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U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-01996-DLF

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al v. DEVOS et al Assigned to: Judge Dabney L. Friedrich Cause: 05:551 Administrative Procedure Act

Date Filed: 07/22/2020 Date Terminated: 09/04/2020 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE

represented by Wendy Lecker EDUCATION LAW CENTER 60 Park Place Suite 300 Newark, NJ 07102 203-536-7567 Email: wlecker@edlawcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bacardi Jackson SOUTHERN POVERTY LAW CENTER PO Box 12463 Miami, FL 33101 786-570-8047 Fax: 786-237-2949 Email: bacardi.jackson@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Christine Bischoff SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104

336-416-0281 Fax: 334-956-8481 Email: christine.bischoff@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue 50th Floor Los Angeles, CA 90071 213-683-9527 Fax: 213-687-3702 Email: david.thoreson@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue 50th Floor Los Angeles, CA 90071 213-683-9214 Email: jessica.baril@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin EDUCATION LAW CENTER 60 Park Place Suite 300 Newark, NJ 07102 973-624-1815 Email: jlevin@edlawcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis MUNGER, TOLLES & OLSON LLP 601 Massachusetts Avenue, NW Suite 500e Washington, DC 20001-5369 202-220-1130 Email: jonathan.kravis@mto.com ATTORNEY TO BE NOTICED

Katherine Dunn SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 334-202-9087 Fax: 334-956-8481 Email: katherine.dunn@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein SOUTHERN POVERTY LAW CENTER 111 E Capitol Street Suite 280 Jackson, MS 39201 601-812-7539 Fax: 601-948-8885 Email: lindsey.rubinstein@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36111 334-315-0179 Fax: 334-956-8481 Email: michael.tafelski@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd SOUTHERN POVERTY LAW CENTER PO Box 12463 Miami, FL 33101 305-537-0574 Email: samtsb@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
PENELOPE LANTZ individually and as next friend of minor child A.C.

Tamerlin J. Godley MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue 50th Floor Los Angeles, CA 90071 213-683-9232 Email: tamerlin.godley@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri MUNGER, TOLLES & OLSON LLP 601 Massachusetts Avenue, NW Suite 500e Washington, DC 20001-5369 202-220-1109 Fax: 202-220-2300 Email: adele.el-khouri@mto.com ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE

Plaintiff
MARSHA LOPEZ individually and as next friend of minor children M.L. and G.L.

ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd

Plaintiff
SUSAN BOOK individually and as next friend of minor child E.P.

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis

Plaintiff
MICHELE WILSON individually and as next friend of minor children A.W. and K.W.

(See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
ADRIENNE GILBY individually and as next friend of minor children C.G. and E.G.

Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
KIMBERLY ROMMELENRIGHT individually and as next friend of minor child A.E.

Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED

STEPHEN ENRIGHT individually and as next friends of minor child A.E.

represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski

Plaintiff
TRACY OCONNOR individually and as next friend of minor children C.O., S.O. & M.O.

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin

Plaintiff
ELISE MCINTOSH individually and as next friend of minor children H.K. and M.K.

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
DEBORAH JOHNSON individually and as next friend of minor child D.J.

Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
BETH LEWIS individually and as next friend of minor children G.L. and M.L.

Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri

Plaintiff
JEANNETTE DIAZ individually and as next friend of minor child T.D.

(See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address)

Plaintiff
BRITTANY ALDOUS individually and as next friend of minor child J.R.

PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address)

Plaintiff
ABRAHAM CAMEJO individually and as next friend of minor children A.P. and S.P.

PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
KEISHA GUYTON individually and as next friend of minor child Z.C.

Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
LISA MINGRONE individually and as next friend of minor child A.M.

Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE

Plaintiff
WHITNEY BATTEAST individually and as next friend of minor child K.Y.

ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
HERBERT BROWN individually and as next friend of minor child J.B.

Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED

VILLI PREMPEH individually and as next friend of minor children W.N. and P.N.

represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski

Plaintiff
DENVER COUNTY SCHOOL DISTRICT NO. 1 also known as DENVER PUBLIC SCHOOLS

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin

Plaintiff
PASADENA UNIFIED SCHOOL DISTRICT

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED
Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff STAMFORD PUBLIC SCHOOLS

Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy Lecker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bacardi Jackson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christine Bischoff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Patrick Thoreson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Reich Baril (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Levin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Ian Kravis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff DEKALB COUNTY SCHOOL DISTRICT
Plaintiff BROWARD COUNTY PUBLIC SCHOOLS

Katherine Dunn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey Rubinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Tafelski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel T.S. Boyd (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamerlin J. Godley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED
represented by Adele El-Khouri (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
ELISABETH D. DEVOS "Betsy," in her official capacity as the United States Secretary of Education

represented by William Kerwin Lane , III U.S. DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, NW Ste Main 3138

Defendant UNITED STATES DEPARTMENT OF EDUCATION Amicus NATIONAL CATHOLIC EDUCATION ASSOCIATION
Amicus AGUDATH ISRAEL OF AMERICA

Washington, DC 20530 202-305-7920 Email: william.lane2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Kerwin Lane , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Britain Henry GOLDSTEIN LAW PARTNERS 11 Church Rd Suite 1a PA Hatfield, PA 19440 610-944-0444 Email: bhenry@goldsteinlp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg WISCONSIN INSTITUTE FOR LAW & LIBERTY 330 E Killbourn Ave Suite 725 Milwaukee, WI 53202-3141 414-727-7361 Email: luke@will-law.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan S. Goldstein GOLDSTEIN LAW PARTNERS, LLC 11 Church Road Hatfield, PA 19440

Amicus COUNSEL OF ISLAMIC SCHOOLS IN NORTH AMERICA
Amicus ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL
Amicus AMERICAN ASSOCIATION OF CHRISTIAN SCHOOLS

(610) 727-4191 Fax: (215) 527-1910 Email: jonathan@goldsteinlp.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY

Amicus ASSOCIATION OF CHRISTIAN TEACHERS AND SCHOOLS
Amicus WELS COMMISSION ON LUTHERAN SCHOOLS
Amicus AMERICAN FEDERATION FOR CHILDREN
Amicus EDCHOICE

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address)

Amicus AMERICANS FOR PROSPERITY FOUNDATION
Amicus CATHOLIC EDUCATION PARTNERS
Amicus SOUTHEASTERN LEGAL FOUNDATION, INC.
Amicus COLORADO CATHOLIC CONFERENCE

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg

Amicus COLORADO ASSOCIATION OF PRIVATE SCHOOLS
Amicus INDIANA NON-PUBLIC EDUCATION ASSOCIATION
Amicus MICHIGAN CATHOLIC CONFERENCE
Amicus MICHIGAN ASSOCIATION OF NON-PUBLIC SCHOOLS

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus MIDSOUTH ASSOCIATION OF INDEPENDENT SCHOOLS
Amicus CATHOLIC CONFERENCE OF OKLAHOMA
Amicus PENNSYLVANIA CATHOLIC CONFERENCE
Amicus PENNSYLVANIA AFFILIATE OF THE COUNCIL FOR AMERICAN PRIVATE EDUCATION

Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus TEXAS PRIVATE SCHOOLS ASSOCIATION
Amicus WASHINGTON STATE CATHOLIC CONFERENCE

Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley 750 17th Street, NW Suite 900 Washington, DC 20006 202-378-2331 Email: steve.neeley@huschblackwell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige Duggins-Clay HUSCH BLACKWELL LLP 111 Congress Ave. Ste 1400 Austin, TX 78701 512-479-1156 Email: paige.dugginsclay@huschblackwell.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg

Amicus WASHINGTON FEDERATION OF INDEPENDENT SCHOOLS
Amicus WISCONSIN COUNSEL FOR RELIGIOUS & INDEPENDENT SCHOOLS
Amicus WISCONSIN CATHOLIC CONFERENCE
Amicus SCHOOL CHOICE WISCONSIN ACTION

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus GOLDWATER INSTITUTE
Amicus CALIFORNIA POLICY CENTER
Amicus LIBERTY JUSTICE CENTER
Amicus KIRKWOOD INSTITUTE

Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus PELICAN INSTITUTE FOR PUBLIC POLICY
Amicus MACKINAC CENTER FOR PUBLIC POLICY
Amicus GREAT LAKES EDUCATION FOUNDATION
Amicus MISSISSIPPI CENTER FOR PUBLIC POLICY

Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY

Amicus NEVADA POLICY RESEARCH INSTITUTE
Amicus RIO GRANDE FOUNDATION
Amicus ROUGHRIDER POLICY CENTER
Amicus BUCKEYE INSTITUTE

ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address)

Amicus COMMONWEALTH FOUNDATION FOR PUBLIC POLICY ALTERNATIVES
Amicus SCHOOL CHOICE WISCONSIN
Amicus COUNSEL FOR AMERICAN PRIVATE EDUCATION
Amicus

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

WASHINGTON POLICY CENTER
Amicus NATIONAL CENTER FOR LAW AND EDUCATION
Amicus CENTER FOR LAW AND EDUCATION
Amicus NATIONAL EDUCATION ASSOCIATION

represented by Britain Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke Berg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Matthew B. Bogin LAW OFFICE OF MATTHEW B. BOGIN 5454 Wisconsin Avenue Suite 760 Chevy Chase, MD 20815 301-656-1755 Fax: 240-396-5980 Email: matthew.bogin@boginlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B. Bogin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Weckstein CENTER FOR LAW AND EDUCATION 7011 8th Street NW Washington, DC 20012 202-986-3000 Email: pweckstein@cleweb.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt NATIONAL EDUCATION ASSOCIATION 1201 16th Street, NW

Amicus AASA
Amicus AMERICAN FEDERATION OF TEACHERS
Amicus AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
Amicus IN THE PUBLIC INTEREST
Amicus NATIONAL SCHOOL BOARDS ASSOCIATION
Amicus NETWORK FOR PUBLIC INTEREST
Amicus PROFESSORS OF EDUCATION

Washington, DC 20036 202-822-7231 Fax: 202-822-7033 Email: jburritt@nea.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus ARISE ADELANTE
Amicus BREAKTHROUGH CENTRAL TEXAS Amicus EVERY TEXAN
Amicus MCNEIL EDUCATIONAL FOUNDATION FOR ECUMENICAL LEADERSHIP Amicus MEXICAN AMERICAN SCHOOL BOARD MEMBERS ASSOCIATION
Amicus NATIONAL ASSOCIATION FOR CHICANA AND CHICANO STUDIES Amicus PASTORS FOR TEXAS CHILDREN

represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address)

Amicus TEACH PLUS TEXAS
Amicus TEXAS AMERICAN FEDERATION OF TEACHERS
Amicus TEXAS ASSOCIATION FOR BILINGUAL EDUCATION
Amicus TEXAS ASSOCIATION FOR CHICANOS IN HIGHER EDUCATION
Amicus

PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED

TEXAS ASSOCIATION OF LATINO ADMINISTRATORS AND SUPERINTENDENTS
Amicus TEXAS ASSOCIATION OF MEXICAN AMERICAN CHAMBERS OF COMMERCE
Amicus TEXAS CENTER FOR EDUCATIONPOLICY AT THE UNIVERSITY OF TEXAS AUSTIN
Amicus TEXAS HISPANICS ORGANIZED FOR POLITICAL EDUCATION
Amicus EDUCATION TRUST - TEXAS

represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley

Amicus LEAGUE OF UNITED LATIN AMERICAN CITIZENS
Amicus UNIDOSUS Amicus SOUTHERN EDUCATION FOUNDATION
Amicus EUREKA CITY UNIFIED SCHOOL DISTRICT
Amicus FAIRFAX COUNTY PUBLIC SCHOOLS

(See above for address) ATTORNEY TO BE NOTICED
represented by Paige Duggins-Clay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Steven A. Neeley (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Lee Snowden KILPATTRICK TOWNSEND & STOCKTON, LLP 4208 Six Forks Rd. Suite 1400 Raleigh, NC 27609 919-420-1719 Email: bsnowden@kilpatricktownsend.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric B. Fastiff LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street 29th Floor San Francisco, CA 94111-3339 415-956-1000 Fax: 415-956-1008 Email: efastiff@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric B. Fastiff (See above for address)

Amicus SAN ANTONIO INDEPENDENT SCHOOL DISTRICT
Amicus ATLANTA PUBLIC SCHOOLS Amicus SCHOOL SUPERINTENDENTS ASSOCIATION

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric B. Fastiff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey William Burritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/22/2020
07/22/2020 07/22/2020

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number ADCDC-7370212) filed by DEBORAH JOHNSON, DENVER COUNTY SCHOOL DISTRICT NO. 1, KIMBERLY ROMMEL-ENRIGHT, LISA MINGRONE, PENELOPE LANTZ, PASADENA UNIFIED SCHOOL DISTRICT, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, WHITNEY BATTEAST, STAMFORD PUBLIC SCHOOLS, KEISHA GUYTON, JEANNETTE DIAZ, ADRIENNE GILBY, MARSHA LOPEZ, TRACY OCONNOR, BETH LEWIS, VILLI PREMPEH, BRITTANY ALDOUS, ABRAHAM CAMEJO, STEPHEN ENRIGHT, SUSAN BOOK, HERBERT BROWN, ELISE MCINTOSH, MICHELE WILSON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(ElKhouri, Adele) (Entered: 07/22/2020)
2 NOTICE of Appearance by Adele El-Khouri on behalf of All Plaintiffs (El-Khouri, Adele) (Entered: 07/22/2020)
3 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jessica Reich Baril, Filing fee $ 100, receipt number ADCDC-7370478. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC

07/22/2020 07/22/2020 07/22/2020 07/22/2020

SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Christine Bischoff, Filing fee $ 100, receipt number ADCDC-7370500. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Samuel Boyd, Filing fee $ 100, receipt number ADCDC-7370512. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Katherine Dunn, Filing fee $ 100, receipt number ADCDC-7370522. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Tamerlin J. Godley, Filing fee $ 100, receipt number ADCDC-7370541. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN

07/22/2020 07/22/2020 07/22/2020

BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Bacardi L. Jackson, Filing fee $ 100, receipt number ADCDC-7370559. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Wendy Lecker, Filing fee $ 100, receipt number ADCDC-7370575. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jessica Levin, Filing fee $ 100, receipt number ADCDC-7370583. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY

07/22/2020 07/22/2020 07/22/2020 07/22/2020

OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lindsey Rubinstein, Filing fee $ 100, receipt number ADCDC-7370604. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Michael J. Tafelski, Filing fee $ 100, receipt number ADCDC-7370615. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- David P. Thoreson, Filing fee $ 100, receipt number ADCDC-7370623. Fee Status: Fee Paid. by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 07/22/2020)
Case Assigned to Judge Dabney L. Friedrich. (adh, ) (Entered: 07/22/2020)

07/23/2020 07/31/2020 07/31/2020 07/31/2020 07/31/2020 07/31/2020 07/31/2020

14 SUMMONS (4) Issued Electronically as to ELISABETH D. DEVOS, UNITED STATES DEPARTMENT OF EDUCATION, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 07/23/2020)
MINUTE ORDER granting the plaintiffs' 3 Motion for Leave to Appear Pro Hac Vice of Attorney Jessica Reich Baril. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 4 Motion for Leave to Appear Pro Hac Vice of Attorney Christine Bischoff.Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 5 Motion for Leave to Appear Pro Hac Vice of Attorney Samuel Boyd.Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 6 Motion for Leave to Appear Pro Hac Vice of Attorney Katherine Dunn. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 7 Motion for Leave to Appear Pro Hac Vice of Attorney Tamerlin J. Godley. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 8 Motion for Leave to Appear Pro Hac Vice of Attorney Bacardi L. Jackson. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi

07/31/2020 07/31/2020 07/31/2020 07/31/2020 07/31/2020 07/31/2020 08/03/2020

stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 9 Motion for Leave to Appear Pro Hac Vice of Attorney Wendy Lecker. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 10 Motion for Leave to Appear Pro Hac Vice of Attorney Jessica Levin. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 11 Motion for Leave to Appear Pro Hac Vice of Attorney Lindsey Rubinstein. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 12 Motion for Leave to Appear Pro Hac Vice of Attorney Michael J. Tafelski. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
MINUTE ORDER granting the plaintiffs' 13 Motion for Leave to Appear Pro Hac Vice of Attorney David P. Thoreson. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
15 STANDARD ORDER for Civil Cases. See text for details. Signed by Judge Dabney L. Friedrich on July 31, 2020. (lcdlf3) (Entered: 07/31/2020)
16 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jonathan I. Kravis, Filing fee $ 100, receipt number ADCDC-7416511. Fee Status: Fee Paid. by NATIONAL ASSOCIATION FOR THE ADVANCEMENT

08/03/2020
08/03/2020 08/04/2020 08/04/2020 08/04/2020 08/04/2020 08/04/2020 08/04/2020 08/04/2020 08/04/2020 08/04/2020

OF COLORED PEOPLE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(El-Khouri, Adele) (Entered: 08/03/2020)
MINUTE ORDER granting the plaintiffs' 16 Motion for Leave to Appear Pro Hac Vice of Attorney Jonathan I. Kravis. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 3, 2020. (lcdlf1) (Entered: 08/03/2020)
17 NOTICE of Appearance by Jonathan Ian Kravis on behalf of NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Kravis, Jonathan) (Entered: 08/03/2020)
18 NOTICE of Appearance by Wendy Lecker on behalf of All Plaintiffs (Lecker, Wendy) (Entered: 08/04/2020)
19 NOTICE of Appearance by Samuel T.S. Boyd on behalf of All Plaintiffs (Boyd, Samuel) (Entered: 08/04/2020)
20 NOTICE of Appearance by David Patrick Thoreson on behalf of All Plaintiffs (Thoreson, David) (Entered: 08/04/2020)
21 NOTICE of Appearance by Lindsey Rubinstein on behalf of All Plaintiffs (Rubinstein, Lindsey) (Entered: 08/04/2020)
22 ENTERED IN ERROR.....AFFIDAVIT of MAILING TO ELISABETH DEVOS by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (El-Khouri, Adele) Modified on 8/5/2020 (eg). (Entered: 08/04/2020)
23 ENTERED IN ERROR.....AFFIDAVIT OF MAILING TO UNITED STATES DEPARTMENT OF EDUCATION by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (El-Khouri, Adele) Modified on 8/5/2020 (eg). (Entered: 08/04/2020)
24 ENTERED IN ERROR.....AFFIDAVIT OF MAILING TO WILLIAM P. BARR by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (El-Khouri, Adele) Modified on 8/5/2020 (eg). (Entered: 08/04/2020)
25 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/31/2020. Answer due for ALL FEDERAL DEFENDANTS by 9/29/2020. (El-Khouri, Adele) (Entered: 08/04/2020)
26 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/03/2020., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ELISABETH D. DEVOS served on 8/3/2020; UNITED STATES

08/05/2020 08/05/2020 08/05/2020 08/05/2020 08/07/2020 08/10/2020 08/10/2020 08/10/2020 08/10/2020 08/11/2020
08/11/2020

DEPARTMENT OF EDUCATION served on 8/3/2020 (Attachments: # 1 Affidavit, # 2 Affidavit)(eg) (Entered: 08/05/2020)
NOTICE OF CORRECTED DOCKET ENTRY: re 23 Affidavit, 24 Affidavit, 22 Affidavit was entered in error and was refiled by the Clerk's Office. (eg) (Entered: 08/05/2020)
27 NOTICE of Appearance by Bacardi Jackson on behalf of All Plaintiffs (Jackson, Bacardi) (Entered: 08/05/2020)
28 NOTICE of Appearance by Jessica Levin on behalf of All Plaintiffs (Levin, Jessica) (Entered: 08/05/2020)
29 NOTICE of Appearance by Jessica Reich Baril on behalf of All Plaintiffs (Baril, Jessica) (Entered: 08/05/2020)
30 ENTERED IN ERROR.....NOTICE of Appearance by Michael Joseph Tafelski on behalf of All Plaintiffs (Tafelski, Michael) (Main Document 30 replaced on 8/11/2020) (znmw). Modified on 8/11/2020; refiled as Docket Entry 32 . (znmw). (Entered: 08/07/2020)
31 ENTERED IN ERROR.....NOTICE of Appearance by Christine Bischoff on behalf of All Plaintiffs (Bischoff, Christine) Modified on 8/11/2020; refiled as Docket Entry 33 . (znmw). (Entered: 08/10/2020)
32 NOTICE of Appearance by Michael Joseph Tafelski on behalf of All Plaintiffs (Tafelski, Michael) (Entered: 08/10/2020)
33 NOTICE of Appearance by Christine Bischoff on behalf of All Plaintiffs (Bischoff, Christine) (Entered: 08/10/2020)
34 NOTICE of Appearance by Katherine Dunn on behalf of All Plaintiffs (Dunn, Katherine) (Entered: 08/10/2020)
35 AMENDED COMPLAINT against ELISABETH D. DEVOS, UNITED STATES DEPARTMENT OF EDUCATION filed by DEBORAH JOHNSON, DENVER COUNTY SCHOOL DISTRICT NO. 1, KIMBERLY ROMMEL-ENRIGHT, LISA MINGRONE, PENELOPE LANTZ, PASADENA UNIFIED SCHOOL DISTRICT, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, WHITNEY BATTEAST, STAMFORD PUBLIC SCHOOLS, KEISHA GUYTON, JEANNETTE DIAZ, ADRIENNE GILBY, MARSHA LOPEZ, TRACY OCONNOR, BETH LEWIS, VILLI PREMPEH, BRITTANY ALDOUS, ABRAHAM CAMEJO, STEPHEN ENRIGHT, SUSAN BOOK, HERBERT BROWN, ELISE MCINTOSH, MICHELE WILSON.(El-Khouri, Adele) (Entered: 08/11/2020)
36 MOTION for Preliminary Injunction by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA

08/12/2020
08/12/2020 08/12/2020 08/12/2020
08/13/2020

MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON (Attachments: # 1 Memorandum in Support, # 2 Declaration Lecker, # 3 Declaration Broward County, # 4 Declaration Bullock County, # 5 Declaration Dekalb, # 6 Declaration Denver Public Schools, # 7 Declaration Metro Nashville, # 8 Declaration NAACP, # 9 Declaration Pasadena Unified, # 10 Declaration Stamford, # 11 Declaration Kravis, # 12 Text of Proposed Order)(El-Khouri, Adele) (Entered: 08/12/2020)
MINUTE ORDER. Before the Court is the plaintiffs' 36 Motion for Preliminary Injunction. The parties are directed to confer and file, on or before August 13, 2020, a joint status report informing the Court whether the parties consent to consolidating consideration of the plaintiffs' motion with an expedited ruling on the merits. See Fed. R. Civ. P. 65(a)(2). The parties shall also submit a proposed schedule for expedited briefing and the submission of the administrative record. So Ordered by Judge Dabney L. Friedrich on August 12, 2020. (lcdlf3) (Entered: 08/12/2020)
Set/Reset Deadlines: Status Report due by 8/13/2020 (zjch) (Entered: 08/12/2020)
37 NOTICE of Appearance by Tamerlin J. Godley on behalf of All Plaintiffs (Godley, Tamerlin) (Main Document 37 replaced on 8/12/2020) (zeg). (Entered: 08/12/2020)
38 AFFIDAVIT re 36 MOTION for Preliminary Injunction Amended Declaration of Wendy Lecker by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, HERBERT BROWN, ABRAHAM CAMEJO, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON. (Thoreson, David) (Entered: 08/12/2020)
39 Joint STATUS REPORT by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, BROWARD COUNTY PUBLIC SCHOOLS, HERBERT BROWN, ABRAHAM CAMEJO, DEKALB COUNTY SCHOOL DISTRICT, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON,

08/14/2020
08/14/2020 08/14/2020 08/14/2020 08/14/2020 08/17/2020
08/17/2020 08/17/2020 08/17/2020 08/24/2020

PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON. (Godley, Tamerlin) (Entered: 08/13/2020)
MINUTE ORDER directing the parties to file, on or before August 17, 2020, a joint status report proposing a briefing and hearing schedule as discussed during the August 14, 2020 telephonic status conference. So ordered by Judge Dabney L. Friedrich on August 14, 2020. (lcdlf3) (Entered: 08/14/2020)
Set/Reset Deadlines: Status Report due by 8/17/2020 (zjch) (Entered: 08/14/2020)
Minute Entry for proceedings held before Judge Dabney L. Friedrich: Telephone Conference held on 8/14/2020. Scheduling discussed. Minute Order to follow Court Reporter Sara Wick (zjch) (Entered: 08/14/2020)
40 ENTERED IN ERROR.....NOTICE of Appearance by William Kerwin Lane, III on behalf of All Defendants (Lane, William) Modified on 8/17/2020 (eg). (Entered: 08/14/2020)
41 Joint STATUS REPORT by ELISABETH D. DEVOS, UNITED STATES DEPARTMENT OF EDUCATION. (Lane, William) (Entered: 08/14/2020)
MINUTE ORDER. Upon consideration of the parties' 41 joint status report, the Court adopts the following briefing schedule: the defendant shall file, on or before August 24, 2020, an opposition to the plaintiff's motion: the plaintiffs shall file, on or before August 28, 2020, any reply. The court will hold a motions hearing on September 4, 2020 at 1:00pm. So ordered by Judge Dabney L. Friedrich on August 17, 2020. (lcdlf3) (Entered: 08/17/2020)
Set/Reset Deadlines/Hearings: Responses due by 8/24/2020. Replies due by 8/28/2020. Motion Hearing set for 9/4/2020 at 1:00 PM in Telephonic/VTC before Judge Dabney L. Friedrich. (zjch) (Entered: 08/17/2020)
NOTICE OF CORRECTED DOCKET ENTRY: re 40 Notice of Appearance was entered in error and counsel was instructed to refile said pleading with correct court/case information and case number. (eg) (Entered: 08/17/2020)
42 NOTICE of Appearance by William Kerwin Lane, III on behalf of All Defendants (Lane, William) (Entered: 08/17/2020)
43 NOTICE of Appearance by Britain Henry on behalf of NATIONAL CATHOLIC EDUCATION ASSOCIATION, AGUDATH ISRAEL OF

08/24/2020

AMERICA, COUNSEL OF ISLAMIC SCHOOLS IN NORTH AMERICA, ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, AMERICAN ASSOCIATION OF CHRISTIAN SCHOOLS, ASSOCIATION OF CHRISTIAN TEACHERS AND SCHOOLS, WELS COMMISSION ON LUTHERAN SCHOOLS, THE AMERICAN FEDERATION FOR CHILDREN, EDCHOICE, Americans for Prosperity Foundation, CATHOLIC EDUCATION PARTNERS, SOUTHEASTERN LEGAL FOUNDATION, INC., COLORADO CATHOLIC CONFERENCE, COLORADO ASSOCIATION OF PRIVATE SCHOOLS, INDIANA NON-PUBLIC EDUCATION ASSOCIATION, MICHIGAN CATHOLIC CONFERENCE, MICHIGAN ASSOCIATION OF NON-PUBLIC SCHOOLS, MIDSOUTH ASSOCIATION OF INDEPENDENT SCHOOLS, CATHOLIC CONFERENCE OF OKLAHOMA, PENNSYLVANIA CATHOLIC CONFERENCE, PENNSYLVANIA AFFILIATE OF THE COUNCIL FOR AMERICAN PRIVATE EDUCATION, TEXAS PRIVATE SCHOOLS ASSOCIATION, WASHINGTON STATE CATHOLIC CONFERENCE, WASHINGTON FEDERATION OF INDEPENDENT SCHOOLS, WISCONSIN COUNSEL FOR RELIGIOUS & INDEPENDENT SCHOOLS, WISCONSIN CATHOLIC CONFERENCE, SCHOOL CHOICE WISCONSIN ACTION, GOLDWATER INSTITUTE, CALIFORNIA POLICY CENTER, LIBERTY JUSTICE CENTER, KIRKWOOD INSTITUTE, PELICAN INSTITUTE FOR PUBLIC POLICY, MACKINAC CENTER FOR PUBLIC POLICY, GREAT LAKES EDUCATION FOUNDATION, MISSISSIPPI CENTER FOR PUBLIC POLICY, NEVADA POLICY RESEARCH INSTITUTE, RIO GRANDE FOUNDATION, ROUGHRIDER POLICY CENTER, BUCKEYE INSTITUTE, COMMONWEALTH FOUNDATION FOR PUBLIC POLICY ALTERNATIVES, SCHOOL CHOICE WISCONSIN, COUNSEL FOR AMERICAN PRIVATE EDUCATION, WASHINGTON POLICY CENTER (Henry, Britain) (Entered: 08/24/2020)
44 Unopposed MOTION for Leave to File Amicus Brief by AGUDATH ISRAEL OF AMERICA, AMERICAN ASSOCIATION OF CHRISTIAN SCHOOLS, ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, ASSOCIATION OF CHRISTIAN TEACHERS AND SCHOOLS, Americans for Prosperity Foundation, BUCKEYE INSTITUTE, CALIFORNIA POLICY CENTER, CATHOLIC CONFERENCE OF OKLAHOMA, CATHOLIC EDUCATION PARTNERS, COLORADO ASSOCIATION OF PRIVATE SCHOOLS, COLORADO CATHOLIC CONFERENCE, COMMONWEALTH FOUNDATION FOR PUBLIC POLICY ALTERNATIVES, COUNSEL FOR AMERICAN PRIVATE EDUCATION, COUNSEL OF ISLAMIC SCHOOLS IN NORTH AMERICA, EDCHOICE, GOLDWATER INSTITUTE, GREAT LAKES EDUCATION FOUNDATION, INDIANA NON-PUBLIC EDUCATION ASSOCIATION, KIRKWOOD

