4           2,100 additional laptop devices for low-income students to support their virtual learning.
                                                               5
                                                                           $400,000 could provide mentoring and tutoring services for 400 at-risk students. $1.2M
                                                               6
                                                                           could purchase internet connectivity for one year for 5,000 low-income students.
                                                               7
                                                                          Portland Public Schools: This District would need to cut more than $628,000 from
                                                               8
                                                               9           needed Chromebooks, safety supplies and materials, and other resources as well.

                                                              10
                                                                           The analysis of Texas school districts discussed earlier shows a similar impact across the
                                                              11
                                                                   school districts in that state. The study concludes that the $38 million lost by those districts could
                                                              12
                                                                   “have been used to fund hundreds of counselors, social workers and nurses and to purchase
                                                              13




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200
                                                                   equipment like facemasks and hand sanitizer. It could have been used to support remote learning
                                                              14
                                                                   and other critical services for students and teachers.” IDRA Issue Brief at 1.
                            Chicago, Illinois 60606
                                                              15
                                                                           As positive COVID-19 test results rise throughout numerous places in the country, school
                                                              16
                            Phone: (312) 526-1538                  districts are faced with an impossible choice made even more difficult by this diversion of funds:
                                                              17
                                                                   do we start school in-person without enough face masks and personal protective equipment or do
                                                              18
                                                                   we start school remotely when often large portions of the student body have neither internet
                                                              19
                                                                   connectivity or laptop devices to allow them to work remotely? This dilemma was intended to be
                                                              20
                                                                   at least partially alleviated by the availability of CARES Act funds. Instead, the Department’s
                                                              21
                                                                   unlawful Guidance and Rule exacerbate the problem by depriving public schools of necessary
                                                              22
                                                                   funds. If the language of the CARES Act itself is properly followed, then Council member
                                                              23
                                                                   districts would have significantly more funds available to help address current conditions by
                                                              24
                                                                   providing resources necessary for safe in-person instruction and/or equitable remote learning.
                                                              25
                                                                           The challenges facing public school districts today are real and the potential
                                                              26
                                                                   consequences are grave. School districts are addressing unprecedented issues with scarce
                                                              27
                                                                   resources. The Department’s attempt to divert hundreds of millions of dollars should not be
                                                              28
                                                                                                                    23
                                                                                  THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                          IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                           Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 29 of 92




                                                               1   allowed to make these difficult tasks even more challenging. The funds these districts stand to

                                                               2   lose under the Department’s arbitrary interpretation, if freed up by this Court’s injunction, would

                                                               3   allow them better to address the challenges of the COVID-19 pandemic, as Congress intended.

                                                               4                                           CONCLUSION

                                                               5          For all of these reasons, the Council of the Great City Schools respectfully suggests that

                                                               6   Plaintiffs’ motion for preliminary injunction should be granted.

                                                               7
                                                               8   Dated: July 24, 2020                                 Respectfully submitted,

                                                               9                                                        HUSCH BLACKWELL LLP

                                                              10                                                        /s/ Donald J. Mizerk
                                                              11                                                        Donald J. Mizerk (CA Bar No. 208477)
                                                                                                                        John W. Borkowski (IL Bar No. 6320147)
                                                              12                                                        Mary Deweese (IL Bar No. 6326512)
                                                                                                                        Pro hac vice motions pending
                                                              13                                                        120 South Riverside Plaza, Suite 2200




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200
                                                                                                                        Chicago, Illinois 60606
                                                              14
                                                                                                                        Phone: (312) 526-1538
                            Chicago, Illinois 60606
                                                              15                                                        Fax: (312) 655-1501
                                                                                                                        don.mizerk@huschblackwell.com
                                                              16                                                        john.borkowski@huschblackwell.com
                            Phone: (312) 526-1538                                                                       mary.deweese@huschblackwell.com
                                                              17
                                                              18
                                                                                                                        Paige Duggins-Clay (TX Bar No. 24105825)
                                                              19                                                        Pro hac vice motion pending
                                                                                                                        111 Congress Avenue, Suite 1400
                                                              20                                                        Austin, Texas 78701
                                                                                                                        Phone: (512) 472-5456
                                                              21                                                        Fax: (512) 479-1101
                                                                                                                        paige.duggins-clay@huschblackwell.com
                                                              22
                                                              23                                                        Aleksandra O. Rushing (MO Bar No. 68304)
                                                                                                                        Shmuel B. Shulman (MO Bar No. 71175)
                                                              24                                                        Pro hac vice motions pending
                                                                                                                        190 Carondelet Plaza, Suite 600
                                                              25                                                        St. Louis, Missouri 63141
                                                                                                                        Phone: 314-345-6275
                                                              26                                                        Fax: 314-480-1505
                                                                                                                        aleks.rushing@huschblackwell.com
                                                              27                                                        shmuli.shulman@huschblackwell.com
                                                              28
                                                                                                                   24
                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                        IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
                                                                           Case 3:20-cv-04478-JD Document 47-1 Filed 07/24/20 Page 30 of 92




                                                               1                                   CERTIFICATE OF SERVICE

                                                               2          The undersigned certifies that on the 24th day of July, 2020, a copy of the above and

                                                               3   foregoing document was filed with the Clerk of Court using the CM/ECF system which sent

                                                               4   electronic notification of such filing to all those individuals currently electronically registered

                                                               5   with the Court.

                                                               6
                                                               7                                                /s/        Donald J. Mizerk

                                                               8
                                                               9
                                                              10
                                                              11
                                                              12
                                                              13




HUSCH BLACKWELL LLP
                      120 South Riverside Plaza, Suite 2200   14

                            Chicago, Illinois 60606
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                                                                                THE COUNCIL OF THE GREAT CITY SCHOOLS AMICUS CURIAE BRIEF
                                                                        IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (3:20-cv-04478-JD)
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