08/24/2020

INSTITUTE, LIBERTY JUSTICE CENTER, MACKINAC CENTER FOR PUBLIC POLICY, MICHIGAN ASSOCIATION OF NON-PUBLIC SCHOOLS, MICHIGAN CATHOLIC CONFERENCE, MIDSOUTH ASSOCIATION OF INDEPENDENT SCHOOLS, MISSISSIPPI CENTER FOR PUBLIC POLICY, NATIONAL CATHOLIC EDUCATION ASSOCIATION, NEVADA POLICY RESEARCH INSTITUTE, PELICAN INSTITUTE FOR PUBLIC POLICY, PENNSYLVANIA AFFILIATE OF THE COUNCIL FOR AMERICAN PRIVATE EDUCATION, PENNSYLVANIA CATHOLIC CONFERENCE, RIO GRANDE FOUNDATION, ROUGHRIDER POLICY CENTER, SCHOOL CHOICE WISCONSIN, SCHOOL CHOICE WISCONSIN ACTION, TEXAS PRIVATE SCHOOLS ASSOCIATION, THE AMERICAN FEDERATION FOR CHILDREN, WASHINGTON FEDERATION OF INDEPENDENT SCHOOLS, WASHINGTON POLICY CENTER, WASHINGTON STATE CATHOLIC CONFERENCE, WELS COMMISSION ON LUTHERAN SCHOOLS, WISCONSIN CATHOLIC CONFERENCE, WISCONSIN COUNSEL FOR RELIGIOUS & INDEPENDENT SCHOOLS (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Proposed Amicus Brief)(Henry, Britain) (Entered: 08/24/2020)
45 MOTION for Leave to Appear Pro Hac Vice: Attorney Name- Luke N. Berg, Filing fee $ 100, receipt number ADCDC-7502093. Fee Status: Fee Paid. by AGUDATH ISRAEL OF AMERICA, AMERICAN ASSOCIATION OF CHRISTIAN SCHOOLS, ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, ASSOCIATION OF CHRISTIAN TEACHERS AND SCHOOLS, Americans for Prosperity Foundation, BUCKEYE INSTITUTE, CALIFORNIA POLICY CENTER, CATHOLIC CONFERENCE OF OKLAHOMA, CATHOLIC EDUCATION PARTNERS, COLORADO ASSOCIATION OF PRIVATE SCHOOLS, COLORADO CATHOLIC CONFERENCE, COMMONWEALTH FOUNDATION FOR PUBLIC POLICY ALTERNATIVES, COUNSEL FOR AMERICAN PRIVATE EDUCATION, COUNSEL OF ISLAMIC SCHOOLS IN NORTH AMERICA, EDCHOICE, GOLDWATER INSTITUTE, GREAT LAKES EDUCATION FOUNDATION, INDIANA NON-PUBLIC EDUCATION ASSOCIATION, KIRKWOOD INSTITUTE, LIBERTY JUSTICE CENTER, MACKINAC CENTER FOR PUBLIC POLICY, MICHIGAN ASSOCIATION OF NON-PUBLIC SCHOOLS, MICHIGAN CATHOLIC CONFERENCE, MIDSOUTH ASSOCIATION OF INDEPENDENT SCHOOLS, MISSISSIPPI CENTER FOR PUBLIC POLICY, NATIONAL CATHOLIC EDUCATION ASSOCIATION, NEVADA POLICY RESEARCH INSTITUTE, PELICAN INSTITUTE FOR PUBLIC POLICY, PENNSYLVANIA AFFILIATE OF THE COUNCIL FOR AMERICAN PRIVATE EDUCATION, PENNSYLVANIA CATHOLIC CONFERENCE, RIO GRANDE FOUNDATION, ROUGHRIDER POLICY CENTER, SCHOOL CHOICE

08/24/2020 08/25/2020 08/25/2020
08/25/2020

WISCONSIN, SCHOOL CHOICE WISCONSIN ACTION, SOUTHEASTERN LEGAL FOUNDATION, INC., TEXAS PRIVATE SCHOOLS ASSOCIATION, THE AMERICAN FEDERATION FOR CHILDREN, WASHINGTON FEDERATION OF INDEPENDENT SCHOOLS, WASHINGTON POLICY CENTER, WASHINGTON STATE CATHOLIC CONFERENCE, WELS COMMISSION ON LUTHERAN SCHOOLS, WISCONSIN CATHOLIC CONFERENCE, WISCONSIN COUNSEL FOR RELIGIOUS & INDEPENDENT SCHOOLS (Attachments: # 1 Declaration of Luke N. Berg, # 2 Text of Proposed Order Proposed Order)(Henry, Britain) (Entered: 08/24/2020)
46 Memorandum in opposition to re 36 MOTION for Preliminary Injunction filed by ELISABETH D. DEVOS, UNITED STATES DEPARTMENT OF EDUCATION. (Lane, William) (Entered: 08/24/2020)
MINUTE ORDER. Upon consideration of Amici Private School Associations' and Advocacy Groups' 44 Unopposed Motion for Leave to File an Amicus Brief, it is hereby ORDERED that the motion is GRANTED. So Ordered by Judge Dabney L. Friedrich on August 25, 2020. (lcdlf3) Modified to add event title on 8/26/2020 (znmw). (Entered: 08/25/2020)
MINUTE ORDER granting Amici Private School Associations' and Advocacy Groups' 45 Motion for Leave to Appear Pro Hac Vice of Attorney Luke N. Berg. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 25, 2020. (lcdlf3) (Entered: 08/25/2020)
50 AMICUS BRIEF by AGUDATH ISRAEL OF AMERICA, AMERICAN ASSOCIATION OF CHRISTIAN SCHOOLS, ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, ASSOCIATION OF CHRISTIAN TEACHERS AND SCHOOLS, Americans for Prosperity Foundation, BUCKEYE INSTITUTE, CALIFORNIA POLICY CENTER, CATHOLIC CONFERENCE OF OKLAHOMA, CATHOLIC EDUCATION PARTNERS, COLORADO ASSOCIATION OF PRIVATE SCHOOLS, COLORADO CATHOLIC CONFERENCE, COMMONWEALTH FOUNDATION FOR PUBLIC POLICY ALTERNATIVES, COUNSEL FOR AMERICAN PRIVATE EDUCATION, COUNSEL OF ISLAMIC SCHOOLS IN NORTH AMERICA, EDCHOICE, GOLDWATER INSTITUTE, GREAT LAKES EDUCATION FOUNDATION, INDIANA NON-PUBLIC EDUCATION ASSOCIATION, KIRKWOOD INSTITUTE, LIBERTY JUSTICE CENTER, MACKINAC CENTER FOR PUBLIC POLICY, MICHIGAN ASSOCIATION OF NON-PUBLIC SCHOOLS, MICHIGAN

08/26/2020

CATHOLIC CONFERENCE, MIDSOUTH ASSOCIATION OF INDEPENDENT SCHOOLS, MISSISSIPPI CENTER FOR PUBLIC POLICY, NATIONAL CATHOLIC EDUCATION ASSOCIATION, NEVADA POLICY RESEARCH INSTITUTE, PELICAN INSTITUTE FOR PUBLIC POLICY, PENNSYLVANIA AFFILIATE OF THE COUNCIL FOR AMERICAN PRIVATE EDUCATION, PENNSYLVANIA CATHOLIC CONFERENCE, RIO GRANDE FOUNDATION, ROUGHRIDER POLICY CENTER, SCHOOL CHOICE WISCONSIN, SCHOOL CHOICE WISCONSIN ACTION, TEXAS PRIVATE SCHOOLS ASSOCIATION, THE AMERICAN FEDERATION FOR CHILDREN, WASHINGTON FEDERATION OF INDEPENDENT SCHOOLS, WASHINGTON POLICY CENTER, WASHINGTON STATE CATHOLIC CONFERENCE, WELS COMMISSION ON LUTHERAN SCHOOLS, WISCONSIN CATHOLIC CONFERENCE, WISCONSIN COUNSEL FOR RELIGIOUS & INDEPENDENT SCHOOLS. (zrdj) (Entered: 08/28/2020)
47 NOTICE of Appearance by Luke Berg on behalf of AGUDATH ISRAEL OF AMERICA, AMERICAN ASSOCIATION OF CHRISTIAN SCHOOLS, ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, ASSOCIATION OF CHRISTIAN TEACHERS AND SCHOOLS, Americans for Prosperity Foundation, BUCKEYE INSTITUTE, CALIFORNIA POLICY CENTER, CATHOLIC CONFERENCE OF OKLAHOMA, CATHOLIC EDUCATION PARTNERS, COLORADO ASSOCIATION OF PRIVATE SCHOOLS, COLORADO CATHOLIC CONFERENCE, COMMONWEALTH FOUNDATION FOR PUBLIC POLICY ALTERNATIVES, COUNSEL FOR AMERICAN PRIVATE EDUCATION, COUNSEL OF ISLAMIC SCHOOLS IN NORTH AMERICA, EDCHOICE, GOLDWATER INSTITUTE, GREAT LAKES EDUCATION FOUNDATION, INDIANA NON-PUBLIC EDUCATION ASSOCIATION, KIRKWOOD INSTITUTE, LIBERTY JUSTICE CENTER, MACKINAC CENTER FOR PUBLIC POLICY, MICHIGAN ASSOCIATION OF NON-PUBLIC SCHOOLS, MICHIGAN CATHOLIC CONFERENCE, MIDSOUTH ASSOCIATION OF INDEPENDENT SCHOOLS, MISSISSIPPI CENTER FOR PUBLIC POLICY, NATIONAL CATHOLIC EDUCATION ASSOCIATION, NEVADA POLICY RESEARCH INSTITUTE, PELICAN INSTITUTE FOR PUBLIC POLICY, PENNSYLVANIA AFFILIATE OF THE COUNCIL FOR AMERICAN PRIVATE EDUCATION, PENNSYLVANIA CATHOLIC CONFERENCE, RIO GRANDE FOUNDATION, ROUGHRIDER POLICY CENTER, SCHOOL CHOICE WISCONSIN, SCHOOL CHOICE WISCONSIN ACTION, SOUTHEASTERN LEGAL FOUNDATION, INC., TEXAS PRIVATE SCHOOLS ASSOCIATION, THE AMERICAN FEDERATION FOR CHILDREN, WASHINGTON FEDERATION OF INDEPENDENT SCHOOLS, WASHINGTON POLICY CENTER, WASHINGTON STATE CATHOLIC

08/27/2020 08/27/2020 08/28/2020
08/28/2020
08/28/2020 08/28/2020 08/28/2020

CONFERENCE, WELS COMMISSION ON LUTHERAN SCHOOLS, WISCONSIN CATHOLIC CONFERENCE, WISCONSIN COUNSEL FOR RELIGIOUS & INDEPENDENT SCHOOLS (Berg, Luke) (Entered: 08/26/2020)
48 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Paul Weckstein, Filing fee $ 100, receipt number ADCDC-7517514. Fee Status: Fee Paid. by National Center for Law and Education (Attachments: # 1 Declaration Declaration of Paul Weckstein)(Bogin, Matthew) (Entered: 08/27/2020)
49 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Kathleen Boundy, Filing fee $ 100, receipt number ADCDC-7517569. Fee Status: Fee Paid. by CENTER FOR LAW AND EDUCATION (Attachments: # 1 Declaration Declaration of K Boundy, # 2 Text of Proposed Order)(Bogin, Matthew) (Entered: 08/27/2020)
MINUTE ORDER granting amici's 48 Motion for Leave to Appear Pro Hac Vice for Attorney Paul Weckstein. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf3) (Entered: 08/28/2020)
MINUTE ORDER granting amici's 49 Motion for Leave to Appear Pro Hac Vice for Attorney Kathleen Boundy. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf3) (Entered: 08/28/2020)
51 MOTION for Leave to File Brief as Amici Curiae by NATIONAL EDUCATION ASSOCIATION (Attachments: # 1 Text of Proposed Order)(Burritt, Jeffrey) (Entered: 08/28/2020)
MINUTE ORDER. Upon consideration of Amici National Education Association et al.'s 51 Unopposed Motion for Leave to File Brief as Amici Curiae, it is hereby ORDERED that the motion is GRANTED. So Ordered by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf3) (Entered: 08/28/2020)
52 NOTICE of Appearance by Jeffrey William Burritt on behalf of NATIONAL EDUCATION ASSOCIATION, AASA, The School Superintendents' Association, AMERICAN FEDERATION OF TEACHERS, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, in the public interest, NATIONAL SCHOOL BOARDS ASSOCIATION, network for public education, Professors of Education (Burritt, Jeffrey) (Entered: 08/28/2020)

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53 NOTICE of Appearance by Paul Weckstein on behalf of CENTER FOR LAW AND EDUCATION (Weckstein, Paul) (Entered: 08/28/2020)
54 AMICUS BRIEF by AASA, The School Superintendents' Association, AMERICAN FEDERATION OF TEACHERS, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, NATIONAL EDUCATION ASSOCIATION, NATIONAL SCHOOL BOARDS ASSOCIATION, Professors of Education, in the public interest, network for public education. (Burritt, Jeffrey) (Entered: 08/28/2020)
55 Consent MOTION for Leave to File Amicus Curiae Brief by ARISE Adelante, Breakthrough Central Texas, EVERY TEXAN, MCNEIL EDUCATIONAL FOUNDATION FOR ECUMENICAL LEADERSHIP, MEXICAN AMERICAN SCHOOL BOARD MEMBERS ASSOCIATION, NATIONAL ASSOCIATION FOR CHICANA AND CHICANO STUDIES, PASTORS FOR TEXAS CHILDREN, TEACH PLUS TEXAS, TEXAS AMERICAN FEDERATION OF TEACHERS, TEXAS ASSOCIATION FOR BILINGUAL EDUCATION, TEXAS ASSOCIATION FOR CHICANOS IN HIGHER EDUCATION, TEXAS ASSOCIATION OF LATINO ADMINISTRATORS AND SUPERINTENDENTS, TEXAS ASSOCIATION OF MEXICAN AMERICAN CHAMBERS OF COMMERCE, TEXAS CENTER FOR EDUCATIONPOLICY AT THE UNIVERSITY OF TEXAS - AUSTIN, TEXAS HISPANICS ORGANIZED FOR POLITICAL EDUCATION, THE EDUCATION TRUST - TEXAS, THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS, UNIDOSUS (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Exhibit A to Proposed Amicus Brief, # 3 Exhibit B to Proposed Amicus Brief, # 4 Exhibit C to Proposed Amicus Brief, # 5 Text of Proposed Order)(Neeley, Steven) (Entered: 08/28/2020)
56 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Paige Duggins-Clay, Filing fee $ 100, receipt number ADCDC-7523799. Fee Status: Fee Paid. by ARISE Adelante, Breakthrough Central Texas, EVERY TEXAN, MCNEIL EDUCATIONAL FOUNDATION FOR ECUMENICAL LEADERSHIP, MEXICAN AMERICAN SCHOOL BOARD MEMBERS ASSOCIATION, NATIONAL ASSOCIATION FOR CHICANA AND CHICANO STUDIES, PASTORS FOR TEXAS CHILDREN, TEACH PLUS TEXAS, TEXAS AMERICAN FEDERATION OF TEACHERS, TEXAS ASSOCIATION FOR BILINGUAL EDUCATION, TEXAS ASSOCIATION FOR CHICANOS IN HIGHER EDUCATION, TEXAS ASSOCIATION OF LATINO ADMINISTRATORS AND SUPERINTENDENTS, TEXAS ASSOCIATION OF MEXICAN AMERICAN CHAMBERS OF COMMERCE, TEXAS CENTER FOR EDUCATIONPOLICY AT THE UNIVERSITY OF TEXAS - AUSTIN, TEXAS HISPANICS ORGANIZED FOR POLITICAL EDUCATION, THE EDUCATION TRUST - TEXAS, THE LEAGUE OF UNITED LATIN AMERICAN

08/28/2020
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CITIZENS, UNIDOSUS (Attachments: # 1 Affidavit of Paige DugginsClay)(Neeley, Steven) (Entered: 08/28/2020)
57 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Shmuel B. Shulman, Filing fee $ 100, receipt number ADCDC-7523826. Fee Status: Fee Paid. by ARISE Adelante, Breakthrough Central Texas, EVERY TEXAN, MCNEIL EDUCATIONAL FOUNDATION FOR ECUMENICAL LEADERSHIP, MEXICAN AMERICAN SCHOOL BOARD MEMBERS ASSOCIATION, NATIONAL ASSOCIATION FOR CHICANA AND CHICANO STUDIES, PASTORS FOR TEXAS CHILDREN, TEACH PLUS TEXAS, TEXAS AMERICAN FEDERATION OF TEACHERS, TEXAS ASSOCIATION FOR BILINGUAL EDUCATION, TEXAS ASSOCIATION FOR CHICANOS IN HIGHER EDUCATION, TEXAS ASSOCIATION OF LATINO ADMINISTRATORS AND SUPERINTENDENTS, TEXAS ASSOCIATION OF MEXICAN AMERICAN CHAMBERS OF COMMERCE, TEXAS CENTER FOR EDUCATIONPOLICY AT THE UNIVERSITY OF TEXAS - AUSTIN, TEXAS HISPANICS ORGANIZED FOR POLITICAL EDUCATION, THE EDUCATION TRUST - TEXAS, THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS, UNIDOSUS (Attachments: # 1 Affidavit of Shmuel B. Shulman)(Neeley, Steven) (Entered: 08/28/2020)
58 Unopposed MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Partial Summary Judgment by Southern Education Foundation (Attachments: # 1 Amicus Curiae Brief, # 2 Proposed Order)(Snowden, Benjamin) (Entered: 08/28/2020)
59 NOTICE of Appearance by Benjamin Lee Snowden on behalf of Southern Education Foundation (Snowden, Benjamin) (Entered: 08/28/2020)
60 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by Southern Education Foundation (Snowden, Benjamin) (Entered: 08/28/2020)
MINUTE ORDER granting amici's 56 Motion for Leave to Appear Pro Hac Vice for Attorney Paige Duggins-Clay. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf3) (Entered: 08/28/2020)
MINUTE ORDER granting amici's 57 Motion for Leave to Appear Pro Hac Vice for Attorney Shmuel B. Shulman. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf3) (Entered: 08/28/2020)

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61 NOTICE of Appearance by Eric B. Fastiff on behalf of EUREKA CITY UNIFIED SCHOOL DISTRICT, FAIRFAX COUNTY PUBLIC SCHOOLS, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT (Fastiff, Eric) (Entered: 08/28/2020)
MINUTE ORDER. Upon consideration of amici Arise Adelante et al.'s 55 Consent Motion for Leave to File Amicus Curiae Brief, it is hereby ORDERED that the motion is GRANTED. So Ordered by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf3) (Entered: 08/28/2020)
62 Unopposed MOTION for Leave to File Amicus Brief by EUREKA CITY UNIFIED SCHOOL DISTRICT, FAIRFAX COUNTY PUBLIC SCHOOLS, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT (Attachments: # 1 Text of Proposed Order, # 2 Exhibit - Proposed Amicus Brief, # 3 Exhibit A to Proposed Amicus Brief, # 4 Exhibit B to Proposed Amicus Brief, # 5 Exhibit C to Proposed Amicus Brief, # 6 Exhibit D to Proposed Amicus Brief)(Fastiff, Eric) (Entered: 08/28/2020)
MINUTE ORDER. Upon consideration of amici Eureka City Unified School District et al.'s 62 Unopposed MOTION for Leave to File Amicus Brief, it is hereby ORDERED that the motion is GRANTED. So Ordered by Judge Dabney L. Friedrich on August 28, 2020. (lcdlf3) (Entered: 08/28/2020)
63 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Kelly M. Dermody, Filing fee $ 100, receipt number ADCDC-7524689. Fee Status: Fee Paid. by EUREKA CITY UNIFIED SCHOOL DISTRICT, FAIRFAX COUNTY PUBLIC SCHOOLS, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT (Attachments: # 1 Declaration of Kelly M. Dermody, # 2 Text of Proposed Order)(Fastiff, Eric) (Entered: 08/28/2020)
64 REPLY to opposition to motion re 36 MOTION for Preliminary Injunction REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT filed by BRITTANY ALDOUS, WHITNEY BATTEAST, SUSAN BOOK, BROWARD COUNTY PUBLIC SCHOOLS, HERBERT BROWN, ABRAHAM CAMEJO, DEKALB COUNTY SCHOOL DISTRICT, DENVER COUNTY SCHOOL DISTRICT NO. 1, JEANNETTE DIAZ, STEPHEN ENRIGHT, ADRIENNE GILBY, KEISHA GUYTON, DEBORAH JOHNSON, PENELOPE LANTZ, BETH LEWIS, MARSHA LOPEZ, ELISE MCINTOSH, LISA MINGRONE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, TRACY OCONNOR, PASADENA UNIFIED SCHOOL DISTRICT, VILLI PREMPEH, KIMBERLY ROMMEL-ENRIGHT, STAMFORD PUBLIC SCHOOLS, MICHELE WILSON. (El-Khouri, Adele) (Entered: 08/28/2020)
65 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Michael Levin-Gesundheit, Filing fee $ 100, receipt number ADCDC-7524721. Fee Status: Fee Paid. by EUREKA CITY UNIFIED SCHOOL DISTRICT,

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FAIRFAX COUNTY PUBLIC SCHOOLS, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT (Attachments: # 1 Declaration of Michael Levin-Gesundheit, # 2 Text of Proposed Order)(Fastiff, Eric) (Entered: 08/28/2020)
66 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Christopher B. Jordan, Filing fee $ 100, receipt number ADCDC-7524747. Fee Status: Fee Paid. by EUREKA CITY UNIFIED SCHOOL DISTRICT, FAIRFAX COUNTY PUBLIC SCHOOLS, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT (Attachments: # 1 Declaration of Christopher B. Jordan, # 2 Text of Proposed Order)(Fastiff, Eric) (Entered: 08/28/2020)
67 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Kartik S. Madiraju, Filing fee $ 100, receipt number ADCDC-7524764. Fee Status: Fee Paid. by EUREKA CITY UNIFIED SCHOOL DISTRICT, FAIRFAX COUNTY PUBLIC SCHOOLS, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT (Attachments: # 1 Declaration of Kartik S. Madiraju, # 2 Text of Proposed Order)(Fastiff, Eric) (Entered: 08/28/2020)
68 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Neeru Gupta, Filing fee $ 100, receipt number ADCDC-7524767. Fee Status: Fee Paid. by EUREKA CITY UNIFIED SCHOOL DISTRICT, FAIRFAX COUNTY PUBLIC SCHOOLS, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT (Attachments: # 1 Declaration of Neeru Gupta, # 2 Text of Proposed Order)(Fastiff, Eric) (Entered: 08/28/2020)
72 AMICUS BRIEF by ARISE ADELANTE, BREAKTHROUGH CENTRAL TEXAS, EDUCATION TRUST - TEXAS, EVERY TEXAN, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, MCNEIL EDUCATIONAL FOUNDATION FOR ECUMENICAL LEADERSHIP, MEXICAN AMERICAN SCHOOL BOARD MEMBERS ASSOCIATION, NATIONAL ASSOCIATION FOR CHICANA AND CHICANO STUDIES, PASTORS FOR TEXAS CHILDREN, TEACH PLUS TEXAS, TEXAS AMERICAN FEDERATION OF TEACHERS, TEXAS ASSOCIATION FOR BILINGUAL EDUCATION, TEXAS ASSOCIATION FOR CHICANOS IN HIGHER EDUCATION, TEXAS ASSOCIATION OF LATINO ADMINISTRATORS AND SUPERINTENDENTS, TEXAS ASSOCIATION OF MEXICAN AMERICAN CHAMBERS OF COMMERCE, TEXAS CENTER FOR EDUCATIONPOLICY AT THE UNIVERSITY OF TEXAS - AUSTIN, TEXAS HISPANICS ORGANIZED FOR POLITICAL EDUCATION, TEXAS PRIVATE SCHOOLS ASSOCIATION, UNIDOSUS. (Attachment: # 1 Exhibits)(eg) (Entered: 08/31/2020)
73 AMICUS BRIEF by EUREKA CITY UNIFIED SCHOOL DISTRICT, FAIRFAX COUNTY PUBLIC SCHOOLS, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT. (Attachment: # 1 Exhibits)(eg) (Entered: 08/31/2020)

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MINUTE ORDER granting amici's 65 Motion for Leave to Appear Pro Hac Vice for Attorney Michael Levin-Gesundheit. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 29, 2020. (lcdlf3) (Entered: 08/29/2020)
MINUTE ORDER granting amici's 66 Motion for Leave to Appear Pro Hac Vice for Attorney Christopher B. Jordan. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 29, 2020. (lcdlf3) (Entered: 08/29/2020)
MINUTE ORDER granting amici's 67 Motion for Leave to Appear Pro Hac Vice for Attorney Kartik S. Madiraju. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 29, 2020. (lcdlf3) (Entered: 08/29/2020)
MINUTE ORDER granting amici's 68 Motion for Leave to Appear Pro Hac Vice for Attorney Neeru Gupta. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 29, 2020. (lcdlf3) (Entered: 08/29/2020)
MINUTE ORDER granting amici's 63 Motion for Leave to Appear Pro Hac Vice for Attorney Kelly M. Dermody. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/files/NextGEN_Tutorial_for_Regi stering_for_E-filing.pdf. So Ordered by Judge Dabney L. Friedrich on August 29, 2020. (lcdlf3) (Entered: 08/29/2020)
MINUTE ORDER. Upon consideration of amicus Southern Education Foundations 58 Unopposed MOTION for Leave to File Amicus Brief, it is hereby ORDERED that the motion is GRANTED. So Ordered by Judge Dabney L. Friedrich on August 29, 2020. (lcdlf3) (Entered: 08/29/2020)
69 MOTION for Leave to File Amicus brief by CENTER FOR LAW AND
EDUCATION (Attachments: # 1 Exhibit Proposed amicus brief)(Weckstein, Paul) (Entered: 08/29/2020)

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70 NOTICE OF PROPOSED ORDER RE: 69 by CENTER FOR LAW AND EDUCATION (Weckstein, Paul) Modified on 8/31/2020 (ztd). (Entered: 08/29/2020)
74 AMICUS BRIEF by SOUTHERN EDUCATION FOUNDATION. (eg) (Entered: 08/31/2020)
71 NOTICE on filing of motion for leave to file amicus brief by CENTER FOR LAW AND EDUCATION re 69 MOTION for Leave to File Amicus brief (Weckstein, Paul) (Entered: 08/31/2020)
MINUTE ORDER. Upon consideration of amicus Center for Law and Education's 69 MOTION for Leave to File Amicus Brief, it is hereby ORDERED that the motion is GRANTED. So Ordered by Judge Dabney L. Friedrich on August 31, 2020. (lcdlf3) (Entered: 08/31/2020)
75 AMICUS BRIEF by CENTER FOR LAW AND EDUCATION. (zrdj) (Entered: 09/01/2020)
76 NOTICE of Appearance by Paige Duggins-Clay on behalf of ARISE ADELANTE, EDUCATION TRUST - TEXAS, EVERY TEXAN, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, MEXICAN AMERICAN SCHOOL BOARD MEMBERS ASSOCIATION, PASTORS FOR TEXAS CHILDREN, TEACH PLUS TEXAS, TEXAS AMERICAN FEDERATION OF TEACHERS, TEXAS ASSOCIATION FOR BILINGUAL EDUCATION, TEXAS ASSOCIATION FOR CHICANOS IN HIGHER EDUCATION, TEXAS ASSOCIATION OF LATINO ADMINISTRATORS AND SUPERINTENDENTS, TEXAS ASSOCIATION OF MEXICAN AMERICAN CHAMBERS OF COMMERCE, TEXAS CENTER FOR EDUCATIONPOLICY AT THE UNIVERSITY OF TEXAS - AUSTIN, TEXAS HISPANICS ORGANIZED FOR POLITICAL EDUCATION, TEXAS PRIVATE SCHOOLS ASSOCIATION (Duggins-Clay, Paige) (Entered: 09/01/2020)
Minute Entry for proceedings held before Judge Dabney L. Friedrich: Motion Hearing held on 9/4/2020 re 36 MOTION for Preliminary Injunction filed by KEISHA GUYTON, MICHELE WILSON, HERBERT BROWN, STEPHEN ENRIGHT, ELISE MCINTOSH, TRACY OCONNOR, DEBORAH JOHNSON, SUSAN BOOK, VILLI PREMPEH, PENELOPE LANTZ, KIMBERLY ROMMEL-ENRIGHT, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, LISA MINGRONE, ADRIENNE GILBY, ABRAHAM CAMEJO, WHITNEY BATTEAST, DENVER COUNTY SCHOOL DISTRICT NO. 1, MARSHA LOPEZ, STAMFORD PUBLIC SCHOOLS, PASADENA UNIFIED SCHOOL DISTRICT, BETH LEWIS, JEANNETTE DIAZ, BRITTANY ALDOUS. Court to take motion under advisement and issue an order from chambers. Court Reporter Sara Wick. (zjch) (Entered: 09/04/2020)

09/04/2020 09/04/2020

77 ORDER granting plaintiffs' 36 Motion for Preliminary Injunction, considered as a motion for expedited summary judgment. See text for details. Signed by Judge Dabney L. Friedrich on September 4, 2020. (lcdlf3) (Entered: 09/04/2020)
78 MEMORANDUM OPINION regarding the plaintiffs' 36 Motion for Preliminary Injunction, considered as a motion for expedited summary judgment. See text for details. Signed by Judge Dabney L. Friedrich on September 4, 2020. (lcdlf3) (Main Document 78 replaced on 9/14/2020) (zjch, ). (Main Document 78 replaced on 9/14/2020) (zjch, ). (Entered: 09/04/2020)

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1:20-cv-01996DLF 3.00

 
 Case 1:20-cv-01996 Document 1 Filed 07/22/20 Page 1 of 59

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 4805 Mount Hope Drive Baltimore, MD 21215,
PENELOPE LANTZ, individually and as next friend of minor child A.C. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
MARSHA LOPEZ, individually and as next friend of minor children M.L. and G.L. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
SUSAN BOOK, individually and as next friend of minor child E.P. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
MICHELE WILSON, individually and as next friend of minor children A.W. and K.W. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
ADRIENNE GILBY, individually and as next friend of minor children C.G. and E.G. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
KIMBERLY ROMMEL-ENRIGHT and STEPHEN ENRIGHT, individually and as next friends of minor child A.E. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
TRACY O’CONNOR, individually and as next friend of minor children C.O., S.O. & M.O. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,

Civil Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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ELISE MCINTOSH, individually and as next friend of minor children H.K. and M.K. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
DEBORAH JOHNSON, individually and as next friend of minor child D.J. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
BETH LEWIS, individually and as next friend of minor children G.L. and M.L. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
JEANNETTE DIAZ, individually and as next friend of minor child T.D. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
BRITTANY ALDOUS, individually and as next friend of minor child J.R. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
ABRAHAM CAMEJO, individually and as next friend of minor children A.P. and S.P. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
KEISHA GUYTON, individually and as next friend of minor child Z.C. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
LISA MINGRONE, individually and as next friend of minor child A.M. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
WHITNEY BATTEAST, individually and as next friend of minor child K.Y. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
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HERBERT BROWN, individually and as next friend of minor child J.B. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
VILLI PREMPEH, individually and as next friend of minor children W.N. and P.N. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
DENVER COUNTY SCHOOL DISTRICT NO. 1 1860 Lincoln Street Denver, CO 80203,
PASADENA UNIFIED SCHOOL DISTRICT 351 South Hudson Avenue Pasadena, CA 91109,
and
STAMFORD PUBLIC SCHOOLS 888 Washington Boulevard Stamford, CT 06901,
Plaintiffs, vs.
ELISABETH “BETSY” D. DEVOS, in her official capacity as the United States Secretary of Education 400 Maryland Avenue, S.W. Washington, D.C. 20202,
and
UNITED STATES DEPARTMENT OF EDUCATION 400 Maryland Avenue, S.W. Washington, D.C. 20202,
Defendants.
Plaintiffs allege as follows:
INTRODUCTION
1. Plaintiffs—public school children and their parents, public school districts, and
the National Association for the Advancement of Colored People (“NAACP”)—bring this action
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to enjoin and then vacate the July 1, 2020 Interim Final Rule (the “Rule”) illegally issued by Defendants Secretary of Education Elisabeth “Betsy” D. DeVos (the “Secretary”) and the United States Department of Education (the “Department”). In this moment of dire need for America’s public schools, the Rule compels public school districts to divert essential CARES Act1 funds for the benefit of private schools or face unlawful limitations on the way that those funds can be spent in public schools—both in direct contravention of the Act. The Rule harms American children and subverts the will of Congress; it cannot stand.
2. On March 27, 2020, in response to a global pandemic that has disrupted every aspect of the economy and placed particular strain on American public schools, Congress enacted the CARES Act. Among other important purposes, the CARES Act appropriated $30.75 billion to help K-12 schools and higher education institutions respond to COVID-19. Over $13.5 billion will be distributed to local public school districts that administer elementary and secondary public schools. School districts have broad flexibility to use the funds to address the extraordinary needs created by the pandemic, the effects of which have been particularly devastating for the nation’s least advantaged students.
3. Recognizing that some private schools serve a small number of lower-income students, Congress instructed school districts to set aside a correspondingly small percentage of CARES Act funds for the benefit of disadvantaged private-school students. Specifically, the CARES Act directs public school districts to calculate the amount to set aside for the benefit of private-school students “in the same manner” as Title I funds are calculated for the benefit of disadvantaged private-school students under the Elementary and Secondary Education Act of 1965 (“ESEA”). Title I funds are indisputably allocated based on the number of local students from low-income families who attend private schools from the district, which number is relatively small. Accordingly, the percentage of CARES Act funds that Congress intended to be set aside for the benefit of private-school students is minimal and focused on children in need.
1 Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (2020) (referred to herein as the “CARES Act” or the “Act”).
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4. Despite the Act’s clear language and express instruction, on April 30, 2020, the Department of Education issued guidance (the “Guidance Document”) purporting to “interpret” how school districts, also known as Local Educational Agencies (“LEAs”), should apportion CARES Act funding for private schools.2 Contrary to the Act’s plain language, the Guidance Document directed LEAs to apportion CARES Act funds for private schools based on the total number of private-school students residing in the district, as opposed to the number of lowincome private-school students. The consequences of the Guidance Document were as obvious as they were severe: if followed, hundreds of millions of dollars in CARES Act funds would have been diverted from public schools to private-school students.
5. The Department’s Guidance Document drew swift backlash from education experts, state officials, and members of Congress from across the United States, all of whom criticized the Department for seeking to divert congressional funding intended for public schools. On May 5, 2020, for example, the Executive Director of the Council of Chief State School Officers published a letter to the Secretary criticizing the Department’s Guidance Document for attempting to funnel “an inequitable amount of funding” under the CARES Act to private schools. Using Orleans Parish in Louisiana as an example, the letter estimated that, if the Department’s guidance were followed, “at least 77% of its CARES formula allocation would be directed to non-public schools.”3 The diversion of CARES Act education funds to private schools was particularly troubling because private schools, unlike public schools, were already eligible for forgivable loans under the Payroll Protection Plan—meaning the Guidance Document would have inexplicably doubled-up federal aid to private schools at the expense of America’s public school students.
2 U.S. Dep’t of Educ., Providing Equitable Services to Students and Teachers in Non-Public Schools Under the CARES Act Programs (Apr. 30, 2020) (hereinafter “Guidance Document”), https://oese.ed.gov/files/2020/06/Providing-Equitable-Services-under-the-CARES-ActPrograms-Update-6-25-2020.pdf. 3 See Letter from Carissa Moffat Miller, Exec. Dir., Council of Chief State Sch. Officers, to Betsy D. DeVos, Sec’y, U.S. Dep’t of Educ. (May 5, 2020), https://ccsso.org/sites/default/files/2020-05/DeVosESLetter050520.pdf.
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6. Ignoring public outcry, on July 1, 2020, the Department dug in its heels and— forgoing the mandated notice-and-comment procedures—published an Interim Final Rule, CARES Act Programs; Equitable Services to Students and Teachers in Non-Public Schools, 85 Fed. Reg. 39,479 (July 1, 2020) (the “Rule”) to purportedly “clarify the requirement in the [CARES Act] that local educational agencies (LEAs) provide equitable services to students and teachers in non-public schools under the Governor’s Emergency Education Relief Fund (GEER Fund) and the Elementary and Secondary School Emergency Relief Fund (ESSER Fund).” Id. The Rule became effective upon its publication in the Federal Register on July 1, 2020. See id.
7. In attempted window-dressing for the unlawful siphoning of public funds for private schools, the Rule now contained a so-called “choice” for public school districts that, in reality, is no choice at all. Under the Rule, LEAs have two options (“Option 1” and “Option 2”):
a. Option 1: Under the default option, an LEA must apportion funds for the benefit of private-school students based on the total number of students attending private schools, rather than the number of low-income students attending private schools, dramatically reducing the funding available to public schools.
b. Option 2: Alternatively, if the LEA wants to maintain the full amount of funding provided by Congress by allocating funding for the benefit of private-school students based on the number of students in poverty, then the LEA must adhere to two severe limitations on the use of the CARES Act funding that were never intended nor authorized by Congress.
i. First, an LEA that chooses Option 2 may not spend any CARES Act funds in any non-Title I schools. By way of background, the current threshold proportion of low-income students required for designation as a Title I school is 40 percent. See 20 U.S.C. § 6314(a)(1)(A). Of course, many public schools serve significant populations of low-income students but are not designated as Title I schools. All of those schools and their students will be excluded from the CARES Act programs under this option. This restriction on spending is plainly irreconcilable with the broad flexibility that Congress has afforded LEAs to use CARES Act funds in any school within their districts, and it has no basis in statute, policy, or reason.
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ii. Second, an LEA that chooses this option may not spend any CARES Act funds such that federal funds would “supplant,” as opposed to “supplement,” traditional state and local funding sources for the program or service. This restriction forbids LEAs from using CARES Act funds to cover preexisting expenditures previously paid with state and local funds—an irrational result, considering that one of the CARES Act’s key purposes is to make up for steep budget shortfalls due to COVID-19. Another express purpose of the CARES Act was to ensure that LEAs “maintain the operation of and continuity of services” as well as continued employment of “existing staff.” CARES Act, § 18003(d), 134 Stat. 566. Indeed, LEAs that receive funds must continue to pay their employees and contractors to the greatest extent possible during the pandemic. See id. Prohibiting LEAs from using the CARES Act funding for these purposes flies in the face of express congressional intent. The Rule’s “supplement, not supplant” restriction is found nowhere in the CARES Act and sharply contradicts its purposes.
8. The Rule, which purports to provide “flexibility,” in fact presents LEAs with an illusory choice: Districts can either (1) forfeit a substantial share of their CARES Act funds for the benefit of private schools, but maintain their congressionally granted discretion for spending what is left; or (2) maintain the full funding intended for public schools under the CARES Act, but give up the ability to serve all of their students and adhere to severe restrictions on how the money can be spent. This is not a “choice,” but rather a coercive set of restrictions intended to illegally divert federal funds from public to private education institutions. The Rule is yet another attempt of many by the Secretary to divert public money away from public schools for the benefit of private school companies and organizations.
9. The Department’s Rule is manifestly illegal. The Department does not have the authority to promulgate administrative rules that interpret—much less amend—the CARES Act’s unambiguous allocation requirements for funds provided to private-school students. Nor does the Department’s generic rulemaking authority enable it to promulgate the Rule. See 20 U.S.C. § 1221e-3. Congress unambiguously dictated the allocation of CARES Act funds for “equitable
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services” in the statute. Congress left no gaps in the statute implicitly justifying rulemaking by the Department, and so the Rule is not entitled to deference by this Court.
10. The Department’s Rule is also arbitrary and capricious for a variety of reasons, including that it takes funds that Congress specifically appropriated for public schools to alleviate their state and local budget crises created by the pandemic, and instead diverts them to benefit privately funded schools, regardless of need. The Department also failed to consider the impact of the Rule on economically vulnerable students and students of color, who are disproportionately represented in public schools and under-represented in private schools.4 Given that the purpose of Title I—which Congress cites in the CARES Act—was to “benefit the youngsters which come from our poorest families,”5 the Department’s failure to consider the needs of the nation’s most vulnerable students during this crisis was arbitrary and capricious.
11. In promulgating the Rule, the Department further ignored the procedural steps required by the Administrative Procedure Act—specifically, by bypassing notice-and-comment proceedings while lacking “good cause” to do so. See 5 U.S.C. § 553(b)(B).
12. The Department’s Rule also violates steadfast separation-of-powers principles enshrined in the United States Constitution and reiterated in Supreme Court case law. It is axiomatic constitutional law that an executive agency may not impose spending conditions on federal funds distributed to the states via legislative rulemaking without congressional authorization. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); see also In re Aiken Cty., 725 F.3d 255, 260 (D.C. Cir. 2013) (“[W]here previously appropriated money is available for an agency to perform a statutorily mandated activity,” separation-of-powers
4 See generally Jongyeon Ee et al., Private Schools in American Education: A Small Sector Still Lagging in Diversity (UCLA Civ. Rights Project Working Paper Mar. 5, 2018) (finding that private-school enrollment in the United States was 68.6% white and students from low-income families make up only 9% of private-school enrollment but over 50% of public-school enrollment), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-anddiversity/private-schools-in-american-education-a-small-sector-still-lagging-in-diversity/EeOrfield-Teitell-Private-School-Report_03012018.pdf. 5 A Bill to Strengthen and Improve Educational Quality and Opportunity in the Nation’s Elementary and Secondary Schools: Hearings on S. 370 Before the Subcomm. on Educ. of the Comm. on Labor and Public Welfare, 89th Cong. 3 (1965) (statement of Senator Wayne Morse).
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principles dictate that “federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress.”). Congress did not authorize the Department to impose the Rule’s conditions for spending CARES Act funds, and in fact prescribed the only conditions for spending those funds in the CARES Act itself. Constitutional separation-of-powers principles forbid the Department from imposing the additional, different conditions in the Rule.
13. Finally, the Department’s Rule violates the Spending Clause of the United States Constitution. See U.S. Const. art. I, § 8. First, Congress did not delegate rulemaking authority to the Secretary to impose spending conditions on CARES Act funds, and it explicitly authorized LEAs to spend those funds on a broad set of expenditures. Second, states applied for CARES Act funding before the Rule was promulgated, thereby entering into a “contract” with the federal government. See Nat’l Fed’n of Indep. Bus. (NFIB) v. Sebelius, 567 U.S. 519, 577 (2012). The Department’s retroactive imposition of spending conditions alters that contract in violation of the Spending Clause. The Rule also coerces LEAs into compliance with the Secretary’s own policy goal of increasing the share of CARES Act funds going to private schools, or else forgo all federal aid to non-Title I schools in their districts and be severely restricted in how the funds can be spent in Title I schools. These spending restrictions put “a gun to the head” of school districts in order to further the Secretary’s policy goals. See id. at 581.
14. The Rule is as immoral as it is illegal. In a moment of crisis—when public school districts are called upon to educate their students in unprecedented circumstances, to protect their students and staff from disease, and to feed families who have been plunged into poverty,6 all with decimated state and local revenues—it is unconscionable for Defendants to siphon away the CARES Act’s desperately needed funds for the benefit of more affluent private-school students. The Rule will most negatively impact students in high-poverty districts; because of long-standing
6 More than two-thirds of the nation’s students who eat school lunches are economically dependent on their school districts to provide the meal. See Bettina Elias Siegel, As Coronavirus Closes Schools, USDA Offers Limited Help to Kids Who Rely on School Meals, CIVIL EATS (updated June 10, 2020), https://civileats.com/2020/03/06/coronavirus-is-closing-schools-hereswhat-it-means-for-millions-of-kids-who-rely-on-school-meals/.
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institutional racism, students of color are disproportionately represented in those schools and

districts, whereas white students are disproportionately enrolled in the private schools to which

the Rule attempts to funnel federal funds. This unlawful diversion will directly impair the

education, health, and safety of low-income students and students of color for the benefit of more

affluent, white, private-school students, further perpetuating institutional racism. Defendants’

actions should be immediately enjoined and the Rule vacated.

JURISDICTION AND VENUE

15. This action arises under the federal Administrative Procedure Act (“APA”), 5

U.S.C. §§ 553, 701–706, and the United States Constitution. This Court has subject-matter

jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1346. The Department’s Rule is a “final agency

action” and thus reviewable under the APA. 5 U.S.C. § 704; see also Career College Ass’n v.

Riley, 74 F.3d 1265, 1268 (D.C. Cir. 1996) (concluding that an interim final rule is a final agency

action within the meaning of the APA, and therefore subject to immediate judicial review).

16. This Court has the authority to issue declaratory relief, injunctive relief, and other

relief pursuant to the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, and the APA,

5 U.S.C. §§ 702, 706.

17. This is a civil action in which Defendants are agencies of the United States or

officers of such an agency. Venue is proper in this Court because Defendants reside in this

district and a substantial part of the events giving rise to this action occurred in this district. See

28 U.S.C. § 1391(e)(1).

THE PARTIES

I.

PLAINTIFFS

18. Plaintiff National Association for the Advancement of Colored People

(“NAACP”) is an American civil-rights organization founded in 1909 to ensure the educational,

political, social, and economic equality of all persons and eliminate all forms of race-based

discrimination. The NAACP has a clear and demonstrable interest in ensuring that federal

education funds under the CARES Act are distributed and spent in support of their intended

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recipients in America’s public schools. The principal address of the NAACP is 4805 Mount Hope Drive, Baltimore, Maryland 21215.
a. The NAACP’s national membership includes numerous individuals who would be irreparably harmed by the Department’s illegal Rule, including many parents of minor children attending Title I and non-Title I public schools in districts that either (1) stand to lose substantially increased amounts of CARES Act funds to private-school students, or (2) will be forced to accept significant restrictions on their use of CARES funds, if the Department’s Rule were enforced. The Rule will disproportionately harm students of color and benefit primarily white students. By way of background, in the 2016–17 school year, enrollment in public schools receiving federal Title I aid was 33% white and 67% students of color. In contrast, private school enrollment was 67% white and 33% students of color. Private schools serve about 10% of all students in the United States, but approximately 1% of all low-income students in the United States.7 Accordingly, the NAACP has a clear and demonstrable interest in ensuring that federal education funds under the CARES Act are distributed to their intended recipients and can be used as needed to serve all public school students, without diversion to majority-white and affluent private-school students.
b. Likewise, as a core part of its mission, the NAACP advocates for racial equality in public education. Its goals include ensuring resource equity by targeting federal funding to the nation’s neediest children; opposing the privatization of public schools; and fighting to ensure adequate state, local, and federal funding of public schools. The NAACP expends considerable resources to train its units and members on proper implementation of the Elementary and Secondary Education Act, and all relevant federal regulations governing funding to the nation’s least-resourced students. The Rule disproportionately impacts students of color, either by decreasing funding for students of color for the benefit of white, affluent private-school
7 National Center for Education Statistics, Racial/Ethnic Enrollment in Public Schools (last updated May 2020), https://nces.ed.gov/programs/coe/indicator_cge.asp#:~:text=In%20fall%202017%2C%20of%20t he,million%20were%20American%20Indian%2FAlaska.
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students; or by restricting the expenditure of funds for students in need. The Rule also forces LEAs to make decisions concerning the distribution of federal funds among and between public schools, in direct contravention of Congressional intent. The NAACP will therefore need to expend a greater portion of its finite resources advocating for equity in CARES Act spending in order to advance its educational mission.
19. Plaintiffs Penelope Lantz, Marsha Lopez, Susan Book, Michele Wilson, Adrienne Gilby, and Kimberly Rommel-Enright and Stephen Enright, individually and as next friends of their minor children, are parents of minor children who are enrolled in non-Title I public elementary and secondary schools administered by local educational agencies that administer both Title I and non-Title I schools. Their children’s schools will lose resources under the Department’s Rule regardless of which budgeting “option” their districts adopt. If their children’s school district follows Option 1 by apportioning funds for the benefit of private schools based on the total number of students attending private schools, rather than the number of low-income students attending private schools, this will reduce the amount of CARES Act funding available to their children’s public schools. If their children’s school district follows Option 2, retaining the full grant amount provided by Congress without diverting additional funds to private schools, then their children’s schools will receive no CARES Act funds.
a. Plaintiff Penelope Lantz and her minor child C.A. live in Washington, D.C. C.A. attends Woodrow Wilson High School, a non-Title I school located within District of Columbia Public Schools (“DCPS”), a district that contains both Title I and non-Title I schools and approximately 108 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, C.A.’s school will either receive no funds or decreased funds, which will result in decreased resources and services for C.A.
b. Plaintiff Marsha Lopez and her minor children M.L. and G.L. live in Bethesda, Maryland. M.L attends Bethesda-Chevy Chase High School, a non-Title I school located within Montgomery County Public Schools (“MCPS”), a district that contains both Title I and non-Title I schools and approximately 183 private schools. G.L. attends Westland Middle School, which is also a non-Title I school located within MCPS. Under the Department’s
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unlawful interpretation of the CARES Act contained in the Rule, M.L. and G.L.’s schools will either receive no funds or decreased funds, which will result in decreased resources and services for M.L. and G.L.
c. Plaintiff Susan Book and her minor child E.P. are from Raleigh, North Carolina. E.P. attends Root Elementary School, a non-Title I school located within Wake County Public School System (“WCPSS”). WCPSS contains both Title I and non-Title I schools and approximately 76 private schools. In addition to the funding necessary for all public school students, E.P. relies on crucial funding for services to which E.P. is entitled under the Individuals with Disabilities Education Act (“IDEA”) to support E.P.’s learning with autism. Prior to the COVID-19 crisis, an independent examination of North Carolina schools conducted at the order of a state court judge found widespread deficiencies in public school funding in the state, including major deficiencies in education for children with disabilities.8 Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, E.P.’s school will either receive no funds or decreased funds, which will result in further decreased resources and services for E.P.
d. Plaintiff Michele Wilson and her minor children A.W. and K.W. are from Cary, North Carolina. A.W. and K.W. both attend Farmington Woods Elementary School, a non-Title I school located within WCPSS. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, A.W. and K.W.’s school will either receive no funds or decreased funds, which will result in decreased resources and services for A.W. and K.W.
e. Plaintiff Adrienne Gilby and her minor children C.G. and E.G. are from Chandler, Arizona. C.G. attends Corona Del Sol High School, a non-Title I school located within Tempe Union High School District, which contains private high schools. E.G. attends Kyrene Traditional Academy, a non-Title I school, which is located within Kyrene School District, where Adrienne also teaches. The Kyrene School District serves Tempe, Chandler, and Phoenix areas and contains private schools. Under the Department’s unlawful interpretation of
8 WestEd, Sound Basic Education for All: An Action Plan for North Carolina (2018), https://www.wested.org/resources/leandro-north-carolina/.
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the CARES Act contained in the Rule, C.G. and E.G.’s schools will either receive no funds or decreased funds, which will result in decreased resources and services for C.G. and E.G.
f. Plaintiff Kimberly Rommel-Enright and Stephen Enright are the parents of minor child A.E. and live in Jupiter, Florida. A.E. is a young adult with significant intellectual disabilities who receives transitional services from Jupiter Community High School, a non-Title I school in the School District of Palm Beach County. SDPBC contains both Title I and nonTitle I schools and approximately 143 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, A.E.’s school will either receive no funds or decreased funds, which will result in decreased resources and services for A.E.
20. Plaintiffs Tracy O’Connor, Elise McIntosh, Deborah Johnson, Beth Lewis, Jeannette Diaz, Brittany Aldous, Abraham Camejo, Keisha Guyton, and Lisa Mingrone, individually and as next friends of their minor children, are parents of minor children who are enrolled in Title I public elementary and secondary schools administered by a local educational agency that administers both Title I and non-Title I schools. Under the Rule, their children’s schools will either lose resources to private schools or be forced to accept severe, unintended restrictions on the way they can spend these funds. If their children’s school districts follow Option 1 by apportioning funds for the benefit of private schools based on the total number of students attending private schools, rather than the number of low-income students attending private schools, this will reduce the funds available to their children’s school. If their children’s schools district retains the full grant amount provided by Congress without diverting additional funds for private schools, then their children’s school will not be able to use CARES Act funds for any services previously provided using state and local funding.
a. Plaintiff Tracy O’Connor and her minor children C.O., S.O., and M.O. are from Memphis, Tennessee. C.O. and S.O. attend East High School, a Title I school, which is located within Shelby County Schools (“SCS”), a district that contains both Title I and non-Title I schools and approximately 80 private schools. M.O. attends Snowden School, a Title I school, which is also located within SCS. Under the Department’s unlawful interpretation of the
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CARES Act contained in the Rule, C.O, S.O and M.O.’s schools will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
b. Plaintiff Elise McIntosh and her minor children H.K. and H.M. are from Memphis, Tennessee. H.M. attends Snowden School, a Title I school within SCS. H.M. receives critical services under Section 504 of the Rehabilitation Act to support H.M.’s multiple exceptionalities, including ADHD and what is currently diagnosed as a sensory processing disorder. H.K. attends Central High, a Title I school located within SCS, and also has a Section 504 education plan. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, H.K. and H.M.’s schools will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
c. Plaintiff Deborah Johnson and her minor child D.J. are from Covington, Georgia. D.J. is on the autism spectrum, and Deborah and D.J. have had to move to find a school that provides D.J. with appropriate services. This fall, D.J. will attend Alcovy High School, a Title I school located within Newton County Schools, a district that contains both Title I and non-Title I schools and at least seven private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, D.J.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
d. Plaintiff Jeannette Diaz and her minor child T.D. are from Decatur, Georgia. T.D. attends Druid Hills High School, a Title I school located within DeKalb County Public Schools. DeKalb County Public Schools contains both Title I and non-Title I schools and approximately 93 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, T.D.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
e. Plaintiff Beth Lewis and her minor children G.L. and M.L. are from Chandler, Arizona. Both children attend Arredondo Elementary School, a Title I school located within Tempe Elementary School District, where Beth also teaches. The district contains both Title I and non-Title I schools and approximately seven private elementary schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, G.L. and M.L.’s
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schools will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
f. Plaintiff Brittany Aldous and her minor child J.R. live in Las Vegas, Nevada. J.R. attends a Title I elementary school administered by Clark County School District (“CCSD”), which contains both Title I and non-Title I schools and approximately 100 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, J.R.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
g. Plaintiff Abraham Camejo and his minor children, A.P. and S.P., live in Clark County, Nevada. A.P. and S.P. attend Rancho High School, a majority-Latinx, Title I school administered by CCSD. Last year, per-pupil funding in CCSD was below the state and national averages.9 Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, A.P. and S.P.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
h. Plaintiff Keisha Guyton and her minor child, Z.C., live in Miami Lakes, Florida. Z.C. is a high school senior at Miami Lakes Educational Center, a Title I school administered by Miami-Dade Public Schools, where Z.C. qualifies for free school lunch. There are private schools in Z.C.’s district. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, Z.C.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
i. Plaintiff Lisa Mingrone and her minor child A.M. are from Nashville, Tennessee. A.M. attends East Nashville Magnet School, a Title I school located within the Metro Nashville Public School district (“MNPS”), which contains both Title I and non-Title I schools and approximately 71 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, A.M.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
9 See Clark County School District, Popular Annual Financial Report for FY Ended June 30, 2019 (2019) 11, http://www.ccsd.net/resources/accounting-department/2019-pafr.pdf.
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21. Plaintiffs Whitney Batteast, Herbert Brown, and Villi Prempeh, individually and as next friends of their minor children, are parents of minor children who are enrolled in Title I public elementary and secondary schools administrated by a local educational agency that administers only Title I schools. Their children’s schools will be forced to accept severe, unintended restrictions on the way they spend their CARES Act Funds.
a. Plaintiff Whitney Batteast and her minor child K.Y. live in Jackson, Mississippi. K.Y. attends Barack H. Obama Magnet Elementary School, a Title I school located within the Jackson Public School District (“JPS”), which is an all-Title I district. K.Y. has an Individualized Education Plan (“IEP”) and relies on two hearing aids. Under the Department’s Rule, K.Y.’s school will be forced to adhere to the Rule’s burdensome supplement-not-supplant provision.
b. Plaintiff Herbert Brown and his minor child J.B. are from Jackson, Mississippi. J.B. attends Bailey APAC Middle School, a Title I school, which is located within JPS. Under the Department’s Rule, J.B.’s school will be forced to adhere to the Rule’s burdensome supplement-not-supplant provision.
c. Villi Prempeh and her minor children W.N. and P.N. live in Union Springs, Alabama. W.N. attends South Highland Middle School, a Title I School located within Bullock County School District (“BCSD”), a majority-Black, all-Title I district. P.N. attends Union Springs Elementary School, a Title I school also located within BCSD. Both W.N. and P.N. are students with disabilities and have Individualized Education Programs (“IEPs”). P.N. also relies on crucial funding from the school to receive speech therapy to meet P.N.’s educational needs. Under the Department’s Rule, W.N. and P.N.’s schools will be forced to adhere to the Rule’s burdensome supplement-not-supplant provision.
22. Plaintiff Denver County School District No. 1, a/k/a Denver Public Schools (“DPS”), is an LEA located in the State of Colorado that operates 224 public primary and secondary schools serving 87,317 children in a district covering the City-County of Denver. Its principal address is 1860 Lincoln Street, Denver, Colorado 80203.
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a. DPS has a demonstrable interest in this litigation and will be directly impacted by the Rule. DPS is a “local educational agency” within the meaning of both the ESEA, see 20 U.S.C. § 7801(30), and the CARES Act, see § 18007(8), 134 Stat. 569, and received Title I-A subgrants in the previous fiscal year. DPS administers 159 Title I schools. The SEA for Colorado has been allocated $120,993,782 from the CARES Act’s ESSER Fund. DPS is eligible to receive $22,908,618 in ESSER funds from the SEA, as well as GEER funds to be determined.
b. The Rule will inevitably and irreparably harm public schools that DPS operates. If the Department’s Rule is not vacated, DPS will have to choose Option 1 in order to maintain the flexibility necessary for the spending of its CARES Act funds. Accordingly, all of its public schools will receive fewer CARES Act funds on a per-pupil basis than they would in the Rule’s absence. There are 7,571 private-school students residing in the district, but only 698 of them (less than 10 percent) were calculated to be from “low-income families” under section 1117(c)(1) of the ESEA, 20 U.S.C. § 6320(c)(1), in the last fiscal year. This means that DPS’s expenditures for the benefit of privates schools under the Department’s Rule will increase by more than ten-fold. Accordingly, DPS has an obvious interest in litigation to vacate the Rule.
c. The Rule’s harm will be disproportionately felt by students of color and low-income students, who are overrepresented in DPS schools. Indeed, over 75% of DPS students are students of color, and approximately 65% of them qualify for free or reduced-price school lunches. DPS has an obvious interest in litigation to maximize the financial resources available to assist its neediest students.
23. Plaintiff Pasadena Unified School District (“Pasadena Unified”) is an LEA located in the State of California that operates 23 public primary and secondary schools serving more than 16,000 children in a district that includes portions of the City of Pasadena, the City of Sierra Madre, and the unincorporated community of Altadena. Approximately 60% of the district’s students meet the poverty guidelines for free or reduced-price school lunches. Likewise, approximately 60% of the students are students of color. Pasadena Unified’s district
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contains more than fifty private schools. Pasadena Unified’s principal address is 351 South Hudson Avenue, Pasadena, California 91109.
a. Pasadena Unified has a demonstrable interest in this litigation and will be directly impacted by the Rule. Pasadena Unified is a “local educational agency” within the meaning of both the ESEA, see 20 U.S.C. § 7801(30), and the CARES Act, see § 18007(8), 134 Stat. 569, and received Title I-A subgrants in the previous fiscal year. The SEA for California has been allocated $1,647,306,127 from the CARES Act’s ESSER Fund. The SEA must allocate a minimum of $1,482,575,514 (i.e., 90%) of those funds for local education agencies that received Title I-A subgrants during the previous fiscal year, including Pasadena Unified. The Rule directly injures Pasadena Unified by restricting how it can spend its share.
b. The Rule will inevitably and irreparably harm the public schools Pasadena Unified operates. In the previous fiscal year, Pasadena Unified’s district contained a mixture of both Title I and non-Title I schools. If Pasadena Unified chooses Option 1, all of its public schools will receive fewer CARES Act funds on a per-pupil basis than they would in the Rule’s absence. If Pasadena Unified chooses Option 2, none of Pasadena Unified’s non-Title I public schools will receive CARES Act funds, and the CARES Act funds for its Title I public schools entail a “supplement, not supplant” restriction that would not exist in the Rule’s absence. Accordingly, Pasadena Unified has an obvious interest in litigation to vacate the Rule.
i. Pasadena Unified received ~$4.6 million in ESSER Funds and ~$15 million in GEER Funds. Before the Department’s Rule was published, Pasadena Unified intended to use its CARES Act funds to cover the costs associated with its nutritional programs and the spike in children and families needing food, to purchase technology software and hardware for distance learning, to make essential physical changes to school facilities to stop the spread of the coronavirus, to pay for supplies and PPE necessary for increased cleaning, and to make up for significant losses in state and local revenues for all of the district’s ordinary expenses.
c. Under section 1117 of the ESEA, Pasadena Unified would set aside 2.1% of these grants for the benefit of private-school students in poverty—or ~$96,000. If Pasadena
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Unified follows Option 1 by apportioning funds for the benefit of private schools based on the total number of students attending private schools, rather than the number of low-income students attending private schools, the district must divert as much as 40% of its CARES Act funds for the benefit of private schools—or ~$8 million. If it chooses Option 2, it will be unable to use its CARES Act funds at five non-Title I schools and will be unable to use CARES Act funs to make up the significant loss in local sales tax and state funding, among other onerous restrictions.
24. Plaintiff Stamford Public Schools (“SPS”) is a public school district located in Stamford, Connecticut. SPS’ principal address is 888 Washington Boulevard, Stamford, Connecticut 06901. SPS serves 16,600 students. The district expects enrollment to increase in the 2020–21 school year as a result of the closure of two local high schools, a charter school and a private school, in the city this year. The SPS student population is 44.5% Latinx, 30% White, 14.5% African-American, 7% Asian and 3% multi-racial. Among SPS students, 59% qualify for free or reduced price lunch, 14% are English Language learners, and 14% are students with disabilities. SPS administers 21 schools, 11 of which are Title I schools. There are 2,035 private school students who reside in Stamford. Only 17 private school students are low-income for the purposes of calculating the set-aside for equitable services pursuant to Title I.
a. SPS has a demonstrable interest in this litigation and will be directly impacted by the Rule. SPS is a “local educational agency” within the meaning of both the ESEA, see 20 U.S.C. § 7801(30), and the CARES Act, see § 18007(8), 134 Stat. 569, and received Title I-A subgrants in the previous fiscal year. The SEA for Connecticut has been allocated $111,068,059 from the CARES Act’s ESSER Fund. The SEA must allocate a minimum of $99,961,253 (i.e., 90%) of those funds for local education agencies that received Title I-A subgrants during the previous fiscal year, including SPS. The Rule directly injures SPS by restricting how it can spend its share.
b. The Rule will inevitably and irreparably harm SPS’ schools. In the previous fiscal year, SPS contained a mixture of both Title I and non-Title I schools. Under the Rule’s first option, all of SPS’s public schools will receive far fewer CARES Act funds on a per-
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pupil basis than they would in the Rule’s absence. If SPS chooses the Rule’s second option, SPS’s non-Title I public schools will receive no CARES Act funds at all, and the CARES Act funds for SPS’s Title I public schools will be subject to a “supplement, not supplant” restriction that would not exist in the Rule’s absence. Accordingly, SPS has an obvious interest in litigation to vacate the Rule.
i. SPS relies on local funds to support over 96% of its operating budget. The State provides less than $500 per pupil annually to SPS through its school funding formula. This year, Stamford’s Board of Finance held the mill rate flat in order to alleviate the financial burden facing the City’s taxpayers caused by the pandemic. As a result, SPS’s budget was reduced and funds to cover the additional costs associated with the pandemic were drastically curtailed. Because of the budget limitations, SPS was forced to cut over $12.5 million in staff, services, and programming, including school counselors, deans of students, all middle and high school media specialists, and kindergarten paraprofessionals.
ii. SPS received a CARES Act allocation of $2.7 million. Before the Department’s Rule was published, the district intended to use these funds districtwide to purchase cleaning supplies and personal protective equipment; expand its contract with the district’s cleaning company; purchase laptops and hot spots to facilitate distance learning; launch targeted support programs for disengaged students; hire Technical Support Specialists for each school building to assist teachers, staff, and students with learning technology; fund technology teachers districtwide; and fund school counselor and dean of students positions that have been lost due to budget cuts.
iii. Under Option 1, SPS must set aside $330,000 for the benefit of private-school students, in contrast to the $20,000 SPS would have to set aside for equitable services under the proper calculation pursuant to Title I. As a result, the district will be forced to forgo spending on Technical Support Specialists, who would fill a critical need for remote learning and to ensure all students are able to use essential technology.
iv. Under Option 2, the district would not be able to use CARES Act funds to provide personal protective equipment and increased cleaning services, technological
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devices and hotspots, Technical Support Specialists, technology teachers, support programs for disengaged students, deans of students, or counselors in its non-Title I schools. Additionally, the district would be prevented from using CARES Act funds to restore any of the other staff, programs, and supplies that have been lost due to the $12.5 million in budget cuts.
II. DEFENDANTS 25. Defendant Elisabeth “Betsy” D. DeVos is Secretary of the United States
Department of Education and is sued in her official capacity pursuant to 5 U.S.C. § 702. Her principal address is 400 Maryland Avenue, S.W., Washington, D.C. 20202.
26. Defendant United States Department of Education is an executive agency of the United States of America pursuant to 5 U.S.C. § 101, and a federal agency within the meaning of 28 U.S.C. § 2671. As such, it engages in agency action and is named as a defendant in this action pursuant to 5 U.S.C. § 702. Its principal address is 400 Maryland Avenue, S.W., Washington, D.C. 20202.
27. Secretary DeVos is responsible for carrying out the duties of the Department of Education under the Constitution of the United States of America and relevant statutes, including the CARES Act and the ESEA.
FACTUAL ALLEGATIONS I. THE CARES ACT
28. The novel Coronavirus Disease 2019 (“COVID-19”) is a deadly, infectious disease caused by severe acute respiratory syndrome coronavirus 2 (“SARS-CoV-2”). The global spread of COVID-19 began in December 2019, and reached the United States in January 2020. By the end of March, cases of COVID-19 had been confirmed in all 50 States and the District of Columbia. As of July 22, 2020, the U.S. had the most confirmed active cases and deaths from COVID-19 in the world, and its case and death counts continue to grow as of the filing of this document. The COVID-19 pandemic has created a public-health emergency with devastating effects on individuals, families, businesses, communities, and local, state, and federal governments.
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29. Educational agencies and school systems have been particularly hard-hit by COVID-19. As of April 10, 2020, nearly all primary and secondary schools nationwide—at least 124,000—closed their physical sites, affecting over 55 million students. Schools have been required to respond to the pandemic by taking drastic measures—including transitioning to remote “distance learning” and providing the technology infrastructure and hardware for students to learn from home, training teachers and providing the necessary resources and support for fully online learning, and providing food and other essential services to families devastated by the economic impacts of the crisis.10 School closures are particularly challenging for children in poverty and others with elevated needs, such as students with disabilities. Many students were without home internet access and devices when the pandemic began, which districts are working to provide. In addition, tens of millions of students rely on free and reduced-price meals at school.11 Districts continue to provide student meals, with the added responsibility of providing food for families as increased numbers of people lose work and are thrown into poverty by the virus.
30. Physically reopening schools will require unprecedented health and safety expenditures, including personal protective equipment (“PPE”), thermometers, cleaning supplies, testing kits, and additional personnel required to maintain the sanitation and distance necessary to reduce the risk of the virus. Schools will also need sufficient staff and programs to address the academic, social, and emotional effects of the pandemic and school closures on students, particularly our most vulnerable students. The Council of Chief State School Officers estimates
10 See Letter of Council of the Great City Schools to U.S. Rep. Nancy Pelosi, U.S. Rep. Kevin McCarthy, U.S. Sen. Chuck Schumer, and U.S. Sen. Mitch McConnell (Apr. 28, 2020) (describing the costs incurred by public school districts throughout the spring), https://www.cgcs.org/cms/lib/DC00001581/Centricity/Domain/4/Coronavirus-Aid%20Letter%20II.pdf. 11 In fiscal year 2018, for example, the National School Lunch Program “provided low-cost or free lunches to 29.7 million children daily.” U.S. Dep’t of Agric., Nat’l School Lunch Program, U.S.D.A. ECON. RESEARCH SERV. (Aug. 20, 2019), https://www.ers.usda.gov/topics/foodnutrition-assistance/child-nutrition-programs/national-school-lunchprogram/#:~:text=In%20fiscal%20year%20(FY)%202018,a%20cost%20of%20%2413.8%20billi on.
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that nationwide, schools will need as much as $245 billion in additional funding to reopen schools safely.12
31. The challenges of responding to COVID-19 are compounded for the nation’s public schools by the severe stress that COVID-19 has inflicted on state and local government budgets. Public education depends primarily on state and local funding. In many states, those funds are chronically inadequate. Prior to the pandemic, many states had not yet restored school funding or staff positions cut during the Great Recession of 2008.13 Moreover, state and local government budgets have been decimated by COVID-19 in the form of reduced sales and income taxes, as well as drastic increases in spending on public health and other safety net programs. According to the National Conference of State Legislatures, almost half the states report at least a 10% decline in revenues in fiscal year 2021, with some declines climbing as high as 30%.14 Some experts project state budget shortfalls totaling $555 billion over the 2020–22 fiscal years.15 Dwindling budgets necessarily leave less funding available for public education. Moreover, school districts must present a balanced budget every year. Because districts cannot run a deficit, if there are inadequate funds to maintain staff, programs and services, school districts must make cuts to educational resources. Nevertheless, public schools continue to incur the normal costs of educating students, as well as substantial novel expenses required for them to do so remotely while school buildings are closed or have hybrid remote/in-person schedules, and safely once schools resume in-person classes.
12 Letter from Carissa Miller, Exec. Dir., CCSSO to Hon. Lamar Alexander, U.S. Sen. (July 24, 2020), https://ccsso.org/sites/default/files/2020-06/HELPLetterFinal.pdf. 13 Sarah Reber & Nora Gordon, Supporting Students and Promoting Economic Recovery in the Time of COVID-19, BROOKINGS INST. (May 7, 2020), https://www.brookings.edu/blog/browncenter-chalkboard/2020/05/07/supporting-students-and-promoting-economic-recovery-in-thetime-of-covid-19/ 14 See generally Nat’l Conf. on State Legis., COVID-19 Revised State Revenue Guidelines (July 7, 2020 update), https://www.ncsl.org/Portals/1/Documents/fiscal/Rev-Projection-Page-DataVisualizations-7.7.20.pdf. 15 Elizabeth McNichol & Michael Leachman, Center on Budget and Policy Priorities, States Continue to Face Large Shortfalls Due to COVID-19 Effects (July 7, 2020 update), https://www.cbpp.org/research/state-budget-and-tax/states-continue-to-face-large-shortfalls-dueto-covid-19-effects.
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32. Congress recognized the devastating financial effects of COVID-19 on the nation’s communities, businesses, and public educational institutions and acted to ameliorate those harms. On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (2020), was signed into law.
33. With respect to educational relief, the CARES Act created a $30.75 billion Education Stabilization Fund to enable public education institutions nationwide to “prevent, prepare for, and respond to coronavirus.” CARES Act § 18001, 134 Stat. 565-566.
34. The CARES Act directs the Secretary of Education to allocate a majority of the moneys appropriated for the Education Stabilization Fund for three separate sub-funds: (1) the Governor’s Emergency Education Relief Fund (“GEER”) (9.8%); (2) the Elementary and Secondary School Emergency Relief Fund (“ESSER”) (43.9%); and (3) the Higher Education Emergency Relief Fund (“HEER”) (46.3%). CARES Act §§ 18001(b)(1)–(3), 134 Stat. 564. Ultimately, $2,953,230,000 was allocated for the GEER Fund16 and $13,229,265,000 was allocated for the ESSER Fund.17
A. Governor’s Emergency Education Relief (“GEER”) Fund 35. The CARES Act provisions governing the GEER Fund direct the Secretary to make emergency relief grants from the Fund “to the Governor of each State with an approved application.” CARES Act § 18002(a), 134 Stat. 564. The statute further directs the Secretary to allocate the “amount of each grant” using the following formula: (1) 60 percent based on the State’s “relative population of individuals aged 5 through 24”; and (2) 40 percent based on the State’s “relative number of children counted under section 1124(c)” of the ESEA. CARES Act § 18002(b), 134 Stat. 564–565. 36. Once the Secretary has made a grant from the GEER Fund to the Governor, the Governor may use the GEER funds for any of three, broad purposes:
16 See U.S. Dep’t of Educ., Governor’s Emergency Education Relief Fund State Allocations Table 1 (2020), https://oese.ed.gov/files/2020/04/GEER-Fund-State-Allocations-Table.pdf. 17 See U.S. Dep’t of Educ., Elementary and Secondary School Emergency Relief Fund State Allocations Table 1 (2020), https://oese.ed.gov/files/2020/04/ESSER-Fund-State-AllocationsTable.pdf.
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a. To “provide emergency support through grants to local educational agencies that the State educational agency deems have been most significantly impacted by coronavirus,” CARES Act § 18002(c)(1), 134 Stat. 565;
b. To “provide emergency support through grants to institutions of higher education serving students within the State that the Governor determines have been most significantly impacted by coronavirus,” CARES Act § 18002(c)(2), 134 Stat. 565; and
c. To “provide support to any other institution of higher education, local educational agency, or education related entity within the State that the Governor deems essential for carrying out emergency educational services to students.” CARES Act § 18002(c)(3), 134 Stat. 565.
37. The CARES Act contains no restrictions on which schools within eligible LEAs may receive GEER funds. For example, LEAs and their schools are eligible to receive GEER funds regardless of whether they also receive Title I funds. Instead, the CARES Act provides broad flexibility to LEAs to simply use such funds “to provide educational services to their students and to support the on-going functionality of the [LEA].” See CARES Act §§ 18002(c)(1), (3), 134 Stat. 565.
B. Elementary and Secondary School Education Relief (“ESSER”) Fund 38. The CARES Act provisions governing the ESSER Fund direct the Secretary to make emergency relief grants from the Fund to “each State educational agency [SEA] with an approved application.” CARES Act § 18003(a), 134 Stat. 565. The statute further directs that the “amount of each grant . . . shall be allocated by the Secretary to each State in the same proportion as each State received under part A of title I of the ESEA of 1965 [“Title I-A”] in the most recent fiscal year.” CARES Act § 18003(b), 134 Stat. 565. The allocation of Title I-A funds to the States is determined by various formulas specified in 20 U.S.C. §§ 6632–6639, and is based primarily on the number of children from low-income families and foster children in each State’s LEAs. 39. Under the CARES Act, at least 90% of ESSER funds received by SEAs must be subgranted to LEAs within the State. CARES Act § 18003(c), 134 Stat. 565. Similar to the
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Secretary’s allocation to the SEAs, the SEAs are required to subgrant those funds to LEAs “in proportion to the amount of funds such [LEAs] . . . received under [Title I-A] in the most recent fiscal year.” Id.
40. Unlike LEAs receiving GEER funds, only LEAs that participate in Title I-A are eligible to receive ESSER funds. LEAs that do not receive Title I-A funds—generally speaking, those with small numbers of low-income students—are ineligible for ESSER funds. However, the CARES Act contains no restrictions on which schools within the eligible LEAs may receive ESSER funds, meaning non-Title I schools within LEAs that receive Title I-A funds may still receive ESSER funds for the low-income students they serve under the CARES Act.
41. In other words, so long as an LEA receives Title I-A funds, the LEA may distribute ESSER funds even to non-Title I schools within its district.
42. The CARES Act authorizes LEAs to use ESSER funds for a broad range of purposes, including (1) any activities authorized under the ESEA and various other federal education statutes; (2) coordination of preparedness and response efforts of LEAs with State, local, Tribal, and territorial public health departments and other relevant agencies; (3) any activities to address the unique needs of low-income and/or disabled students, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth; (4) planning and coordination during long-term closures, including purchases of technology for online distance learning; (5) mental health services and support; and other purposes. See generally CARES Act § 18003(d), 134 Stat. 565–566 (cataloging permissible purposes for ESSER funds).
C. Equitable Services for Private-School Students 43. The crux of Plaintiffs’ suit concerns section 18005(a) of the CARES Act. Section 18005(a) requires that LEAs receiving funds from either the GEER Fund or the ESSER Fund
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allocate some of those funds for the provision of “equitable services” to private-school students within their districts. 134 Stat. 568.18
44. In particular, section 18005(a) unambiguously specifies that LEAs “shall provide equitable services in the same manner as provided under section 1117 of the ESEA of 1965 to students and teachers in non-public schools.” Id. (emphasis added).
45. Under section 1117 of the ESEA, LEAs must allocate a portion of their Title I-A funds to provide equitable services to eligible children and staff at private schools. Section 1117 dictates that LEAs calculate the proportionate share of Title I-A funds to be used for equitable services “based on the number of children from low-income families who attend private schools” and reside in the “participating school attendance areas” (i.e., the geographic area in which children are normally served by a Title I-A school). 20 U.S.C. § 6320(a)(4)(A); see also 20 U.S.C. § 6313(a)(2) (defining “school attendance area”).
46. In other words, the “manner” in which equitable services are provided under section 1117 of the ESEA allocates the proportionate share of federal funds to be used for equitable services based on the number of low-income private-school children. By explicitly incorporating the terms of section 1117’s mandates into the CARES Act, Congress unmistakably dictated that LEAs provide equitable services with CARES Act funds in exactly the same manner as they do with Title I-A funds.
47. By contrast, the ESEA contains a different provision—section 8501—specifying a narrow range of services that SEAs must provide based on the total enrollment of private-school students. See generally 20 U.S.C. § 7881(a)–(b). By selecting the formula specified under section 1117, rather than section 8501, Congress unambiguously directed LEAs to provide
18 Equitable services include: Books, materials, and equipment necessary to implement the Title I program; 2. Extended-day services; 3. Summer programs; 4. Saturday programs; 5. Counseling programs; 6. Computer-assisted instruction (CAI) with noninstructional computer technicians who supervise computer labs, maintain discipline, and escort students to and from class; 7. Home tutoring; 8. Computers and software products; and 9. Take-home computers.
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equitable services under the CARES Act to private-school students based on the number of lowincome private-school students, not the total number of private-school students.
48. Prior to the CARES Act, the Department’s own materials fully acknowledged that “section 1117” allocated funds for equitable services based on private school students in poverty, not the total number of private-school students.19 II. THE DEPARTMENT’S APRIL 30, 2020 GUIDANCE DOCUMENT
49. On April 30, 2020, the Department issued a Guidance Document regarding the CARES Act, entitled Providing Equitable Services to Students and Teachers in Non-Public Schools Under the CARES Act Programs.
50. Without explanation and contrary to the Department’s previous statements about section 1117, the Guidance Document advises LEAs to determine the allocation of CARES Act (GEER and ESSER) funds for equitable services based on the total number of students enrolled in private schools, as opposed to the number of low-income students enrolled in private schools as specified in section 1117 of the ESEA. See Guidance Document at 4, 6.
51. In other words, the Guidance Document discards the calculation formula specified in section 1117 of the ESEA in favor of one resembling the calculation formula in section 8501 of the ESEA. See 20 U.S.C. § 7881(a)–(b). Congress did not incorporate section 8501 of the ESEA into the CARES Act. By adopting the calculation formula of section 8501, the Department not only ignored the clear statutory mandate of Congress in the CARES Act, but also grossly inflated the share of CARES Act funds to be allocated for the benefit of privateschool students in order to advance its own school privatization agenda.
19 U.S. Dep’t of Educ., Title I, Part A of the Elementary and Secondary Education Act of 1965, as Amended by the Every Student Succeeds Act: Providing Equitable Services to Eligible Private School Children, Teachers, and Families – Updated Non-Regulatory Guidance 19 (Oct. 7, 2019) (“The ESEA requires an LEA to determine an accurate count of children from low-income families who attend public and private schools and reside in participating Title I public school attendance areas in order to allocate the proportional share.”), https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-services-guidance100419.pdf.
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52. The Department’s erroneous conclusion in the Guidance Document that “[t]o calculate the proportional share for equitable services under the CARES Act programs, an LEA determines the overall number of children who are enrolled in public schools and non-public schools in the LEA that wish to participate under one or both CARES Act programs,” Guidance Document at 6, was arbitrary and capricious, misstated and misapplied the law as written, and exceeded the Department’s lawful authority delegated by Congress. III. PUBLIC RESPONSE TO THE APRIL 30, 2020 GUIDANCE DOCUMENT
53. The Department’s Guidance Document drew swift criticism from education experts, state education officials, and federal legislators nationwide.
54. On May 5, 2020—less than a week after the Department published the Guidance Document—the Council of Chief State School Officers (“CCSSO”), a nationwide organization of public officials who head SEAs, wrote to the Secretary urging her to align the Department’s guidance with the CARES Act’s requirements for equitable services.20 The CCSSO criticized the Guidance Document for, among other things, transgressing congressional intent “by basing the non-public share [of CARES Act funds] on total enrollments rather than on the number of low-income children living in the LEA and attending non-public schools, as LEAs do every year under Section 1117 [of the ESEA] and are expressly required to do under the CARES Act statute.”21 The CCSSO admonished that the effect of the Guidance Document “would be that non-public schools . . . receive an inequitable amount of funding, much more federal support than Congress intended, or LEAs anticipated[,] based upon the CARES statute.”22 Accordingly, the CCSSO asked the Department to issue new guidance to “advise LEAs to look at the
20 Letter from Carissa Moffat Miller, Exec. Dir., Council of Chief State Sch. Officers, to Betsy D. DeVos, Sec’y, U.S. Dep’t of Educ. (May 5, 2020), https://ccsso.org/sites/default/files/202005/DeVosESLetter050520.pdf. 21 Id. 22 Id.
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percentage of FY2019 Title I funds they set aside for equitable services and apply that percentage to ESSERF funds.”23
55. The Secretary did not respond to the CCSSO’s letter until several weeks later—on May 22, 2020.24 In her response, she flatly refused to clarify the Guidance Document in accordance with the plain text of the CARES Act, and in fact confirmed the Department’s intent to issue a formal rule enshrining the Department’s interpretation in the Guidance Document “in the next few weeks.”25 In the meantime, the Secretary ominously warned that if LEAs “insist on acting contrary to the Department’s stated position” in the Guidance Document, “they should, at minimum, put into an escrow account the difference between the amount generated by the proportional-student enrollment formula and the Title I, Part A formula.”26 The Secretary’s benighted insistence that LEAs place scarce and desperately needed emergency funding into escrow was not only ludicrous in the midst of a global health pandemic, but also clearly inconsistent with Congress’s intent in the CARES Act to expeditiously bestow funding on LEAs to meet their immediate needs.
56. In the weeks following the Department’s publication of the Guidance Document, a host of State education officials also expressed concern that the Guidance Document misinterpreted the CARES Act and, if followed, would inequitably divert significant emergency funding away from public schools. Indeed, some State officials went so far as to affirmatively advise their LEAs to disregard the Guidance Document entirely. For example:
a. On May 7, 2020, Pennsylvania Secretary of Education Pedro A. Rivera wrote to the Department’s Assistant Secretary for Elementary and Secondary Education, Frank
23 Id. 24 Letter from Betsy DeVos, Secy’ of Educ., to Carissa Moffat Miller, Exec. Dir., Council of Chief State Sch. Officers (May 22, 2020), https://ccsso.org/sites/default/files/202006/Secretary%20DeVos%20Response%20to%20Carrisa%20Moffat%20Miller%205%2022%20 20.pdf. 25 Id. 26 Id.
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T. Brogan, urging the Department to clarify the Guidance Document.27 Secretary Rivera correctly observed that “[u]nder the CARES Act statute and [the Department’s] longstanding interpretation of equitable participation,” reservations for equitable services to private schools “are based on the number of low-income children in each participating non-public school in the LEA.”28 He went on to note that the Guidance Document’s advice to “instead base these calculations on the total number of nonpublic students[] is inconsistent with the CARES statute” and with “the fiscal year 2019 Title I-A administration that serves as the basis of CARES Act allocations.”29 Secretary Rivera’s letter also included figures for 18 Pennsylvania school districts in which CARES Act funding supporting private schools would increase by at least 53%, and as much as 4,634%, if the Guidance Document were binding.30
b. On May 12, 2020, Indiana Superintendent of Public Instruction Jennifer McCormick issued a memorandum on behalf of the Indiana Department of Education instructing the State’s LEAs to disregard the Guidance Document and instead “enact[] the CARES Act as written in the law . . . including the provision to administer equitable services according to Sec. 1117 of the [ESEA].”31 Dr. McCormick explained that the State’s decision to ignore the Department’s Guidance Document “ensure[d] that the [CARES Act] funds are distributed according to Congressional intent and a plain reading of the law, which prioritizes communities and schools with high-poverty who are at most risk and in need of additional funds.”32 The
27 Letter from Pedro A. Rivera, Pa. Sec’y of Educ., to Frank T. Brogan, Ass’t Sec’y for Elementary & Secondary Educ., U.S. Dep’t of Educ. (May 7, 2020), https://www.education.pa.gov/ Documents/K12/Safe%20Schools/COVID/CARESAct/Letter%20to%20Secretary%20 Brogan.pdf. 28 Id. 29 Id. 30 Id. 31 Mem. from Jennifer McCormick to Indiana Superintendents, Program Administrators & Treasurers of LEAS, Non-Public School Administrators, Final Language for Equitable Share of CARES Act Funds (May 12, 2020), https://www.doe.in.gov/sites/default/files/news/finallanguage-equitable-share-cares-actfunds.pdf. 32 Id.
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Presidents of the Indiana State Conference and the Greater Indianapolis Branch of the NAACP sent a letter to Dr. McCormick thanking her for rejecting the Guidance Document and instructing LEAs to instead adhere to the text of the CARES Act.33
c. On May 14, 2020, Martha James-Hassan, President of the Maryland Association of Boards of Education, wrote to Benjamin L. Cardin and Christopher J. Van Hollen, the United States Senators from Maryland, requesting their “support and advocacy for immediate action by the [Department] to rescind and revise the guidance issued on April 30, 2020,” the methodology of which “is neither equitable nor in compliance with the controlling federal statute.”34 Dr. James-Hassan cautioned that if the Guidance Document were not rescinded, the Maryland Department of Education would be forced to consider following the State of Indiana and instructing its LEAs to disregard the Guidance Document entirely.
d. On May 14, 2020, the New Mexico Public Education Department issued a memorandum directing State superintendents and charter school leaders “to determine equitable services dollar amounts [of CARES Act funds] based on the number of children from lowincome families in each participating non-public school in the attendance area boundaries of Title I schools within the school district.”35 According to the memorandum, such an approach “aligns with the plain language of the CARES Act and is consistent with long-standing equitable services calculations under Title I criteria, as well as U.S. Department of Education’s (ED) interpretations of the Elementary and Secondary Education Act of 1965 over decades[,] and as
33 Letter from Barbara Bolling-Williams & Chrystal M. Radcliffe, NAACP, to Dr. Jennifer McCormick, Superintendent of Public Instruction (June 8, 2020), https://b9423f67-93b3-44f1ae42-f33e05fe9eb8.filesusr.com/ugd/e80d1a_9d279210e3de46a9aed4f0b3fda7dd7a.pdf. 34 Letter from Martha James-Hassan, Pres., Md. Ass’n of Bds. of Educ., to Sen. Benjamin L. Cardin and Sen. Christopher J. Van Hollen, Jr. (May 14, 2020), https://www.mabe.org/wpcontent/uploads/2020/05/MABE-CARES-Act-Nonpublic-School-Funding-ED-GuidanceConcerns.Letter-to-Sen-Van-Hollen-and-Cardin-5-14-20.pdf. 35 Mem. from Gabriel C. Baca to N.M. State Superintendents and Charter School Leaders, Funds available under Coronavirus Aid, Relief and Economic Security (CARES) Act through the Elementary and Secondary School Education Relief Fund (ESSER), Index 24301 (May 14, 2020), https://webnew.ped.state.nm.us/wp-content/uploads/2020/05/CARES-Act-memo-ESSERFunds-2020-05-14-Final.pdf.
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recently as October 2019.”36 The memorandum affirmatively instructed New Mexico school districts not to follow the Department’s April 30, 2020 Guidance Document because it is “inconsistent with Title I” and its “interpretation of the CARES Act . . . does not align with the State’s reading.”37
e. On May 21, 2020, the Mississippi Department of Education “concluded that the CARES Act section 18005(a) . . . requires Mississippi school districts to calculate the private school equitable share using the ESEA section 1117 method of identifying the ‘lowincome’ qualifying students in public and private schools and dividing the district’s allocated funds proportionally. Contrary guidance issued by the United States Department of Education will not be followed.”38
f. On May 27, 2020, the Maine Department of Education reached the same conclusion that the CARES Act “requires LEAs to make equitable provision to private schools using the Title 1 distribution formula. This is unambiguous in the language of the law . . . which invokes section 1117 of ESEA[,] which is quite specific in the formula and process by which public schools must make the equitable provision. [The Department’s] guidance from April 30, 2020 contradicts the law and the [Department’s] interpretation of the law, as recently as October of 2019.”39
g. On June 8, 2020, the Connecticut State Board of Education issued a statement confirming its position that the Department’s April 30, 2020 Guidance Document was “inconsistent with the plain language of the CARES Act.”40 The Board concluded that it would
36 Id. 37 Id. 38 Mississippi Dep’t of Educ., Cares Act Equitable Services, Miss. Achieves (May 21, 2020), https://msachieves.mdek12.org/cares-act-equitable-services. 39 Me. Dep’t of Educ., CARES Act: Frequently Asked Questions, Me. Dep’t of Educ. Priority Notice (May 27, 2020), https://mailchi.mp/maine/cu5lemq6y0-1321452. 40 Letter from Miguel A. Cardona, Conn. Comm’r of Educ., to Conn. State Superintendents (June 8, 2020), https://portal.ct.gov/-/media/SDE/Digest/2019-20/Equitable-services-under-ESSERFCARES-Act-06082020.pdf.
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be most “appropriate to enact the plain language of the CARES Act and follow the methodology under Title 1, rather than the Guidance [Document].”41 As noted in the Board’s statement, by June 8, “[o]ther state departments of education . . . made similar determinations,” including, but not limited to, departments in D.C., Colorado, Indiana, Maine, Oklahoma, Pennsylvania, South Dakota, and Wisconsin.42
h. On June 25, 2020, the Office of the Superintendent of Public Instruction for the State of Washington issued guidance to LEAs within that State instructing them to use the formula in section 1117 of the ESEA to calculate the proportional share of their CARES Act funds reserved for equitable services to private school children, effectively rejecting the Department’s Guidance Document.43
57. The Guidance Document also drew bipartisan ire from federal legislators who were responsible for passing the CARES Act.
a. On May 20, 2020, Chairman Bobby Scott of the House Committee on Education and Labor; Chairwoman Rosa DeLauro of the House Subcommittee on Labor, Health, Human Services, and Related Agencies; and Ranking Member Patty Murray of the Senate Committee on Health, Education, Labor, and Pensions, wrote the Secretary urging her to “immediately revise [the Department’s] April 30 guidance . . . to come into compliance with the CARES Act and section 1117 of ESEA.”44 The letter chastised the Guidance Document for attempting “to repurpose hundreds-of-millions of taxpayer dollars intended for public school students to provide services for private school students, in contravention of both the plain
41 Id. 42 Id. 43 Wash. Office of Superintendent of Pub. Instruction, ESSER Funds: Questions and Answers 5 (June 25, 2020), https://www.k12.wa.us/sites/default/files/public/communications/ESSER%20Funds%20Q%26A _June%202020.pdf. 44 Letter from Robert C. Scott, Chair, Comm. on Educ. & Labor, U.S. House of Representatives, et al., to Betsy DeVos, Sec’y, U.S. Dep’t of Educ. (May 20, 2020), https://edlabor.house.gov/imo/media/doc/2020-5-20%20Ltr%20to%20DeVos%20re%20 Equitable%20Services.pdf.
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reading of the statute and the intent of Congress.”45 The letter also requested the Department’s internal records related to its development of “its interpretation of the equitable services provision and its inconsistency with long-standing requirements related to equitable services.”46
b. The following day, May 21, 2020, Senator Lamar Alexander of Tennessee, Chair of the Senate Education Committee and a political supporter of the Secretary, reportedly confirmed that he, too, disagreed with the Guidance Document’s interpretation of the CARES Act. “My sense was that the money should have been distributed in the same way we distribute Title I money,” Senator Lamar said. “I think that’s what most of Congress was expecting.”47
c. The Congressional Research Service, a research agency that provides information to Congress, prepared a memorandum analyzing the Secretary’s interpretation of the CARES Act, and found that “a straightforward reading of section 18005(a) based on its text and context suggests that the CARES Act requires LEAs to follow section 1117’s method for determining the proportional share, and thus to allocate funding for services for private school students and teachers based on the number of low-income children attending private schools.”48
58. Despite robust public outcry, the Department declined to clarify, revise, or rescind the Guidance Document. To the contrary, the Department doubled down on the directive, making it not just Guidance, but an enforceable Rule.
45 Id. 46 Id. 47 Laura Meckler, Betsy DeVos defends decision to direct stimulus money to private schools, WASH. POST, May 21, 2020, https://www.washingtonpost.com/local/education/betsy-devosstimulus-private-schools/2020/05/21/d790b926-9b99-11ea-ad09-8da7ec214672_story.html. 48 Congressional Research Service Mem. to House Comm. On Educ. and Labor, Analysis of the CARES Act’s Equitable Services Provision (July 1, 2020) 2, https://blogs.edweek.org/edweek/campaign-k12/CRS%20Analysis%20of%20CARES%20Act%27s%20Equitable%20Services%20Provision %20%282%29.pdf
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IV. THE DEPARTMENT’S RULE 59. On July 1, 2020, the Department published the Rule, in the form of an interim
final rule, entitled CARES Act; Equitable Services to Students and Teachers in Non-Public Schools, 85 Fed. Reg. 39,479 (July 1, 2020), in the Federal Register. Because it is an interim final rule, the Rule became effective immediately upon its publication in the Federal Register rather than after the normal public comment period. See id. The corresponding federal regulations enacted by the Rule are collected under the heading, Providing equitable services to students and teachers in non-public schools, 34 C.F.R. § 76.665 (2020).
A. Enacted Regulations under the Rule 60. The Department’s Rule enacts various regulations purporting to govern how LEAs determine the “proportional share” of CARES Act funds reserved for equitable services to private-school students. See generally 85 Fed. Reg. 39,482–83 (July 1, 2020); 34 C.F.R. § 76.665(c) (2020). 61. In a transparent attempt to create the illusion that the Department was responsive to public criticism of the Guidance Document, the Rule provides LEAs a “choice” that in reality is no choice at all. See 85 Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(1) (“To determine the proportional share of funds for equitable services to students and teachers in nonpublic elementary and secondary schools for each CARES Act program, an LEA must use one of the following measures.”). Both options are contrary to the CARES Act.
a. Option 1: Fewer Public Funds; Spend in Any Schools. An LEA may follow the Guidance document—i.e., apportion CARES Act funds for equitable services based on the total number of students attending private schools, rather than the number of low-income students attending private schools. 85 Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(1)(ii) (“LEA must calculate the proportional share based on enrollment in participating non-public elementary and secondary schools in the LEA compared to the total enrollment in both public and participating non-public elementary and secondary schools in the LEA.”). This Option completely discards the calculation formula specified under section 1117 of the ESEA and explicitly incorporated into the CARES Act. In so doing, Option 1 not only
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ignores the clear statutory mandate of Congress in the CARES Act, but also grossly inflates the

share of CARES Act funds that would be allocated for the benefit of private-school students.

b. Option 2: Intended Amount of Public Funds; Spend Only Title I Schools,

and No Supplanting. Alternatively, the Rule permits an LEA to apportion CARES Act funds for

equitable services based on the number of low-income private-school students, as required under

section 1117 of the ESEA and, by extension, section 18005(a) of the CARES Act. 85 Fed. Reg.

39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(1)(i)(A). However, this option entails two crippling

restrictions on the LEA’s discretion to expend the funds where and how they are most needed.

i.

First, an LEA that chooses Option 2 may not spend any of the

public-school share of its CARES Act funds on any non-Title I schools. 85 Fed. Reg. 39,482

(July 1, 2020); 34 C.F.R. § 76.665(c)(1)(i) (making Option 1 applicable only to “[a]n LEA using

all its funds under a CARES Act program to serve only students and teachers in public schools

participating under Title I, Part A of the ESEA” (emphases added)). This prevents it from using

those funds to address the needs of low-income students in all schools across the district.

ii. Second, an LEA that chooses Option 2 may not spend any of its

CARES Act funds such that federal funds would “supplant,” as opposed to “supplement,”

traditional state and local funding sources for the same educational program or service. 85 Fed.

Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(3) (“An LEA using funds from a CARES Act

program in Title I schools under paragraph (c)(1)(i) of this section must comply with the

supplement not supplant requirement in section 1118(b) of the ESEA.”). This restriction forbids

LEAs from using CARES Act funds to pay for any preexisting educational expenditures

previously funded by state or local dollars—a decidedly head-spinning result, since one of the

CARES Act’s key purposes was to make up for the effects of COVID-19-related state and local

budget shortcomings on public education. Consistent with the CARES Act’s purpose, the

“supplement, not supplant” language is not referenced anywhere in the Act and the section of the

ESEA where the language appears is not cited or referenced in the Act.

62. Altogether, the Rule presents LEAs—and by extension, the public-school students

and parents they serve—with a lose-lose situation: either (1) retain discretion to spend CARES

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Act funds in their public schools as Congress intended, but forfeit a much larger share of those funds to private schools that Congress intended; or (2) minimize the amount of CARES Act funds that are spent in private schools, but forfeit the discretion to determine how and where those funds are spent in public schools. Regardless of which option LEAs choose, public schools, public-school students, and their parents are harmed.
B. The Rule Conflicts with the Plain Language of the CARES Act 63. Neither of the restrictions in Option 2, nor the apportionment calculation in Option 1, appears anywhere in the CARES Act. They were apparently fashioned by the Department to coerce LEAs into apportioning their CARES Act funds under Option 1, because the more LEAs that choose Option 1, the greater the share of federal funds that Congress intended to support public education ends up benefitting private schools. Option 2 works like a poison pill. LEAs that choose Option 2 forfeit their authority to distribute CARES Act funds according to the needs of their districts. LEAs that choose Option 1—and therefore agree to forfeit a greater portion of their CARES Act funds to private schools—at least retain their discretion and avoid the burden of Option 2’s “supplement, not supplant” requirement. 64. Not only do the Rule’s provisions for apportioning and spending CARES Act funds appear nowhere in the CARES Act, they conflict with its plain language. 65. First, the provision of the Rule requiring LEAs to apportion CARES Act funds for equitable services based on the total number of students attending private schools, rather than the number of low-income students attending private schools, see 34 C.F.R. § 76.665(c)(1)(ii)—i.e., Option 1—is unlawful because Section 18005(a) of the CARES Act clearly dictates that LEAs “shall provide equitable services in the same manner as provided under Section 1117 of the ESEA of 1965 to students and teachers in non-public schools.” 134 Stat. 568 (emphasis added). Section 1117 dictates that LEAs must calculate the proportional share of Title I-A funds to be used for equitable services “based on the number of children from low-income families who attend private schools” and reside in the “participating school attendance area” (i.e., the geographic area in which children are normally served by a Title I-A school). 20 U.S.C. § 6320(a)(4)(A) (emphasis added); see also 20 U.S.C. § 6313(a)(2) (defining “school attendance
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area”). By explicitly incorporating the terms of section 1117’s mandates into the CARES Act, Congress unmistakably instructed LEAs to apportion CARES Act funds for equitable services in exactly the same manner as they do with Title I-A funds. The Rule’s inexplicable directive for LEAs to apportion CARES Act funds based on the total population of private-school students, as opposed to low-income private-school students, is irreconcilable with congressional intent and has no basis in statute, policy, or reason.
66. Second, the provision of the Rule requiring LEAs to limit their spending of CARES Act funds to Title 1 schools if they choose Option 2 unlawfully restricts LEAs’ discretion to spend CARES Act funds wherever the need for them is greatest. See, e.g., CARES Act § 18003(d)(3), 134 Stat. 566 (authorizing LEAs’ use of ESSER funds for any activities providing principals and school leaders with whatever “resources necessary to address the needs of their individual schools”). The CARES Act expressly guarantees that LEAs in receipt of CARES Act funds will retain flexibility to use those funds in any and all of the public schools within the LEA—not simply in their Title I schools. See CARES Act §§ 18002(c)(1), (3), 18003(d)(1)–(12), 134 Stat. 564–67. The Rule’s conditional restriction of CARES Act funds to Title I schools is irreconcilable with the statutory text and congressional intent and has no basis in policy or reason.
67. Third, Option 2 unlawfully imposes a “supplement, not supplant” requirement. This conditional restriction effectively prohibits LEAs from using CARES Act funds for purposes that Congress explicitly intended them to be used in the CARES Act, including to retain existing staff and maintain existing educational services in the midst of an urgent crisis. See, e.g., CARES Act § 18003(d)(12), 134 Stat. 566-567 (authorizing use of ESSER Fund grants for any “activities that are necessary to maintain the operation of and continuity of services in [LEAs] and continuing to employ existing staff of the [LEA]”); see also CARES Act § 18002(c)(1), 134 Stat. 565 (authorizing use of GEER Fund grants “to support the ability of . . . [LEAs] to continue to provide educational services to their students and to support the on-going functionality of [LEA]”). The Rule’s conditional restriction of CARES Act funds to “supplement,” but not “supplant,” state and local funding sources appears nowhere in—and
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blatantly conflicts with—the plain text of the CARES Act. In fact, the Rule explicitly concedes that the “supplement, not supplant” restriction actually appears in section 1118(b)(2) of the ESEA—a provision of the ESEA that is cited nowhere in the CARES Act. See 85 Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(3). As such, this restriction in Option 2 of the Rule is irreconcilable with congressional intent and has no basis in statute, policy, or reason.
68. Indeed, the Department has explicitly acknowledged that “Congress . . . intended that grantees have substantial flexibility in the use of these [CARES Act] dollars.”49 Nevertheless, the Department’s Rule arbitrarily imposes unreasonable restrictions on LEAs under Option 2 that hamper the LEAs’ flexibility to use CARES Act funds to meet their schools’ needs.
69. Under either Option 1 or Option 2, the Rule ensures the diversion of CARES Act funds away from their intended purpose—broad-based relief for America’s public schools and students.
a. Under Option 1, millions of public-school students will see their districts retaining fewer CARES Act funds on a per-pupil basis than they would if the CARES Act allocations for equitable services for private-school students were calculated in accordance with section 1117 of the ESEA as Congress intended. For example, Pasadena Unified will lose almost $8 million dollars of their CARES Act funding to private schools under Option 1.
b. Under Option 2, all public-school students attending non-Title I schools, many of whom will undoubtedly be low-income or otherwise in need of increased resources, including students with disabilities and English language learners, will be in schools that receive zero CARES Act funds. Instead, the ESSER and GEER Funds that Congress specifically designed to assist all public schools in LEAs that receive CARES Act funds will benefit only a
49 Letter from Mitchell M. Zais, Deputy Sec’y, U.S. Dep’t of Educ., to Gene Dodaro, Comptroller Gen., U.S. Gov’t Accountability Office (June 12, 2020) 3 (available as pp. 375–89 of the U.S. Gov’t Accountability Office, COVID-19 Opportunities to Improve Federal Response and Recovery Efforts, GAO-20-625 (June 2020), available at https://www.gao.gov/products/GAO-20-25).
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subset of those schools. And for public-school students in Title I schools that do receive CARES Act funds under Option 2, the permissible uses of those funds are severely restricted.
C. The Department Lacks Any Authority to Issue the Rule 70. The Department had no authority to issue the Rule. The Department credits two provisions of federal law—20 U.S.C. § 1221e-3 and § 3474—as conferring rulemaking authority upon the Secretary with respect to the CARES Act. See 85 Fed. Reg. 39,481 & 39,488 (July 1, 2020). Neither statute authorizes the Department’s promulgation of this Rule.
a. The first statute, 20 U.S.C. § 1221e-3, confers a general rulemaking authority on the Secretary only to the extent necessary “to carry out functions otherwise vested in the Secretary by law or by delegation of authority pursuant to law, and subject to limitations as may be otherwise imposed by law.” Id. (emphasis added). But because the CARES Act unambiguously prescribes the formula for LEAs to allocate the portion of their CARES Act funds reserved for the provision of equitable services to private-school students, the statute in no way “vest[s] in the Secretary” nor “delegate[s]” to the Secretary any “authority” whatsoever to prescribe the additional conditions or different formula in the Department’s Rule.
b. Similarly, the second statute, 20 U.S.C. § 3474, only authorizes the Secretary to prescribe rules and regulations to the extent “necessary or appropriate to administer and manage the functions of the Secretary or the Department.” Id. Again, because the CARES Act unambiguously prescribes the formula for LEAs to allocate the portion of their CARES Act funds reserved for the provision of equitable services to private-school students, the Department’s Rule was neither “necessary” nor “appropriate” to carrying out the functions of the Secretary or of the Department.
71. In the CARES Act itself, Congress delegated no authority, express or implied, to the Secretary or the Department to issue rules or regulations interpreting the CARES Act generally, nor with regard to the GEER and/or ESSER Funds or the distribution of appropriated funds for equitable services to private-school students in particular.
72. The Department further failed to articulate even a reasonable—much less persuasive—justification for the provisions of the Rule that Plaintiffs challenge.
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a. The Department claims, citing no authority, that “[n]othing in the CARES Act suggests Congress intended to differentiate between students based upon the public or nonpublic nature of their school with respect to eligibility for relief.” 85 Fed. Reg. 39,479 (July 1, 2020). The Department blindly overlooks the fact that section 18005(a) of the CARES Act explicitly incorporates section 1117 of the ESEA, and section 1117 of the ESEA in fact does differentiate between public- and private-school students in a number of respects.
b. The Department purportedly justifies its ultra vires promulgation of the Rule by characterizing section 18005(a) of the CARES Act as “facially ambiguous.” 85 Fed. Reg. 39,481 (July 1, 2020). The Department’s only explanation as to why § 18005(a) is “facially ambiguous” is that “Congress did not need to add the words ‘in the same manner’ if it simply intended to incorporate ‘section 1117 of the ESEA of 1965’ by reference in the CARES Act. The unqualified phrase ‘as provided in’ alone would have been sufficient.” Id. Unsurprisingly, the Department cites no authority even suggesting that when one congressional statute incorporates another using more words than are strictly necessary, the former statute somehow becomes “facially ambiguous.”
c. The Department observes that “Congress included a separate consultation requirement in section 18005(a) of the CARES Act, and a public control of funds provision in section 18005(b), notwithstanding the fact that section 1117 [of the ESEA] contains precisely parallel provisions.” Id. From there, the Department “reasons” that “[i]f Congress intended to incorporate ‘section 1117 of the ESEA of 1965’ wholesale into the CARES Act, and to have the Department mechanistically apply it, then these provisions in sections 18005(a) and (b) must be deemed superfluous and other key CARES Act text ignored.” Id. This argument is nonsensical in numerous respects—including, but not limited to, the following:
i. Contrary to the Department’s representations, the “consultation” and “public control” provisions of section 1117 are absolutely not—and much less “precisely”— “parallel” to sections 18005(a) and 18005(b) of the CARES Act. For example, section 1117 of the ESEA contains at least 30 subparagraphs defining and describing the legally required “consultation” process under Title I, see generally 20 U.S.C. § 6320(b); in contrast, section
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18005(a) of the CARES Act simply directs LEAs to allocate funds for the provision of equitable services to private-school students in the same manner as section 1117, “as determined in consultation with representatives of non-public schools,” see CARES Act § 18005(a), 134 Stat. 568 (emphasis added). The CARES Act’s provisions that make passing references to “consultation” or “public control” are in no way rendered “superfluous” by the painstakingly more detailed provisions defining “consultation” and “public control” in section 1117 of the ESEA. On the contrary, those provisions are entirely consistent.
ii. Even assuming that passing statutory references to “consultation” and “public control” in the CARES Act were rendered “superfluous” by the consultation and public control provisions in section 1117 of the ESEA, the Department apparently and illogically assumed that if any provision of section 1117 is not “incorporate[d] . . . wholesale” into the CARES Act, then no provision of section 1117 is “incorporate[d] . . . wholesale” into the CARES Act. See 85 Fed. Reg. 39,481 (July 1, 2020). That is absurd. The Department overlooks that no provision of the CARES Act contradicts, renders superfluous, or even speaks to the formula for calculating the share of federal funds that LEAs must reserve for equitable services to private-school students under section 1117 of the ESEA—except for section 18005(a) of the CARES Act, which unambiguously prescribes that the proportional share be calculated “in the same manner” as that very formula. CARES Act § 18005(a), 134 Stat. 568 (emphasis added). ). Section 1117, in turn, unambiguously specifies a formula based on the number of low-income private-school students, not the total number of private-school students, in an LEA. Whatever ambiguities the Department can rightfully point to in the CARES Act, the formula for equitable services is not one of them.
d. The Department breezily concludes that “[b]y definition, the provisions in section 1117 relating to funding and eligibility for services, e.g., section 1117(a)(1) and (4) and (b)(1)(E) and (J)(ii) [of the ESEA], are inapposite in a CARES Act frame.” 85 Fed. Reg. 39,481 (July 1, 2020). But the Department does not specify what “definition” it is that makes those provisions inapposite, “[b]y definition.” Instead, the Department declares by fiat that “the CARES Act is a separate appropriation allowing separate permissible uses of taxpayer funds”
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than section 1117 of the ESEA permits. 85 Fed. Reg. 39,481 (July 1, 2020). As detailed above, there is neither statutory, nor legislative-historical, nor logical support for that conclusion.
73. Finally, the Department failed to credibly demonstrate that it had the authority to issue the Rule as an interim final rule. An interim final rule is permissible only “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that” public notice-and-comment proceedings were “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b). The Department plainly lacked “good cause.” The Department’s justification was that “the statute requires an LEA to provide services for students and teachers in non-public schools that are equitable in comparison to services provided to public school students and teachers,” but an “LEA cannot begin services for public or non-public school students and teachers without consulting on determining the amount of funds available for those services,” and hence the “national emergency” of COVID-19 required that the Department tell them how to determine the amount. 85 Fed. Reg. 39,483 (July 1, 2020). But Congress already told LEAs exactly how to determine the amount: by using the formula in section 1117 of the ESEA. There was no cause, much less “good cause,” for an interim final rule.
74. For the foregoing reasons, the Rule is unlawful and must be vacated. See Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“We have made clear that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated.’” (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n. 21 (D.C. Cir. 1989))); see also O.A. v. Trump, 404 F. Supp. 3d 109, 118 (D.D.C. 2019) (prescribing “vacatur—i.e., nullification—of [an] Interim Final Rule” as the proper remedy upon concluding that the interim final rule was unlawful). V. THE RULE WILL CAUSE IMMEDIATE AND IRREPARABLE HARM TO PLAINTIFFS
75. The Rule will cause immediate and irreparable harm to Plaintiffs, all of whom have a demonstrable interest in ensuring that CARES Act funds serve their intended recipients.
76. As detailed above, Plaintiffs—who are public school students and parents, LEAs, and the NAACP—will each be irreparably harmed by the Rule.
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77. If an LEA chooses the Rule’s Option 1, the LEA will forfeit substantial funds Congress intended it to receive, impeding its ability to provide safe and effective instruction and essential services to the plaintiff public school children. If an LEA chooses Option 2, then plaintiff students in non-Title I schools will receive nothing, and the expenditure of CARES Act funds will be severely restricted in Title I schools, denying plaintiff Title I school students important resources that state and local funds are no longer sufficient to cover.
78. The Rule will most negatively impact students in under-resourced schools in high-poverty districts. Students of color are disproportionately represented in these underresourced schools and districts, whereas white and/or affluent students are disproportionately enrolled in the private schools to which the Rule attempts to funnel federal funds. Permanently impairing the education and well-being of our most disadvantaged students during a public health crisis is unconscionable and must be averted.
CAUSES OF ACTION COUNT 1
Ultra Vires Agency Action in Violation of Constitutional Separation-of-Powers 79. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 80. Article I, section 1 of the United States Constitution specifies that “[a]ll legislative Powers herein granted shall be vested in [the] Congress of the United States.” 81. The authority of the executive branch, including executive agencies, to act “must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952); see also Clinton v. City of New York, 524 U.S. 417, 438 (1998) (“[N]o provision in the Constitution . . . authorizes the President to enact, to amend, or to repeal statutes.”). 82. An executive agency acts ultra vires when it acts in excess of its statutory authority conferred by Congress. 83. Section 18005(a) of the CARES Act requires LEAs to calculate the proportionate share of CARES Act funds reserved for the provision of equitable services to private-school
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students “based on the number of children from low-income families who attend private schools.” See CARES Act § 18005(a), 134 Stat. 568 (incorporating by reference 20 U.S.C. § 6320(a)(4)(A)).
84. The regulations promulgated by the Department’s Rule are ultra vires and violate the constitutional principles of separation-of-powers in several respects:
a. There is no provision of the CARES Act, nor of any other federal law, permitting LEAs to apportion CARES Act funds for the provision of equitable services to private-school students based on the total number of students attending private schools, rather than the number of low-income students attending private schools. Accordingly, 34 C.F.R. § 76.665(c)(1)(ii) is ultra vires.
b. There is no provision of the CARES Act, nor of any other federal law, requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools. Accordingly, 34 C.F.R. § 76.665(c)(1)(i) is ultra vires.
c. There is no provision of the CARES Act, nor of any other federal law, requiring LEAs to calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule embodied in section 1118(b) of the ESEA. Accordingly, 34 C.F.R. § 76.665(c)(3) is ultra vires.
85. By unilaterally imposing its interpretations of the CARES Act via the Rule that are contrary to the above, Defendants unconstitutionally usurped Congress’s legislative power in violation of the constitutional principle of separation-of-powers.
86. Absent declaratory and injunctive relief suspending and vacating these regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
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COUNT 2 Violation of the Spending Clause of the U.S. Constitution 87. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 88. Article I, section 8 of the United States Constitution (the “Spending Clause”) states that “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” 89. The federal government may not impose conditions on spending that (1) are so coercive that they compel, rather than encourage, the recipient to comply with federal policy priorities; (2) are ambiguous; (3) are retroactive; or (4) are unrelated to the federal interest in the particular program. NFIB, 567 U.S. at 575–78; South Dakota v. Dole, 483 U.S. 203, 206–08 (1987). 90. Congress has not delegated any authority to the Department to impose spending requirements on the allocation and/or use of GEER or ESSER Fund monies. 91. To the extent that Congress has delegated any authority to the Department to undertake rulemaking regarding the use of GEER or ESSER Fund monies, the Rule violates the Spending Clause. 92. The Department’s interpretation of Section 18005 of the CARES Act, as codified in the Rule, violates the relatedness requirement under the Spending Clause because it is contrary to Congress’s plainly expressed intent in the CARES Act to require SEAs and LEAs to follow Section 1117 of the ESEA when apportioning CARES Act funds for equitable services. 93. The Rule also violates the requirement that conditions on the spending of federal funds must be made “unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Congress did not unambiguously impose a requirement that LEAs calculate and set aside GEER and ESSER Fund monies for equitable services to all private-school students and teachers or else limit their use of GEER and ESSER Fund monies to Title I schools; indeed, Congress unambiguously did the opposite.
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94. Finally, the Department’s Rule imposed improper “post-acceptance” restrictions on the uses of federal funds. Id. at 17, 25. States—and by extension, LEAs that applied for funding, including Plaintiffs DPS, Pasadena Unified, and SPS—could not “knowingly accept conditions of which they [were] ‘unaware’ or which they [were] ‘unable to ascertain.’” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (quoting Pennhurst, 451 U.S. at 17). Because the Department’s Rule imposed “retroactive” conditions on congressionally appropriated funds, Defendants have violated the Spending Clause. Pennhurst, 451 U.S. at 25; see also NFIB, 567 U.S. at 585.
95. The States in which Plaintiffs reside did not know of the Department’s unlawful interpretation at the time they applied for and received emergency aid grants from the GEER and ESSER Funds. The States in which Plaintiffs reside signed Certification agreements attesting to the requirements under the CARES Act. Plaintiffs DPS, SPS, and Pasadena Unified likewise applied to their SEAs for subgrants pursuant to the terms and conditions of the CARES Act. Therefore, the States and LEAs were unable to exercise their choice knowingly, cognizant of the consequences of their participation. See Sch. Dist. v. Sec’y of the United States Dep’t of Educ., 584 F.3d 253, 262 (6th Cir. 2009) (finding that plaintiff school districts had standing to bring suit against the Department of Education under the Spending Clause over certain provisions in the No Child Left Behind Act).
96. Absent declaratory and injunctive relief suspending and vacating the Rule, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 3 Violation of the Administrative Procedure Act:
Agency Action Not in Accordance with Law 97. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
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98. The APA requires that a court hold unlawful and set aside any agency action, findings, and conclusions that are found to be in excess of statutory authority or not in accordance with law. 5 U.S.C. § 706(2)(A), (C).
99. The following regulations promulgated via the Department’s Rule are not in accordance with law, including duly enacted federal statutes and the Constitution of the United States of America:
a. 34 C.F.R. § 76.665(c)(1)(ii). Directing LEAs to apportion CARES Act funds for the provision of equitable services to private-school students based on the total number of students attending private schools, rather than the number of low-income students attending private schools, conflicts with the plain text of the CARES Act and represents an unconstitutional condition on spending in violation of Article I, section 8 of the United States Constitution.
b. 34 C.F.R. § 76.665(c)(1)(i). Requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools conflicts with the plaint text of the CARES Act and represents an unconstitutional condition on spending in violation of Article I, section 8 of the United States Constitution.
c. 34 C.F.R. § 76.665(c)(3). Requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule embodied in section 1118(b) of the ESEA conflicts with the plain text of the CARES Act and represents an unconstitutional condition on spending in violation of Article I, section 8 of the United States Constitution.
100. Absent declaratory and injunctive relief suspending and vacating these regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
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COUNT 4 Violation of the Administrative Procedure Act: Agency Action in Excess of Statutory Authority 101. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 102. The APA requires that a court hold unlawful and set aside any agency action, findings, and conclusions that are found to be in excess of statutory authority or not in accordance with law. 5 U.S.C. § 706(2)(A), (C). 103. Congress did not authorize the Department to interpret or make rules regarding section 18005 of the CARES Act. In particular, the following regulations promulgated via the Rule are unauthorized by and contrary to section 18005 of the CARES Act: a. 34 C.F.R. § 76.665(c)(1)(ii). There is no provision of the CARES Act, nor of any other applicable federal law, directing LEAs to apportion CARES Act funds for the provision of equitable services to private-school students based on the total number of students who attend private schools, rather than the number of low-income students who reside in the district and attend private schools. b. 34 C.F.R. § 76.665(c)(1)(i). There is no provision of the CARES Act, nor of any other federal law, requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools. c. 34 C.F.R. § 76.665(c)(3). There is no provision of the CARES Act, nor of any other federal law, requiring LEAs to calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule deriving from section 1118(b) of the ESEA.
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104. Absent declaratory and injunctive relief suspending and vacating these regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 5 Violation of the Administrative Procedure Act:
Arbitrary and Capricious Agency Action 105. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 106. The APA requires that a court hold unlawful and set aside any agency action, findings, and conclusions found to be arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A). 107. An agency’s rule is arbitrary and capricious if the agency has “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 108. Defendants failed to consider the impact of the Department’s Rule on economically vulnerable students, and students of color in particular, who are disproportionately represented in public schools and under-represented in private schools. Yet the express purpose of Title I of the ESEA was to achieve educational equity for these precise populations. By allocating ESSER Funds—the larger of the two funds dedicated to K-12 schools under the CARES Act’s Education Stabilization Fund—according to state and district Title I funding allotments, and by further instructing LEAs to calculate expenditures for equitable services in the same manner as they calculate such expenditures under Title I, section 1117, Congress made very clear its intention to center federal COVID-19 response and relief funds around students with the highest demonstrated need. Defendants’ failure to consider the obvious fact that
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inadequately funded public schools will bear the brunt of the nation’s fiscal crisis was arbitrary and capricious.
109. Defendants failed to consider the impact of the Department’s Rule on students who attend non-Title I schools in districts that serve primarily Title I schools.
110. Defendants failed to consider the impact of the Department’s Rule on school districts that serve only Title I schools, who cannot choose between these two budgeting options and will necessarily be bound by the Rule’s burdensome supplement-not-supplant mandate.
111. Defendants entirely failed to consider the administrative burden on LEAs, which must now dedicate precious time and resources to understand the impact on their district under Options 1 and 2, and then make an unlawful and unreasonable choice between retaining their full amount of federal funding or serving all of their public-school students equitably.
112. Defendants instead seem to have foregrounded the needs of private schools—who are undoubtedly facing their own set of challenges in light of COVID-19—even though Congress did not include the unique interests of private schools generally in the text of the CARES Act. In fact, Congress expressly instructed LEAs to set aside only that portion of their CARES Act funds sufficient to meet the needs of disadvantaged children who attend private schools.
113. Specifically, the following regulations promulgated by the Department’s Rule are arbitrary and capricious:
a. 34 C.F.R. § 76.665(c)(1)(ii). Requiring LEAs to apportion CARES Act funds for the provision of equitable services to private-school students based on the total number of students attending private schools, rather than the number of low-income students attending private schools, if they share their funds with non-Title I schools relies on factors which Congress has not intended the Department to consider, entirely fails to consider an important aspect of the problem, offers an explanation for a decision that runs counter to the evidence before the agency, and/or is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.
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b. 34 C.F.R. § 76.665(c)(1)(i). The Department’s dictate requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools relies on factors which Congress has not intended the Department to consider, entirely fails to consider an important aspect of the problem, and offers an explanation for a decision that runs counter to the evidence before the agency, and/or is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.
c. 34 C.F.R. § 76.665(c)(3). The Department’s dictate requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule embodied in section 1118(b) of the ESEA relies on factors which Congress has not intended the Department to consider, entirely fails to consider an important aspect of the problem, and offers an explanation for a decision that runs counter to the evidence before the agency, and/or is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.
114. Absent declaratory and injunctive relief suspending and vacating these regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 6 Violation of the Administrative Procedure Act: Agency Action Without Observance of Procedure Required by Law 115. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 116. The APA requires that a court hold unlawful and set aside any agency action, findings, and conclusions found to be without observance of procedure required by law. 5 U.S.C. § 706(2)(D).
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117. In order to promulgate a legislative rule bearing the force of law, an executive agency must first publish a “[g]eneral notice of proposed rulemaking” in the Federal Register. 5 U.S.C. § 553(b). The agency must describe “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” Id. § 553(b)(3). This procedural requirement is generally referred to as the “notice” requirement.
118. Furthermore, the agency must provide “interested persons” with the “opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” Id. § 553(c). This requirement is referred to as “comment.”
119. The Department’s Rule is a legislative rule that was adopted without complying with the APA’s notice-and-comment requirements.
120. The Department’s Rule was issued as an interim final rule—meaning it became effective and binding on LEAs the day it was published in the Federal Register. However, the Department failed to establish “good cause” to bypass notice-and-comment because rulemaking was neither impracticable nor contrary to the public interest. See 5 U.S.C. § 553(b).
121. Absent declaratory and injunctive relief suspending and vacating the Rule and its regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 7 Declaratory Relief 122. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 123. Plaintiffs contend that: a. The Department’s Rule requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools, see 34 C.F.R. §
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76.665(c)(1)(i), is unlawful because it conflicts with the plain text of the CARES Act and

violates the United States Constitution and federal Administrative Procedure Act.

b. The Department’s Rule requiring LEAs that calculate their proportionate

share of CARES Act funds reserved for the provision of equitable services to private-school

students “based on the number of children from low-income families who attend private schools”

to abide by the “supplement, not supplant” rule embodied in section 1118(b) of the ESEA, see 34

C.F.R. § 76.665(c)(3), is unlawful because it conflicts with the plain text of the CARES Act and

violates the United States Constitution and federal Administrative Procedure Act.

c. The Department’s Rule permitting LEAs to apportion CARES Act funds

for the provision of equitable services to private-school students based on the total number of

students attending private schools, rather than the number of low-income students attending

private schools, see 34 C.F.R. § 76.665(c)(1)(ii), is unlawful because it conflicts with the plain

text of the CARES Act and violates the United States Constitution and federal Administrative

Procedure Act.

124. As laid out in Defendants’ justification for the Rule, Defendants dispute

Plaintiffs’ contentions.

125. An actual controversy now exists between Plaintiffs and Defendants.

126. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration of their

“rights and other legal relations,” id., consistent with the above.

PRAYER FOR RELIEF

127. WHEREFORE, Plaintiffs request that this Court enter judgment in their favor

and grant the following relief:

a.

Declare the Rule unlawful within the meaning of 5 U.S.C. § 706(2)(A),

(C), and (D);

b. Preliminarily and permanently enjoin the Department and any and all of

its officers, employees, and/or agents from applying and/or enforcing the Rule or any version

thereof;

c. Vacate and set aside the Rule and all versions thereof;

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and e. Grant such other and further relief as the Court deems just and proper.
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Dated: July 22, 2020

Respectfully submitted,
MUNGER, TOLLES & OLSON LLP TAMERLIN J. GODLEY (Pro Hac Vice application filed concurrently) ADELE M. EL-KHOURI (D.C. Bar No. 1025090) JESSICA REICH BARIL (Pro Hac Vice application filed concurrently) DAVID P. THORESON (Pro Hac Vice application filed concurrently)

By:

/s/ Adele M. El-Khouri

ADELE M. EL-KHOURI

ADELE M. EL-KHOURI Adele.El-Khouri@mto.com MUNGER, TOLLES & OLSON LLP 1117 F. Street, N.W., Seventh Floor Washington, D.C. 20004–1357 Telephone: (202) 220-1100 Facsimile: (202) 220-2300
TAMERLIN J. GODLEY Tamerlin.Godley@mto.com JESSICA REICH BARIL Jessica.Baril@mto.com DAVID P. THORESON David.Thoreson@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, Fiftieth Floor Los Angeles, California, 90017 Telephone: (213) 683-9100 Facsimile: (213) 687-3702
Counsel for All Plaintiffs
Additional Co-Counsel for All Plaintiffs Listed on Next Page

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Additional Co-Counsel for All Plaintiffs

BACARDI JACKSON bacardi.jackson@splcenter.org (Pro Hac Vice application filed concurrently) CHRISTINE BISCHOFF christine.bischoff@splcenter.org (Pro Hac Vice application filed concurrently) KATHERINE DUNN katherine.dunn@splcenter.org (Pro Hac Vice application filed concurrently) LINDSEY RUBINSTEIN lindsey.rubinstein@splcenter.org (Pro Hac Vice application filed concurrently) SAM BOYD sam.boyd@splcenter.org (Pro Hac Vice application filed concurrently) MICHAEL TAFELSKI michael.tafelski@splcenter.org (Pro Hac Vice application filed concurrently)
SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 Telephone: (334) 315-0179 Facsimile: (334) 956-8481

WENDY LECKER WLecker@edlawcenter.org (Pro Hac Vice application filed concurrently) JESSICA LEVIN JLevin@edlawcenter.org (Pro Hac Vice application filed concurrently)
EDUCATION LAW CENTER 60 Park Place, Suite 300 Newark, New Jersey 07102 Telephone: (973) 624-1815 Facsimile: (973) 624-7339

.

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 Case 1:20-cv-01996-DLF Document 35 Filed 08/11/20 Page 1 of 61

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 4805 Mount Hope Drive Baltimore, MD 21215,

Civil Case No. 1:20-cv-01996 (DLF) FIRST AMENDED COMPLAINT

PENELOPE LANTZ, individually and as next friend of minor child A.C. c/o Southern Poverty Law Center 400 Washington Avenue
Montgomery, AL 36104,

MARSHA LOPEZ, individually and as next friend of minor children M.L. and G.L. c/o Southern Poverty Law Center 400 Washington Avenue
Montgomery, AL 36104,

SUSAN BOOK, individually and as next friend of minor child E.P. c/o Southern Poverty Law Center 400 Washington Avenue
Montgomery, AL 36104,

MICHELE WILSON, individually and as next friend of minor children A.W. and K.W. c/o Southern Poverty Law Center 400 Washington Avenue
Montgomery, AL 36104,

ADRIENNE GILBY, individually and as next friend of minor children C.G. and E.G. c/o Southern Poverty Law Center 400 Washington Avenue
Montgomery, AL 36104,

KIMBERLY ROMMEL-ENRIGHT and STEPHEN ENRIGHT, individually and as next friends of minor child A.E. c/o Southern Poverty Law Center 400 Washington Avenue
Montgomery, AL 36104,

TRACY O’CONNOR, individually and as next friend of minor children C.O., S.O. & M.O. c/o Southern Poverty Law Center 400 Washington Avenue
Montgomery, AL 36104,
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ELISE MCINTOSH, individually and as next friend of minor children H.K. and M.K. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
DEBORAH JOHNSON, individually and as next friend of minor child D.J. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
BETH LEWIS, individually and as next friend of minor children G.L. and M.L. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
JEANNETTE DIAZ, individually and as next friend of minor child T.D. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
BRITTANY ALDOUS, individually and as next friend of minor child J.R. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
ABRAHAM CAMEJO, individually and as next friend of minor children A.P. and S.P. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
KEISHA GUYTON, individually and as next friend of minor child Z.C. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
LISA MINGRONE, individually and as next friend of minor child A.M. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
WHITNEY BATTEAST, individually and as next friend of minor child K.Y. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
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HERBERT BROWN, individually and as next friend of minor child J.B. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
VILLI PREMPEH, individually and as next friend of minor children W.N. and P.N. c/o Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104,
DENVER COUNTY SCHOOL DISTRICT NO. 1 (a/k/a DENVER PUBLIC SCHOOLS) 1860 Lincoln Street Denver, CO 80203,
PASADENA UNIFIED SCHOOL DISTRICT 351 South Hudson Avenue Pasadena, CA 91109,
STAMFORD PUBLIC SCHOOLS 888 Washington Boulevard Stamford, CT 06901,
DEKALB COUNTY SCHOOL DISTRICT 1701 Mountain Industrial Boulevard Stone Mountain, GA 30083,
and
BROWARD COUNTY PUBLIC SCOOLS 600 S.E. Third Avenue Fort Lauderdale, FL 33301,
Plaintiffs, v.
ELISABETH “BETSY” D. DEVOS, in her official capacity as the United States Secretary of Education 400 Maryland Avenue, S.W. Washington, D.C. 20202,
and
UNITED STATES DEPARTMENT OF EDUCATION 400 Maryland Avenue, S.W. Washington, D.C. 20202,
Defendants.
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Plaintiffs allege as follows: INTRODUCTION
1. Plaintiffs—public school children and their parents, public school districts, and the National Association for the Advancement of Colored People (“NAACP”)—bring this action to enjoin and then vacate the July 1, 2020 Interim Final Rule (the “Rule”) illegally issued by Defendants Secretary of Education Elisabeth “Betsy” D. DeVos (the “Secretary”) and the United States Department of Education (the “Department”). In this moment of dire need for America’s public schools, the Rule compels public school districts to divert essential CARES Act1 funds for the benefit of private schools or face unlawful limitations on the way that those funds can be spent in public schools—both in direct contravention of the Act. The Rule harms American children and subverts the will of Congress; it cannot stand.
2. On March 27, 2020, in response to a global pandemic that has disrupted every aspect of the economy and placed particular strain on American public schools, Congress enacted the CARES Act. Among other important purposes, the CARES Act appropriated $30.75 billion to help K-12 schools and higher education institutions respond to COVID-19. Over $13.5 billion will be distributed to local public school districts that administer elementary and secondary public schools. School districts have broad flexibility to use the funds to address the extraordinary needs created by the pandemic, the effects of which have been particularly devastating for the nation’s least advantaged students.
3. Recognizing that some private schools serve a small number of lower-income students, Congress instructed school districts to set aside a correspondingly small percentage of CARES Act funds for the benefit of disadvantaged private-school students. Specifically, the CARES Act directs public school districts to calculate the amount to set aside for the benefit of private-school students “in the same manner” as Title I funds are calculated for the benefit of disadvantaged private-school students under the Elementary and Secondary Education Act of
1 Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (2020) (referred to herein as the “CARES Act” or the “Act”).
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1965 (“ESEA”). Title I funds are indisputably allocated based on the number of local students from low-income families who attend private schools from the district, which number is relatively small. Accordingly, the percentage of CARES Act funds that Congress intended to be set aside for the benefit of private-school students is minimal and focused on children in need.
4. Despite the Act’s clear language and express instruction, on April 30, 2020, the Department of Education issued guidance (the “Guidance Document”) purporting to “interpret” how school districts, also known as Local Educational Agencies (“LEAs”), should apportion CARES Act funding for private schools.2 Contrary to the Act’s plain language, the Guidance Document directed LEAs to apportion CARES Act funds for private schools based on the total number of private-school students residing in the district, as opposed to the number of lowincome private-school students. The consequences of the Guidance Document were as obvious as they were severe: if followed, hundreds of millions of dollars in CARES Act funds would have been diverted from public schools to private-school students.
5. The Department’s Guidance Document drew swift backlash from education experts, state officials, and members of Congress from across the United States, all of whom criticized the Department for seeking to divert congressional funding intended for public schools. On May 5, 2020, for example, the Executive Director of the Council of Chief State School Officers published a letter to the Secretary criticizing the Department’s Guidance Document for attempting to funnel “an inequitable amount of funding” under the CARES Act to private schools. Using Orleans Parish in Louisiana as an example, the letter estimated that, if the Department’s guidance were followed, “at least 77% of its CARES formula allocation would be directed to non-public schools.”3 The diversion of CARES Act education funds to private
2 U.S. Dep’t of Educ., Providing Equitable Services to Students and Teachers in Non-Public Schools Under the CARES Act Programs (Apr. 30, 2020) (hereinafter “Guidance Document”), https://oese.ed.gov/files/2020/06/Providing-Equitable-Services-under-the-CARES-ActPrograms-Update-6-25-2020.pdf. 3 See Letter from Carissa Moffat Miller, Exec. Dir., Council of Chief State Sch. Officers, to Betsy D. DeVos, Sec’y, U.S. Dep’t of Educ. (May 5, 2020), https://ccsso.org/sites/default/files/2020-05/DeVosESLetter050520.pdf.
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schools was particularly troubling because private schools, unlike public schools, were already eligible for forgivable loans under the Payroll Protection Plan—meaning the Guidance Document would have inexplicably doubled-up federal aid to private schools at the expense of America’s public school students.
6. Ignoring public outcry, on July 1, 2020, the Department dug in its heels and— forgoing the mandated notice-and-comment procedures—published an Interim Final Rule, CARES Act Programs; Equitable Services to Students and Teachers in Non-Public Schools, 85 Fed. Reg. 39,479 (July 1, 2020) (the “Rule”) to purportedly “clarify the requirement in the [CARES Act] that local educational agencies (LEAs) provide equitable services to students and teachers in non-public schools under the Governor’s Emergency Education Relief Fund (GEER Fund) and the Elementary and Secondary School Emergency Relief Fund (ESSER Fund).” Id. The Rule became effective upon its publication in the Federal Register on July 1, 2020. See id.
7. In attempted window-dressing for the unlawful siphoning of public funds for private schools, the Rule now contained a so-called “choice” for public school districts that, in reality, is no choice at all. Under the Rule, LEAs have two options (“Option 1” and “Option 2”):
a. Option 1: Under the default option, an LEA must apportion funds for the benefit of private-school students based on the total number of students attending private schools, rather than the number of low-income students attending private schools, dramatically reducing the funding available to public schools.
b. Option 2: Alternatively, if the LEA wants to maintain the full amount of funding provided by Congress by allocating funding for the benefit of private-school students based on the number of students in poverty, then the LEA must adhere to two severe limitations on the use of the CARES Act funding that were never intended nor authorized by Congress.
i. First, an LEA that chooses Option 2 may not spend any CARES Act funds in any non-Title I schools. By way of background, the current threshold proportion of low-income students required for designation as a Title I school is 40 percent. See 20 U.S.C. § 6314(a)(1)(A). Of course, many public schools serve significant populations of low-income students but are not designated as Title I schools. All of those schools and their students will be
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excluded from the CARES Act programs under this option. This restriction on spending is plainly irreconcilable with the broad flexibility that Congress has afforded LEAs to use CARES Act funds in any school within their districts, and it has no basis in statute, policy, or reason.
ii. Second, an LEA that chooses this option may not spend any CARES Act funds such that federal funds would “supplant,” as opposed to “supplement,” traditional state and local funding sources for the program or service. This restriction forbids LEAs from using CARES Act funds to cover preexisting expenditures previously paid with state and local funds—an irrational result, considering that one of the CARES Act’s key purposes is to make up for steep budget shortfalls due to COVID-19. Another express purpose of the CARES Act was to ensure that LEAs “maintain the operation of and continuity of services” as well as continued employment of “existing staff.” CARES Act, § 18003(d), 134 Stat. 566. Indeed, LEAs that receive funds must continue to pay their employees and contractors to the greatest extent possible during the pandemic. See id. Prohibiting LEAs from using the CARES Act funding for these purposes flies in the face of express congressional intent. The Rule’s “supplement, not supplant” restriction is found nowhere in the CARES Act and sharply contradicts its purposes.
8. The Rule, which purports to provide “flexibility,” in fact presents LEAs with an illusory choice: Districts can either (1) forfeit a substantial share of their CARES Act funds for the benefit of private schools, but maintain their congressionally granted discretion for spending what is left; or (2) maintain the full funding intended for public schools under the CARES Act, but give up the ability to serve all of their students and adhere to severe restrictions on how the money can be spent. This is not a “choice,” but rather a coercive set of restrictions intended to illegally divert federal funds from public to private education institutions. The Rule is yet another attempt of many by the Secretary to divert public money away from public schools for the benefit of private school companies and organizations.
9. The Department’s Rule is manifestly illegal. The Department does not have the authority to promulgate administrative rules that interpret—much less amend—the CARES Act’s unambiguous allocation requirements for funds provided to private-school students. Nor does
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the Department’s generic rulemaking authority enable it to promulgate the Rule. See 20 U.S.C. § 1221e-3. Congress unambiguously dictated the allocation of CARES Act funds for “equitable services” in the statute. Congress left no gaps in the statute implicitly justifying rulemaking by the Department, and so the Rule is not entitled to deference by this Court.
10. The Department’s Rule is also arbitrary and capricious for a variety of reasons, including that it takes funds that Congress specifically appropriated for public schools to alleviate their state and local budget crises created by the pandemic, and instead diverts them to benefit privately funded schools, regardless of need. The Department also failed to consider the impact of the Rule on economically vulnerable students and students of color, who are disproportionately represented in public schools and under-represented in private schools.4 Given that the purpose of Title I—which Congress cites in the CARES Act—was to “benefit the youngsters which come from our poorest families,”5 the Department’s failure to consider the needs of the nation’s most vulnerable students during this crisis was arbitrary and capricious.
11. In promulgating the Rule, the Department further ignored the procedural steps required by the Administrative Procedure Act—specifically, by bypassing notice-and-comment proceedings while lacking “good cause” to do so. See 5 U.S.C. § 553(b)(B).
12. The Department’s Rule also violates steadfast separation-of-powers principles enshrined in the United States Constitution and reiterated in Supreme Court case law. It is axiomatic constitutional law that an executive agency may not impose spending conditions on federal funds distributed to the states via legislative rulemaking without congressional authorization. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); see also In re
4 See generally Jongyeon Ee et al., Private Schools in American Education: A Small Sector Still Lagging in Diversity (UCLA Civ. Rights Project Working Paper Mar. 5, 2018) (finding that private-school enrollment in the United States was 68.6% white and students from low-income families make up only 9% of private-school enrollment but over 50% of public-school enrollment), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-anddiversity/private-schools-in-american-education-a-small-sector-still-lagging-in-diversity/EeOrfield-Teitell-Private-School-Report_03012018.pdf. 5 A Bill to Strengthen and Improve Educational Quality and Opportunity in the Nation’s Elementary and Secondary Schools: Hearings on S. 370 Before the Subcomm. on Educ. of the Comm. on Labor and Public Welfare, 89th Cong. 3 (1965) (statement of Senator Wayne Morse).
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Aiken Cty., 725 F.3d 255, 260 (D.C. Cir. 2013) (“[W]here previously appropriated money is available for an agency to perform a statutorily mandated activity,” separation-of-powers principles dictate that “federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress.”). Congress did not authorize the Department to impose the Rule’s conditions for spending CARES Act funds, and in fact prescribed the only conditions for spending those funds in the CARES Act itself. Constitutional separation-of-powers principles forbid the Department from imposing the additional, different conditions in the Rule.
13. Finally, the Department’s Rule violates the Spending Clause of the United States Constitution. See U.S. Const. art. I, § 8. First, Congress did not delegate rulemaking authority to the Secretary to impose spending conditions on CARES Act funds, and it explicitly authorized LEAs to spend those funds on a broad set of expenditures. Second, states applied for CARES Act funding before the Rule was promulgated, thereby entering into a “contract” with the federal government. See Nat’l Fed’n of Indep. Bus. (NFIB) v. Sebelius, 567 U.S. 519, 577 (2012). The Department’s retroactive imposition of spending conditions alters that contract in violation of the Spending Clause. The Rule also coerces LEAs into compliance with the Secretary’s own policy goal of increasing the share of CARES Act funds going to private schools, or else forgo all federal aid to non-Title I schools in their districts and be severely restricted in how the funds can be spent in Title I schools. These spending restrictions put “a gun to the head” of school districts in order to further the Secretary’s policy goals. See id. at 581.
14. The Rule is as immoral as it is illegal. In a moment of crisis—when public school districts are called upon to educate their students in unprecedented circumstances, to protect their students and staff from disease, and to feed families who have been plunged into poverty,6 all with decimated state and local revenues—it is unconscionable for Defendants to siphon away the
6 More than two-thirds of the nation’s students who eat school lunches are economically dependent on their school districts to provide the meal. See Bettina Elias Siegel, As Coronavirus Closes Schools, USDA Offers Limited Help to Kids Who Rely on School Meals, CIVIL EATS (updated June 10, 2020), https://civileats.com/2020/03/06/coronavirus-is-closing-schools-hereswhat-it-means-for-millions-of-kids-who-rely-on-school-meals/.
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CARES Act’s desperately needed funds for the benefit of more affluent private-school students.

The Rule will most negatively impact students in high-poverty districts; because of long-standing

institutional racism, students of color are disproportionately represented in those schools and

districts, whereas white students are disproportionately enrolled in the private schools to which

the Rule attempts to funnel federal funds. This unlawful diversion will directly impair the

education, health, and safety of low-income students and students of color for the benefit of more

affluent, white, private-school students, further perpetuating institutional racism. Defendants’

actions should be immediately enjoined and the Rule vacated.

JURISDICTION AND VENUE

15. This action arises under the federal Administrative Procedure Act (“APA”), 5

U.S.C. §§ 553, 701–706, and the United States Constitution. This Court has subject-matter

jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1346. The Department’s Rule is a “final agency

action” and thus reviewable under the APA. 5 U.S.C. § 704; see also Career College Ass’n v.

Riley, 74 F.3d 1265, 1268 (D.C. Cir. 1996) (concluding that an interim final rule is a final agency

action within the meaning of the APA, and therefore subject to immediate judicial review).

16. This Court has the authority to issue declaratory relief, injunctive relief, and other

relief pursuant to the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, and the APA,

5 U.S.C. §§ 702, 706.

17. This is a civil action in which Defendants are agencies of the United States or

officers of such an agency. Venue is proper in this Court because Defendants reside in this

district and a substantial part of the events giving rise to this action occurred in this district. See

28 U.S.C. § 1391(e)(1).

THE PARTIES

I.

PLAINTIFFS

18. Plaintiff National Association for the Advancement of Colored People

(“NAACP”) is an American civil-rights organization founded in 1909 to ensure the educational,

political, social, and economic equality of all persons and eliminate all forms of race-based

discrimination. The NAACP has a clear and demonstrable interest in ensuring that federal

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education funds under the CARES Act are distributed and spent in support of their intended recipients in America’s public schools. The principal address of the NAACP is 4805 Mount Hope Drive, Baltimore, Maryland 21215.
a. The NAACP’s national membership includes numerous individuals who would be irreparably harmed by the Department’s illegal Rule, including many parents of minor children attending Title I and non-Title I public schools in districts that either (1) stand to lose substantially increased amounts of CARES Act funds to private-school students, or (2) will be forced to accept significant restrictions on their use of CARES funds, if the Department’s Rule were enforced. These individuals include Teresa Haley and her minor grandchild, T.M., Kimberly Griffin and her minor child, C.G., Eugene Howard and his minor children, M.R. and E.H., and Jabari Jones and his minor children, J.J. and J.J. The Rule will disproportionately harm students of color and benefit primarily white students. By way of background, in the 2016–17 school year, enrollment in public schools receiving federal Title I aid was 33% white and 67% students of color. In contrast, private school enrollment was 67% white and 33% students of color. Private schools serve about 10% of all students in the United States, but approximately 1% of all low-income students in the United States.7 Accordingly, the NAACP has a clear and demonstrable interest in ensuring that federal education funds under the CARES Act are distributed to their intended recipients and can be used as needed to serve all public school students, without diversion to majority-white and affluent private-school students.
b. Likewise, as a core part of its mission, the NAACP advocates for racial equality in public education. Its goals include ensuring resource equity by targeting federal funding to the nation’s neediest children; opposing the privatization of public schools; and fighting to ensure adequate state, local, and federal funding of public schools. The NAACP expends considerable resources to train its units and members on proper implementation of the
7 National Center for Education Statistics, Racial/Ethnic Enrollment in Public Schools (last updated May 2020), https://nces.ed.gov/programs/coe/indicator_cge.asp#:~:text=In%20fall%202017%2C%20of%20t he,million%20were%20American%20Indian%2FAlaska.
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Elementary and Secondary Education Act, and all relevant federal regulations governing funding to the nation’s least-resourced students. The Rule disproportionately impacts students of color, either by decreasing funding for students of color for the benefit of white, affluent private-school students; or by restricting the expenditure of funds for students in need. The Rule also forces LEAs to make decisions concerning the distribution of federal funds among and between public schools, in direct contravention of Congressional intent. The NAACP will therefore need to expend a greater portion of its finite resources advocating for equity in CARES Act spending in order to advance its educational mission.
19. Plaintiffs Penelope Lantz, Marsha Lopez, Susan Book, Michele Wilson, Adrienne Gilby, and Kimberly Rommel-Enright and Stephen Enright, individually and as next friends of their minor children, are parents of minor children who are enrolled in non-Title I public elementary and secondary schools administered by local educational agencies that administer both Title I and non-Title I schools. Their children’s schools will lose resources under the Department’s Rule regardless of which budgeting “option” their districts adopt. If their children’s school district follows Option 1 by apportioning funds for the benefit of private schools based on the total number of students attending private schools, rather than the number of low-income students attending private schools, this will reduce the amount of CARES Act funding available to their children’s public schools. If their children’s school district follows Option 2, retaining the full grant amount provided by Congress without diverting additional funds to private schools, then their children’s schools will receive no CARES Act funds.
a. Plaintiff Penelope Lantz and her minor child C.A. live in Washington, D.C. C.A. attends Woodrow Wilson High School, a non-Title I school located within District of Columbia Public Schools (“DCPS”), a district that contains both Title I and non-Title I schools and approximately 108 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, C.A.’s school will either receive no funds or decreased funds, which will result in decreased resources and services for C.A.
b. Plaintiff Marsha Lopez and her minor children M.L. and G.L. live in Bethesda, Maryland. M.L attends Bethesda-Chevy Chase High School, a non-Title I school
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located within Montgomery County Public Schools (“MCPS”), a district that contains both Title I and non-Title I schools and approximately 183 private schools. G.L. attends Westland Middle School, which is also a non-Title I school located within MCPS. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, M.L. and G.L.’s schools will either receive no funds or decreased funds, which will result in decreased resources and services for M.L. and G.L.
c. Plaintiff Susan Book and her minor child E.P. are from Raleigh, North Carolina. E.P. attends Root Elementary School, a non-Title I school located within Wake County Public School System (“WCPSS”). WCPSS contains both Title I and non-Title I schools and approximately 76 private schools. In addition to the funding necessary for all public school students, E.P. relies on crucial funding for services to which E.P. is entitled under the Individuals with Disabilities Education Act (“IDEA”) to support E.P.’s learning with autism. Prior to the COVID-19 crisis, an independent examination of North Carolina schools conducted at the order of a state court judge found widespread deficiencies in public school funding in the state, including major deficiencies in education for children with disabilities.8 Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, E.P.’s school will either receive no funds or decreased funds, which will result in further decreased resources and services for E.P.
d. Plaintiff Michele Wilson and her minor children A.W. and K.W. are from Cary, North Carolina. A.W. and K.W. both attend Farmington Woods Elementary School, a non-Title I school located within WCPSS. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, A.W. and K.W.’s school will either receive no funds or decreased funds, which will result in decreased resources and services for A.W. and K.W.
e. Plaintiff Adrienne Gilby and her minor children C.G. and E.G. are from Chandler, Arizona. C.G. attends Corona Del Sol High School, a non-Title I school located within Tempe Union High School District, which contains private high schools. E.G. attends
8 WestEd, Sound Basic Education for All: An Action Plan for North Carolina (2018), https://www.wested.org/resources/leandro-north-carolina/.
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Kyrene Traditional Academy, a non-Title I school, which is located within Kyrene School District, where Adrienne also teaches. The Kyrene School District serves Tempe, Chandler, and Phoenix areas and contains private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, C.G. and E.G.’s schools will either receive no funds or decreased funds, which will result in decreased resources and services for C.G. and E.G.
f. Plaintiff Kimberly Rommel-Enright and Stephen Enright are the parents of minor child A.E. and live in Jupiter, Florida. A.E. is a young adult with significant intellectual disabilities who receives transitional services from Jupiter Community High School, a non-Title I school in the School District of Palm Beach County. SDPBC contains both Title I and nonTitle I schools and approximately 143 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, A.E.’s school will either receive no funds or decreased funds, which will result in decreased resources and services for A.E.
20. Plaintiffs Tracy O’Connor, Elise McIntosh, Deborah Johnson, Beth Lewis, Jeannette Diaz, Brittany Aldous, Abraham Camejo, Keisha Guyton, and Lisa Mingrone, individually and as next friends of their minor children, are parents of minor children who are enrolled in Title I public elementary and secondary schools administered by a local educational agency that administers both Title I and non-Title I schools. Under the Rule, their children’s schools will either lose resources to private schools or be forced to accept severe, unintended restrictions on the way they can spend these funds. If their children’s school districts follow Option 1 by apportioning funds for the benefit of private schools based on the total number of students attending private schools, rather than the number of low-income students attending private schools, this will reduce the funds available to their children’s school. If their children’s schools district retains the full grant amount provided by Congress without diverting additional funds for private schools, then their children’s school will not be able to use CARES Act funds for any services previously provided using state and local funding.
a. Plaintiff Tracy O’Connor and her minor children C.O., S.O., and M.O. are from Memphis, Tennessee. C.O. and S.O. attend East High School, a Title I school, which is located within Shelby County Schools (“SCS”), a district that contains both Title I and non-Title
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I schools and approximately 80 private schools. M.O. attends Snowden School, a Title I school, which is also located within SCS. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, C.O, S.O and M.O.’s schools will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
b. Plaintiff Elise McIntosh and her minor children H.K. and H.M. are from Memphis, Tennessee. H.M. attends Snowden School, a Title I school within SCS. H.M. receives critical services under Section 504 of the Rehabilitation Act to support H.M.’s multiple exceptionalities, including ADHD and what is currently diagnosed as a sensory processing disorder. H.K. attends Central High, a Title I school located within SCS, and also has a Section 504 education plan. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, H.K. and H.M.’s schools will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
c. Plaintiff Deborah Johnson and her minor child D.J. are from Covington, Georgia. D.J. is on the autism spectrum, and Deborah and D.J. have had to move to find a school that provides D.J. with appropriate services. This fall, D.J. will attend Alcovy High School, a Title I school located within Newton County Schools, a district that contains both Title I and non-Title I schools and at least seven private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, D.J.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
d. Plaintiff Jeannette Diaz and her minor child T.D. are from Decatur, Georgia. T.D. attends Druid Hills High School, a Title I school located within DeKalb County Public Schools. DeKalb County Public Schools contains both Title I and non-Title I schools and approximately 93 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, T.D.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
e. Plaintiff Beth Lewis and her minor children G.L. and M.L. are from Chandler, Arizona. Both children attend Arredondo Elementary School, a Title I school located within Tempe Elementary School District, where Beth also teaches. The district contains both
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Title I and non-Title I schools and approximately seven private elementary schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, G.L. and M.L.’s schools will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
f. Plaintiff Brittany Aldous and her minor child J.R. live in Las Vegas, Nevada. J.R. attends a Title I elementary school administered by Clark County School District (“CCSD”), which contains both Title I and non-Title I schools and approximately 100 private schools. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, J.R.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
g. Plaintiff Abraham Camejo and his minor children, A.P. and S.P., live in Clark County, Nevada. A.P. and S.P. attend Rancho High School, a majority-Latinx, Title I school administered by CCSD. Last year, per-pupil funding in CCSD was below the state and national averages.9 Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, A.P. and S.P.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
h. Plaintiff Keisha Guyton and her minor child, Z.C., live in Miami Lakes, Florida. Z.C. is a high school senior at Miami Lakes Educational Center, a Title I school administered by Miami-Dade Public Schools, where Z.C. qualifies for free school lunch. There are private schools in Z.C.’s district. Under the Department’s unlawful interpretation of the CARES Act contained in the Rule, Z.C.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
i. Plaintiff Lisa Mingrone and her minor child A.M. are from Nashville, Tennessee. A.M. attends East Nashville Magnet School, a Title I school located within the Metro Nashville Public School district (“MNPS”), which contains both Title I and non-Title I schools and approximately 71 private schools. Under the Department’s unlawful interpretation of the
9 See Clark County School District, Popular Annual Financial Report for FY Ended June 30, 2019 (2019) 11, http://www.ccsd.net/resources/accounting-department/2019-pafr.pdf.
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CARES Act contained in the Rule, A.M.’s school will either receive decreased funds or be unable to spend the CARES Act funds for critical services.
21. Plaintiffs Whitney Batteast, Herbert Brown, and Villi Prempeh, individually and as next friends of their minor children, are parents of minor children who are enrolled in Title I public elementary and secondary schools administrated by a local educational agency that administers only Title I schools.
a. Plaintiff Whitney Batteast and her minor child K.Y. live in Jackson, Mississippi. K.Y. attends Barack H. Obama Magnet Elementary School, a Title I school located within the Jackson Public School District (“JPS”), which is an all-Title I district. K.Y. has an Individualized Education Plan (“IEP”) and relies on two hearing aids. Under the Department’s Rule, K.Y.’s school will be forced to adhere to the Rule’s burdensome supplement-not-supplant provision.
b. Plaintiff Herbert Brown and his minor child J.B. are from Jackson, Mississippi. J.B. attends Bailey APAC Middle School, a Title I school, which is located within JPS. Under the Department’s Rule, J.B.’s school will be forced to adhere to the Rule’s burdensome supplement-not-supplant provision.
c. Villi Prempeh and her minor children W.N. and P.N. live in Union Springs, Alabama. W.N. attends South Highland Middle School, a Title I School located within Bullock County School District (“BCSD”), a majority-Black, all-Title I district. P.N. attends Union Springs Elementary School, a Title I school also located within BCSD. Both W.N. and P.N. are students with disabilities and have Individualized Education Programs (“IEPs”). P.N. also relies on crucial funding from the school to receive speech therapy to meet P.N.’s educational needs. Under the Department’s Rule, W.N. and P.N.’s schools will be forced to adhere to the Rule’s burdensome supplement-not-supplant provision.
22. Plaintiff Denver County School District No. 1, a/k/a Denver Public Schools (“DPS”), is an LEA located in the State of Colorado that operates 224 public primary and secondary schools serving 87,317 children in a district covering the City-County of Denver. Its principal address is 1860 Lincoln Street, Denver, Colorado 80203.
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a. DPS has a demonstrable interest in this litigation and will be directly impacted by the Rule. DPS is a “local educational agency” within the meaning of both the ESEA, see 20 U.S.C. § 7801(30), and the CARES Act, see § 18007(8), 134 Stat. 569, and received Title I-A subgrants in the previous fiscal year. DPS administers 159 Title I schools. The SEA for Colorado has been allocated $120,993,782 from the CARES Act’s ESSER Fund. DPS is eligible to receive $22,908,618 in ESSER funds from the SEA, as well as GEER funds to be determined.
b. The Rule will inevitably and irreparably harm public schools that DPS operates. If the Department’s Rule is not vacated, DPS will have to choose Option 1 in order to maintain the flexibility necessary for the spending of its CARES Act funds. Accordingly, all of its public schools will receive fewer CARES Act funds on a per-pupil basis than they would in the Rule’s absence. There are 7,571 private-school students residing in the district, but only 698 of them (less than 10 percent) were calculated to be from “low-income families” under section 1117(c)(1) of the ESEA, 20 U.S.C. § 6320(c)(1), in the last fiscal year. This means that DPS’s expenditures for the benefit of privates schools under the Department’s Rule will increase by more than ten-fold. Accordingly, DPS has an obvious interest in litigation to vacate the Rule.
c. The Rule’s harm will be disproportionately felt by students of color and low-income students, who are overrepresented in DPS schools. Indeed, over 75% of DPS students are students of color, and approximately 65% of them qualify for free or reduced-price school lunches. DPS has an obvious interest in litigation to maximize the financial resources available to assist its neediest students.
23. Plaintiff Pasadena Unified School District (“Pasadena Unified”) is an LEA located in the State of California that operates 23 public primary and secondary schools serving more than 15,000 children in a district that includes portions of the City of Pasadena, the City of Sierra Madre, and the unincorporated community of Altadena. Approximately 60% of the district’s students meet the poverty guidelines for free or reduced-price school lunches. Likewise, approximately 80% of the students are students of color. Pasadena Unified’s district
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contains more than fifty private schools. Pasadena Unified’s principal address is 351 South Hudson Avenue, Pasadena, California 91109.
a. Pasadena Unified has a demonstrable interest in this litigation and will be directly impacted by the Rule. Pasadena Unified is a “local educational agency” within the meaning of both the ESEA, see 20 U.S.C. § 7801(30), and the CARES Act, see § 18007(8), 134 Stat. 569, and received Title I-A subgrants in the previous fiscal year. The SEA for California has been allocated $1,647,306,127 from the CARES Act’s ESSER Fund. The SEA must allocate a minimum of $1,482,575,514 (i.e., 90%) of those funds for local education agencies that received Title I-A subgrants during the previous fiscal year, including Pasadena Unified. The Rule directly injures Pasadena Unified by restricting how it can spend its share.
b. The Rule will inevitably and irreparably harm the public schools Pasadena Unified operates. In the previous fiscal year, Pasadena Unified’s district contained a mixture of both Title I and non-Title I schools. If Pasadena Unified chooses Option 1, all of its public schools will receive fewer CARES Act funds on a per-pupil basis than they would in the Rule’s absence. If Pasadena Unified chooses Option 2, none of Pasadena Unified’s non-Title I public schools will receive CARES Act funds, and the CARES Act funds for its Title I public schools entail a “supplement, not supplant” restriction that would not exist in the Rule’s absence. Accordingly, Pasadena Unified has an obvious interest in litigation to vacate the Rule.
i. Pasadena Unified received ~$4.6 million in ESSER Funds and ~$1.2 million in GEER Funds. Before the Department’s Rule was published, Pasadena Unified intended to use its CARES Act funds to cover the costs associated with its nutritional programs and the spike in children and families needing food, to purchase technology software and hardware for distance learning, to make essential physical changes to school facilities to stop the spread of the coronavirus, to pay for supplies and PPE necessary for increased cleaning, and to make up for significant losses in state and local revenues for all of the district’s ordinary expenses.
c. Under section 1117 of the ESEA, Pasadena Unified would set aside 2.1% of these grants for the benefit of private-school students in poverty—or ~$121,800. If Pasadena
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Unified follows Option 1 by apportioning funds for the benefit of private schools based on the total number of students attending private schools, rather than the number of low-income students attending private schools, the district must divert as much as 40% of its CARES Act funds for the benefit of private schools—or ~$2.3 million. If it chooses Option 2, it will be unable to use its CARES Act funds at five non-Title I schools and will be unable to use CARES Act funs to make up the significant loss in local sales tax and state funding, among other onerous restrictions.
24. Plaintiff Stamford Public Schools (“SPS”) is a public school district located in Stamford, Connecticut. SPS’ principal address is 888 Washington Boulevard, Stamford, Connecticut 06901. SPS serves 16,600 students. The district expects enrollment to increase in the 2020–21 school year as a result of the closure of two local high schools, a charter school and a private school, in the city this year. The SPS student population is 44.5% Latinx, 30% White, 14.5% African-American, 7% Asian and 3% multi-racial. Among SPS students, 59% qualify for free or reduced price lunch, 14% are English Language learners, and 14% are students with disabilities. SPS administers 21 schools, 11 of which are Title I schools. There are 2,035 private school students who reside in Stamford. Only 17 private school students are low-income for the purposes of calculating the set-aside for equitable services pursuant to Title I.
a. SPS has a demonstrable interest in this litigation and will be directly impacted by the Rule. SPS is a “local educational agency” within the meaning of both the ESEA, see 20 U.S.C. § 7801(30), and the CARES Act, see § 18007(8), 134 Stat. 569, and received Title I-A subgrants in the previous fiscal year. The SEA for Connecticut has been allocated $111,068,059 from the CARES Act’s ESSER Fund. The SEA must allocate a minimum of $99,961,253 (i.e., 90%) of those funds for local education agencies that received Title I-A subgrants during the previous fiscal year, including SPS. The Rule directly injures SPS by restricting how it can spend its share.
b. The Rule will inevitably and irreparably harm SPS’ schools. In the previous fiscal year, SPS contained a mixture of both Title I and non-Title I schools. Under the Rule’s first option, all of SPS’s public schools will receive far fewer CARES Act funds on a per-
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pupil basis than they would in the Rule’s absence. If SPS chooses the Rule’s second option, SPS’s non-Title I public schools will receive no CARES Act funds at all, and the CARES Act funds for SPS’s Title I public schools will be subject to a “supplement, not supplant” restriction that would not exist in the Rule’s absence. Accordingly, SPS has an obvious interest in litigation to vacate the Rule.
i. SPS relies on local funds to support over 96% of its operating budget. The State provides less than $500 per pupil annually to SPS through its school funding formula. This year, Stamford’s Board of Finance held the mill rate flat in order to alleviate the financial burden facing the City’s taxpayers caused by the pandemic. As a result, SPS’s budget was reduced and funds to cover the additional costs associated with the pandemic were drastically curtailed. Because of the budget limitations, SPS was forced to cut over $12.5 million in staff, services, and programming, including school counselors, deans of students, all middle and high school media specialists, and kindergarten paraprofessionals.
ii. SPS received a CARES Act allocation of $2.7 million. Before the Department’s Rule was published, the district intended to use these funds districtwide to purchase cleaning supplies and personal protective equipment; expand its contract with the district’s cleaning company; purchase laptops and hot spots to facilitate distance learning; launch targeted support programs for disengaged students; hire Technical Support Specialists for each school building to assist teachers, staff, and students with learning technology; fund technology teachers districtwide; and fund school counselor and dean of students positions that have been lost due to budget cuts.
iii. Under Option 1, SPS must set aside $ 272,945 for the benefit of private-school students, in contrast to the $20,000 SPS would have to set aside for equitable services under the proper calculation pursuant to Title I. As a result, the district will be forced to forgo spending on Technical Support Specialists, who would fill a critical need for remote learning and to ensure all students are able to use essential technology.
iv. Under Option 2, the district would not be able to use CARES Act funds to provide personal protective equipment and increased cleaning services, technological
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devices and hotspots, Technical Support Specialists, technology teachers, support programs for disengaged students, deans of students, or counselors in its non-Title I schools. Additionally, the district would be prevented from using CARES Act funds to restore any of the other staff, programs, and supplies that have been lost due to the $12.5 million in budget cuts.
25. Plaintiff DeKalb County School District (“DCSD”) is Georgia’s third-largest public-school system, covering 257 square miles within DeKalb County, Georgia, excluding the areas served by Atlanta Public Schools and City Schools of Decatur. DCSD’s principal address is 1701 Mountain Industrial Boulevard, Stone Mountain, Georgia 30083. DCSD serves approximately 102,000 students. The DCSD student population is approximately 63.7% Black, 16.7% Hispanic/Latinx, 10.9% White, and 6.4% Asian. Among DCSD students, 72.2% qualify for free or reduced-price lunch, 15.5% are English language learners, and 11% are students with disabilities. DCSD administers 137 public schools, 110 of which are Title I schools. There are approximately 6,178 private school students who reside in DCSD’s jurisdiction. Only approximately 785 private school students are low-income for the purposes of calculating the set-aside for equitable services pursuant to Title I.
a. DCSD has a demonstrable interest in this litigation and will be directly impacted by the Rule. DCSD is a “local educational agency” within the meaning of both the ESEA, see 20 U.S.C. § 7801(30), and the CARES Act, see § 18007(8), 134 Stat. 569, and received Title I-A subgrants in the previous fiscal year. The State Education Agency (SEA) for Georgia has been allocated $457,169,852 from the CARES Act’s ESSER Fund. The Georgia Department of Education, Georgia’s SEA, must allocate a minimum of $411,452,867 (i.e., 90%) of those funds for local education agencies that received Title I-A subgrants during the previous fiscal year, including DCSD. The Rule directly injures DSCD by restricting how it can spend its share of ESSER funds.
b. The Rule will inevitably and irreparably harm DCSD’s schools. In the previous fiscal year, DSCD included a mixture of both Title I and non-Title I schools. Under the Rule’s first option, which the Georgia Department of Education has instructed all LEAs in the state to follow, all of DCSD’s public schools will receive far fewer CARES Act funds on a per-
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pupil basis than they would have received in the Rule’s absence. Accordingly, DCSD has a clear and unquestionable interest in litigation to vacate the Rule.
i. DCSD relies heavily on state and local funds to support its operating budget. DCSD’s operating budget has recently been significantly reduced—by $54 million—due to lost State funding, and it also anticipates a decline in local tax revenue due to the pandemic.
ii. DCSD received a CARES Act ESSER allocation of $33,585,162, and it may receive additional GEER funds to be determined. Before the Department’s Rule was published, the district intended to use these funds districtwide to purchase essential items to keep students safe and learning effectively during the pandemic, such as Chromebook devices and mobile hot-spots for students who lack devices and internet access, PPE, sanitation, school nutrition meal services, programs for students needing social and emotional support, and other COVID-19–related expenditures.
iii. Under Option 1, which the Georgia Department of Education has instructed all LEAs to use, DCSD must set aside $2,062,129 for the benefit of private-school students, approximately $1.6 million greater than the district would have to set aside for equitable services under the calculation that Congress prescribed in the CARES Act. As a result, the district will be forced to forgo spending on crucial pandemic-related expenditures and services.
26. Plaintiff Broward County Public Schools (“Broward County” or “BCPS”) is the second-largest school district in the State of Florida and the sixth-largest school district in the nation. BCPS’s principal address is 600 SE Third Avenue, Fort Lauderdale, Florida, 33301. BCPS has 327 public elementary and secondary schools and a total enrollment of 267,970 students. The BCPS student population is 39.4% Black, 31.6% Hispanic/Latinx, 22.2% White, and 3.6% Asian. Among BCPS students, 60.8% qualify for free or reduced-price lunch, 11.4% are English Language Leaners, and 13.9% are students with disabilities. BCPS has 199 Title I schools. The total enrollment in the district’s Title I schools is 134,290 students. There are
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42,606 private school students who reside in Broward County. Only 6,221 of those students are low-income for the purposes of calculating the set-aside for equitable services pursuant to Title I.
a. BCPS has a demonstrable interest in this litigation and will be directly impacted by the Rule. BCPS is a “local educational agency” within the meaning of both the ESEA, see 20 U.S.C. § 7801(30), and the CARES Act, see § 18007(8), 134 Stat. 569, and received Title I-A subgrants in the previous fiscal year. The State Education Agency (SEA) for Florida has been allocated $770,247,851 from the CARES Act’s ESSER Fund. The Florida Department of Education, Florida’s SEA, must allocate a minimum of $693,223,066 (i.e., 90%) of those funds for local education agencies that received Title I-A subgrants during the previous fiscal year, including BCPS. The Rule directly injures BCPS by restricting how it can spend its share of ESSER funds. BCPS anticipates receiving $61,979,755 in ESSER funds and $5,722,118 in GEER funds.
b. The Rule will inevitably and irreparably harm BCPS’s public schools. In the previous fiscal year, BCPS included a mixture of both Title I and non-Title I schools. In the previous fiscal year, BCPS contained a mixture of both Title I and non-Title I schools. If BCPS chooses Option 1, all of its public schools will receive fewer CARES Act funds on a per-pupil basis than they would in the Rule’s absence. If BCPS chooses Option 2, none of BCPS’s nonTitle I public schools will receive CARES Act funds, and the CARES Act funds for its Title I public schools entail a “supplement, not supplant” restriction that would not exist in the Rule’s absence. Accordingly, BCPS has an obvious interest in litigation to vacate the Rule.
II. DEFENDANTS 27. Defendant Elisabeth “Betsy” D. DeVos is Secretary of the United States
Department of Education and is sued in her official capacity pursuant to 5 U.S.C. § 702. Her principal address is 400 Maryland Avenue, S.W., Washington, D.C. 20202.
28. Defendant United States Department of Education is an executive agency of the United States of America pursuant to 5 U.S.C. § 101, and a federal agency within the meaning of 28 U.S.C. § 2671. As such, it engages in agency action and is named as a defendant in this
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action pursuant to 5 U.S.C. § 702. Its principal address is 400 Maryland Avenue, S.W., Washington, D.C. 20202.
29. Secretary DeVos is responsible for carrying out the duties of the Department of Education under the Constitution of the United States of America and relevant statutes, including the CARES Act and the ESEA.
FACTUAL ALLEGATIONS I. THE CARES ACT
30. The novel Coronavirus Disease 2019 (“COVID-19”) is a deadly, infectious disease caused by severe acute respiratory syndrome coronavirus 2 (“SARS-CoV-2”). The global spread of COVID-19 began in December 2019, and reached the United States in January 2020. By the end of March, cases of COVID-19 had been confirmed in all 50 States and the District of Columbia. As of July 22, 2020, the U.S. had the most confirmed active cases and deaths from COVID-19 in the world, and its case and death counts continue to grow as of the filing of this document. The COVID-19 pandemic has created a public-health emergency with devastating effects on individuals, families, businesses, communities, and local, state, and federal governments.
31. Educational agencies and school systems have been particularly hard-hit by COVID-19. As of April 10, 2020, nearly all primary and secondary schools nationwide—at least 124,000—closed their physical sites, affecting over 55 million students. Schools have been required to respond to the pandemic by taking drastic measures—including transitioning to remote “distance learning” and providing the technology infrastructure and hardware for students to learn from home, training teachers and providing the necessary resources and support for fully online learning, and providing food and other essential services to families devastated by the economic impacts of the crisis.10 School closures are particularly challenging for children in
10 See Letter of Council of the Great City Schools to U.S. Rep. Nancy Pelosi, U.S. Rep. Kevin McCarthy, U.S. Sen. Chuck Schumer, and U.S. Sen. Mitch McConnell (Apr. 28, 2020) (describing the costs incurred by public school districts throughout the spring),
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poverty and others with elevated needs, such as students with disabilities. Many students were without home internet access and devices when the pandemic began, which districts are working to provide. In addition, tens of millions of students rely on free and reduced-price meals at school.11 Districts continue to provide student meals, with the added responsibility of providing food for families as increased numbers of people lose work and are thrown into poverty by the virus.
32. Physically reopening schools will require unprecedented health and safety expenditures, including personal protective equipment (“PPE”), thermometers, cleaning supplies, testing kits, and additional personnel required to maintain the sanitation and distance necessary to reduce the risk of the virus. Schools will also need sufficient staff and programs to address the academic, social, and emotional effects of the pandemic and school closures on students, particularly our most vulnerable students. The Council of Chief State School Officers estimates that nationwide, schools will need as much as $245 billion in additional funding to reopen schools safely.12
33. The challenges of responding to COVID-19 are compounded for the nation’s public schools by the severe stress that COVID-19 has inflicted on state and local government budgets. Public education depends primarily on state and local funding. In many states, those funds are chronically inadequate. Prior to the pandemic, many states had not yet restored school funding or staff positions cut during the Great Recession of 2008.13 Moreover, state and local
https://www.cgcs.org/cms/lib/DC00001581/Centricity/Domain/4/Coronavirus-Aid%20Letter%20II.pdf. 11 In fiscal year 2018, for example, the National School Lunch Program “provided low-cost or free lunches to 29.7 million children daily.” U.S. Dep’t of Agric., Nat’l School Lunch Program, U.S.D.A. ECON. RESEARCH SERV. (Aug. 20, 2019), https://www.ers.usda.gov/topics/foodnutrition-assistance/child-nutrition-programs/national-school-lunchprogram/#:~:text=In%20fiscal%20year%20(FY)%202018,a%20cost%20of%20%2413.8%20billi on. 12 Letter from Carissa Miller, Exec. Dir., CCSSO to Hon. Lamar Alexander, U.S. Sen. (July 24, 2020), https://ccsso.org/sites/default/files/2020-06/HELPLetterFinal.pdf. 13 Sarah Reber & Nora Gordon, Supporting Students and Promoting Economic Recovery in the Time of COVID-19, BROOKINGS INST. (May 7, 2020), https://www.brookings.edu/blog/brown-
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government budgets have been decimated by COVID-19 in the form of reduced sales and income taxes, as well as drastic increases in spending on public health and other safety net programs. According to the National Conference of State Legislatures, almost half the states report at least a 10% decline in revenues in fiscal year 2021, with some declines climbing as high as 30%.14 Some experts project state budget shortfalls totaling $555 billion over the 2020–22 fiscal years.15 Dwindling budgets necessarily leave less funding available for public education. Moreover, school districts must present a balanced budget every year. Because districts cannot run a deficit, if there are inadequate funds to maintain staff, programs and services, school districts must make cuts to educational resources. Nevertheless, public schools continue to incur the normal costs of educating students, as well as substantial novel expenses required for them to do so remotely while school buildings are closed or have hybrid remote/in-person schedules, and safely once schools resume in-person classes.
34. Congress recognized the devastating financial effects of COVID-19 on the nation’s communities, businesses, and public educational institutions and acted to ameliorate those harms. On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (2020), was signed into law.
35. With respect to educational relief, the CARES Act created a $30.75 billion Education Stabilization Fund to enable public education institutions nationwide to “prevent, prepare for, and respond to coronavirus.” CARES Act § 18001, 134 Stat. 565-566.
36. The CARES Act directs the Secretary of Education to allocate a majority of the moneys appropriated for the Education Stabilization Fund for three separate sub-funds: (1) the
center-chalkboard/2020/05/07/supporting-students-and-promoting-economic-recovery-in-thetime-of-covid-19/ 14 See generally Nat’l Conf. on State Legis., COVID-19 Revised State Revenue Guidelines (July 7, 2020 update), https://www.ncsl.org/Portals/1/Documents/fiscal/Rev-Projection-Page-DataVisualizations-7.7.20.pdf. 15 Elizabeth McNichol & Michael Leachman, Center on Budget and Policy Priorities, States Continue to Face Large Shortfalls Due to COVID-19 Effects (July 7, 2020 update), https://www.cbpp.org/research/state-budget-and-tax/states-continue-to-face-large-shortfalls-dueto-covid-19-effects.
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Governor’s Emergency Education Relief Fund (“GEER”) (9.8%); (2) the Elementary and Secondary School Emergency Relief Fund (“ESSER”) (43.9%); and (3) the Higher Education Emergency Relief Fund (“HEER”) (46.3%). CARES Act §§ 18001(b)(1)–(3), 134 Stat. 564. Ultimately, $2,953,230,000 was allocated for the GEER Fund16 and $13,229,265,000 was allocated for the ESSER Fund.17
A. Governor’s Emergency Education Relief (“GEER”) Fund 37. The CARES Act provisions governing the GEER Fund direct the Secretary to make emergency relief grants from the Fund “to the Governor of each State with an approved application.” CARES Act § 18002(a), 134 Stat. 564. The statute further directs the Secretary to allocate the “amount of each grant” using the following formula: (1) 60 percent based on the State’s “relative population of individuals aged 5 through 24”; and (2) 40 percent based on the State’s “relative number of children counted under section 1124(c)” of the ESEA. CARES Act § 18002(b), 134 Stat. 564–565. 38. Once the Secretary has made a grant from the GEER Fund to the Governor, the Governor may use the GEER funds for any of three, broad purposes:
a. To “provide emergency support through grants to local educational agencies that the State educational agency deems have been most significantly impacted by coronavirus,” CARES Act § 18002(c)(1), 134 Stat. 565;
b. To “provide emergency support through grants to institutions of higher education serving students within the State that the Governor determines have been most significantly impacted by coronavirus,” CARES Act § 18002(c)(2), 134 Stat. 565; and
c. To “provide support to any other institution of higher education, local educational agency, or education related entity within the State that the Governor deems essential
16 See U.S. Dep’t of Educ., Governor’s Emergency Education Relief Fund State Allocations Table 1 (2020), https://oese.ed.gov/files/2020/04/GEER-Fund-State-Allocations-Table.pdf. 17 See U.S. Dep’t of Educ., Elementary and Secondary School Emergency Relief Fund State Allocations Table 1 (2020), https://oese.ed.gov/files/2020/04/ESSER-Fund-State-AllocationsTable.pdf.
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for carrying out emergency educational services to students.” CARES Act § 18002(c)(3), 134 Stat. 565.
39. The CARES Act contains no restrictions on which schools within eligible LEAs may receive GEER funds. For example, LEAs and their schools are eligible to receive GEER funds regardless of whether they also receive Title I funds. Instead, the CARES Act provides broad flexibility to LEAs to simply use such funds “to provide educational services to their students and to support the on-going functionality of the [LEA].” See CARES Act §§ 18002(c)(1), (3), 134 Stat. 565.
B. Elementary and Secondary School Education Relief (“ESSER”) Fund 40. The CARES Act provisions governing the ESSER Fund direct the Secretary to make emergency relief grants from the Fund to “each State educational agency [SEA] with an approved application.” CARES Act § 18003(a), 134 Stat. 565. The statute further directs that the “amount of each grant . . . shall be allocated by the Secretary to each State in the same proportion as each State received under part A of title I of the ESEA of 1965 [“Title I-A”] in the most recent fiscal year.” CARES Act § 18003(b), 134 Stat. 565. The allocation of Title I-A funds to the States is determined by various formulas specified in 20 U.S.C. §§ 6632–6639, and is based primarily on the number of children from low-income families and foster children in each State’s LEAs. 41. Under the CARES Act, at least 90% of ESSER funds received by SEAs must be subgranted to LEAs within the State. CARES Act § 18003(c), 134 Stat. 565. Similar to the Secretary’s allocation to the SEAs, the SEAs are required to subgrant those funds to LEAs “in proportion to the amount of funds such [LEAs] . . . received under [Title I-A] in the most recent fiscal year.” Id. 42. Unlike LEAs receiving GEER funds, only LEAs that participate in Title I-A are eligible to receive ESSER funds. LEAs that do not receive Title I-A funds—generally speaking, those with small numbers of low-income students—are ineligible for ESSER funds. However, the CARES Act contains no restrictions on which schools within the eligible LEAs may receive
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ESSER funds, meaning non-Title I schools within LEAs that receive Title I-A funds may still receive ESSER funds for the low-income students they serve under the CARES Act.
43. In other words, so long as an LEA receives Title I-A funds, the LEA may distribute ESSER funds even to non-Title I schools within its district.
44. The CARES Act authorizes LEAs to use ESSER funds for a broad range of purposes, including (1) any activities authorized under the ESEA and various other federal education statutes; (2) coordination of preparedness and response efforts of LEAs with State, local, Tribal, and territorial public health departments and other relevant agencies; (3) any activities to address the unique needs of low-income and/or disabled students, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth; (4) planning and coordination during long-term closures, including purchases of technology for online distance learning; (5) mental health services and support; and other purposes. See generally CARES Act § 18003(d), 134 Stat. 565–566 (cataloging permissible purposes for ESSER funds).
C. Equitable Services for Private-School Students 45. The crux of Plaintiffs’ suit concerns section 18005(a) of the CARES Act. Section 18005(a) requires that LEAs receiving funds from either the GEER Fund or the ESSER Fund allocate some of those funds for the provision of “equitable services” to private-school students within their districts. 134 Stat. 568.18 46. In particular, section 18005(a) unambiguously specifies that LEAs “shall provide equitable services in the same manner as provided under section 1117 of the ESEA of 1965 to students and teachers in non-public schools.” Id. (emphasis added). 47. Under section 1117 of the ESEA, LEAs must allocate a portion of their Title I-A funds to provide equitable services to eligible children and staff at private schools. Section 1117
18 Equitable services include: Books, materials, and equipment necessary to implement the Title I program; 2. Extended-day services; 3. Summer programs; 4. Saturday programs; 5. Counseling programs; 6. Computer-assisted instruction (CAI) with noninstructional computer technicians who supervise computer labs, maintain discipline, and escort students to and from class; 7. Home tutoring; 8. Computers and software products; and 9. Take-home computers.
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dictates that LEAs calculate the proportionate share of Title I-A funds to be used for equitable services “based on the number of children from low-income families who attend private schools” and reside in the “participating school attendance areas” (i.e., the geographic area in which children are normally served by a Title I-A school). 20 U.S.C. § 6320(a)(4)(A); see also 20 U.S.C. § 6313(a)(2) (defining “school attendance area”).
48. In other words, the “manner” in which equitable services are provided under section 1117 of the ESEA allocates the proportionate share of federal funds to be used for equitable services based on the number of low-income private-school children. By explicitly incorporating the terms of section 1117’s mandates into the CARES Act, Congress unmistakably dictated that LEAs provide equitable services with CARES Act funds in exactly the same manner as they do with Title I-A funds.
49. By contrast, the ESEA contains a different provision—section 8501—specifying a narrow range of services that SEAs must provide based on the total enrollment of private-school students. See generally 20 U.S.C. § 7881(a)–(b). By selecting the formula specified under section 1117, rather than section 8501, Congress unambiguously directed LEAs to provide equitable services under the CARES Act to private-school students based on the number of lowincome private-school students, not the total number of private-school students.
50. Prior to the CARES Act, the Department’s own materials fully acknowledged that “section 1117” allocated funds for equitable services based on private school students in poverty, not the total number of private-school students.19
19 U.S. Dep’t of Educ., Title I, Part A of the Elementary and Secondary Education Act of 1965, as Amended by the Every Student Succeeds Act: Providing Equitable Services to Eligible Private School Children, Teachers, and Families – Updated Non-Regulatory Guidance 19 (Oct. 7, 2019) (“The ESEA requires an LEA to determine an accurate count of children from low-income families who attend public and private schools and reside in participating Title I public school attendance areas in order to allocate the proportional share.”), https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-services-guidance100419.pdf.
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II. THE DEPARTMENT’S APRIL 30, 2020 GUIDANCE DOCUMENT 51. On April 30, 2020, the Department issued a Guidance Document regarding the
CARES Act, entitled Providing Equitable Services to Students and Teachers in Non-Public Schools Under the CARES Act Programs.
52. Without explanation and contrary to the Department’s previous statements about section 1117, the Guidance Document advises LEAs to determine the allocation of CARES Act (GEER and ESSER) funds for equitable services based on the total number of students enrolled in private schools, as opposed to the number of low-income students enrolled in private schools as specified in section 1117 of the ESEA. See Guidance Document at 4, 6.
53. In other words, the Guidance Document discards the calculation formula specified in section 1117 of the ESEA in favor of one resembling the calculation formula in section 8501 of the ESEA. See 20 U.S.C. § 7881(a)–(b). Congress did not incorporate section 8501 of the ESEA into the CARES Act. By adopting the calculation formula of section 8501, the Department not only ignored the clear statutory mandate of Congress in the CARES Act, but also grossly inflated the share of CARES Act funds to be allocated for the benefit of privateschool students in order to advance its own school privatization agenda.
54. The Department’s erroneous conclusion in the Guidance Document that “[t]o calculate the proportional share for equitable services under the CARES Act programs, an LEA determines the overall number of children who are enrolled in public schools and non-public schools in the LEA that wish to participate under one or both CARES Act programs,” Guidance Document at 6, was arbitrary and capricious, misstated and misapplied the law as written, and exceeded the Department’s lawful authority delegated by Congress. III. PUBLIC RESPONSE TO THE APRIL 30, 2020 GUIDANCE DOCUMENT
55. The Department’s Guidance Document drew swift criticism from education experts, state education officials, and federal legislators nationwide.
56. On May 5, 2020—less than a week after the Department published the Guidance Document—the Council of Chief State School Officers (“CCSSO”), a nationwide organization of public officials who head SEAs, wrote to the Secretary urging her to align the Department’s
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guidance with the CARES Act’s requirements for equitable services.20 The CCSSO criticized the Guidance Document for, among other things, transgressing congressional intent “by basing the non-public share [of CARES Act funds] on total enrollments rather than on the number of low-income children living in the LEA and attending non-public schools, as LEAs do every year under Section 1117 [of the ESEA] and are expressly required to do under the CARES Act statute.”21 The CCSSO admonished that the effect of the Guidance Document “would be that non-public schools . . . receive an inequitable amount of funding, much more federal support than Congress intended, or LEAs anticipated[,] based upon the CARES statute.”22 Accordingly, the CCSSO asked the Department to issue new guidance to “advise LEAs to look at the percentage of FY2019 Title I funds they set aside for equitable services and apply that percentage to ESSERF funds.”23
57. The Secretary did not respond to the CCSSO’s letter until several weeks later—on May 22, 2020.24 In her response, she flatly refused to clarify the Guidance Document in accordance with the plain text of the CARES Act, and in fact confirmed the Department’s intent to issue a formal rule enshrining the Department’s interpretation in the Guidance Document “in the next few weeks.”25 In the meantime, the Secretary ominously warned that if LEAs “insist on acting contrary to the Department’s stated position” in the Guidance Document, “they should, at minimum, put into an escrow account the difference between the amount generated by the
20 Letter from Carissa Moffat Miller, Exec. Dir., Council of Chief State Sch. Officers, to Betsy D. DeVos, Sec’y, U.S. Dep’t of Educ. (May 5, 2020), https://ccsso.org/sites/default/files/202005/DeVosESLetter050520.pdf. 21 Id. 22 Id. 23 Id. 24 Letter from Betsy DeVos, Secy’ of Educ., to Carissa Moffat Miller, Exec. Dir., Council of Chief State Sch. Officers (May 22, 2020), https://ccsso.org/sites/default/files/202006/Secretary%20DeVos%20Response%20to%20Carrisa%20Moffat%20Miller%205%2022%20 20.pdf. 25 Id.
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proportional-student enrollment formula and the Title I, Part A formula.”26 The Secretary’s benighted insistence that LEAs place scarce and desperately needed emergency funding into escrow was not only ludicrous in the midst of a global health pandemic, but also clearly inconsistent with Congress’s intent in the CARES Act to expeditiously bestow funding on LEAs to meet their immediate needs.
58. In the weeks following the Department’s publication of the Guidance Document, a host of State education officials also expressed concern that the Guidance Document misinterpreted the CARES Act and, if followed, would inequitably divert significant emergency funding away from public schools. Indeed, some State officials went so far as to affirmatively advise their LEAs to disregard the Guidance Document entirely. For example:
a. On May 7, 2020, Pennsylvania Secretary of Education Pedro A. Rivera wrote to the Department’s Assistant Secretary for Elementary and Secondary Education, Frank T. Brogan, urging the Department to clarify the Guidance Document.27 Secretary Rivera correctly observed that “[u]nder the CARES Act statute and [the Department’s] longstanding interpretation of equitable participation,” reservations for equitable services to private schools “are based on the number of low-income children in each participating non-public school in the LEA.”28 He went on to note that the Guidance Document’s advice to “instead base these calculations on the total number of nonpublic students[] is inconsistent with the CARES statute” and with “the fiscal year 2019 Title I-A administration that serves as the basis of CARES Act allocations.”29 Secretary Rivera’s letter also included figures for 18 Pennsylvania school
26 Id. 27 Letter from Pedro A. Rivera, Pa. Sec’y of Educ., to Frank T. Brogan, Ass’t Sec’y for Elementary & Secondary Educ., U.S. Dep’t of Educ. (May 7, 2020), https://www.education.pa.gov/ Documents/K12/Safe%20Schools/COVID/CARESAct/Letter%20to%20Secretary%20 Brogan.pdf. 28 Id. 29 Id.
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districts in which CARES Act funding supporting private schools would increase by at least 53%, and as much as 4,634%, if the Guidance Document were binding.30
b. On May 12, 2020, Indiana Superintendent of Public Instruction Jennifer McCormick issued a memorandum on behalf of the Indiana Department of Education instructing the State’s LEAs to disregard the Guidance Document and instead “enact[] the CARES Act as written in the law . . . including the provision to administer equitable services according to Sec. 1117 of the [ESEA].”31 Dr. McCormick explained that the State’s decision to ignore the Department’s Guidance Document “ensure[d] that the [CARES Act] funds are distributed according to Congressional intent and a plain reading of the law, which prioritizes communities and schools with high-poverty who are at most risk and in need of additional funds.”32 The Presidents of the Indiana State Conference and the Greater Indianapolis Branch of the NAACP sent a letter to Dr. McCormick thanking her for rejecting the Guidance Document and instructing LEAs to instead adhere to the text of the CARES Act.33
c. On May 14, 2020, Martha James-Hassan, President of the Maryland Association of Boards of Education, wrote to Benjamin L. Cardin and Christopher J. Van Hollen, the United States Senators from Maryland, requesting their “support and advocacy for immediate action by the [Department] to rescind and revise the guidance issued on April 30, 2020,” the methodology of which “is neither equitable nor in compliance with the controlling federal statute.”34 Dr. James-Hassan cautioned that if the Guidance Document were not rescinded, the
30 Id. 31 Mem. from Jennifer McCormick to Indiana Superintendents, Program Administrators & Treasurers of LEAS, Non-Public School Administrators, Final Language for Equitable Share of CARES Act Funds (May 12, 2020), https://www.doe.in.gov/sites/default/files/news/finallanguage-equitable-share-cares-actfunds.pdf. 32 Id. 33 Letter from Barbara Bolling-Williams & Chrystal M. Radcliffe, NAACP, to Dr. Jennifer McCormick, Superintendent of Public Instruction (June 8, 2020), https://b9423f67-93b3-44f1ae42-f33e05fe9eb8.filesusr.com/ugd/e80d1a_9d279210e3de46a9aed4f0b3fda7dd7a.pdf. 34 Letter from Martha James-Hassan, Pres., Md. Ass’n of Bds. of Educ., to Sen. Benjamin L. Cardin and Sen. Christopher J. Van Hollen, Jr. (May 14, 2020), https://www.mabe.org/wp-
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Maryland Department of Education would be forced to consider following the State of Indiana and instructing its LEAs to disregard the Guidance Document entirely.
d. On May 14, 2020, the New Mexico Public Education Department issued a memorandum directing State superintendents and charter school leaders “to determine equitable services dollar amounts [of CARES Act funds] based on the number of children from lowincome families in each participating non-public school in the attendance area boundaries of Title I schools within the school district.”35 According to the memorandum, such an approach “aligns with the plain language of the CARES Act and is consistent with long-standing equitable services calculations under Title I criteria, as well as U.S. Department of Education’s (ED) interpretations of the Elementary and Secondary Education Act of 1965 over decades[,] and as recently as October 2019.”36 The memorandum affirmatively instructed New Mexico school districts not to follow the Department’s April 30, 2020 Guidance Document because it is “inconsistent with Title I” and its “interpretation of the CARES Act . . . does not align with the State’s reading.”37
e. On May 21, 2020, the Mississippi Department of Education “concluded that the CARES Act section 18005(a) . . . requires Mississippi school districts to calculate the private school equitable share using the ESEA section 1117 method of identifying the ‘lowincome’ qualifying students in public and private schools and dividing the district’s allocated
content/uploads/2020/05/MABE-CARES-Act-Nonpublic-School-Funding-ED-GuidanceConcerns.Letter-to-Sen-Van-Hollen-and-Cardin-5-14-20.pdf. 35 Mem. from Gabriel C. Baca to N.M. State Superintendents and Charter School Leaders, Funds available under Coronavirus Aid, Relief and Economic Security (CARES) Act through the Elementary and Secondary School Education Relief Fund (ESSER), Index 24301 (May 14, 2020), https://webnew.ped.state.nm.us/wp-content/uploads/2020/05/CARES-Act-memo-ESSERFunds-2020-05-14-Final.pdf. 36 Id. 37 Id.
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funds proportionally. Contrary guidance issued by the United States Department of Education will not be followed.”38
f. On May 27, 2020, the Maine Department of Education reached the same conclusion that the CARES Act “requires LEAs to make equitable provision to private schools using the Title 1 distribution formula. This is unambiguous in the language of the law . . . which invokes section 1117 of ESEA[,] which is quite specific in the formula and process by which public schools must make the equitable provision. [The Department’s] guidance from April 30, 2020 contradicts the law and the [Department’s] interpretation of the law, as recently as October of 2019.”39
g. On June 8, 2020, the Connecticut State Board of Education issued a statement confirming its position that the Department’s April 30, 2020 Guidance Document was “inconsistent with the plain language of the CARES Act.”40 The Board concluded that it would be most “appropriate to enact the plain language of the CARES Act and follow the methodology under Title 1, rather than the Guidance [Document].”41 As noted in the Board’s statement, by June 8, “[o]ther state departments of education . . . made similar determinations,” including, but not limited to, departments in D.C., Colorado, Indiana, Maine, Oklahoma, Pennsylvania, South Dakota, and Wisconsin.42
h. On June 25, 2020, the Office of the Superintendent of Public Instruction for the State of Washington issued guidance to LEAs within that State instructing them to use the formula in section 1117 of the ESEA to calculate the proportional share of their CARES Act
38 Mississippi Dep’t of Educ., Cares Act Equitable Services, Miss. Achieves (May 21, 2020), https://msachieves.mdek12.org/cares-act-equitable-services. 39 Me. Dep’t of Educ., CARES Act: Frequently Asked Questions, Me. Dep’t of Educ. Priority Notice (May 27, 2020), https://mailchi.mp/maine/cu5lemq6y0-1321452. 40 Letter from Miguel A. Cardona, Conn. Comm’r of Educ., to Conn. State Superintendents (June 8, 2020), https://portal.ct.gov/-/media/SDE/Digest/2019-20/Equitable-services-under-ESSERFCARES-Act-06082020.pdf. 41 Id. 42 Id.
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funds reserved for equitable services to private school children, effectively rejecting the Department’s Guidance Document.43
59. The Guidance Document also drew bipartisan ire from federal legislators who were responsible for passing the CARES Act.
a. On May 20, 2020, Chairman Bobby Scott of the House Committee on Education and Labor; Chairwoman Rosa DeLauro of the House Subcommittee on Labor, Health, Human Services, and Related Agencies; and Ranking Member Patty Murray of the Senate Committee on Health, Education, Labor, and Pensions, wrote the Secretary urging her to “immediately revise [the Department’s] April 30 guidance . . . to come into compliance with the CARES Act and section 1117 of ESEA.”44 The letter chastised the Guidance Document for attempting “to repurpose hundreds-of-millions of taxpayer dollars intended for public school students to provide services for private school students, in contravention of both the plain reading of the statute and the intent of Congress.”45 The letter also requested the Department’s internal records related to its development of “its interpretation of the equitable services provision and its inconsistency with long-standing requirements related to equitable services.”46
b. The following day, May 21, 2020, Senator Lamar Alexander of Tennessee, Chair of the Senate Education Committee and a political supporter of the Secretary, reportedly confirmed that he, too, disagreed with the Guidance Document’s interpretation of the CARES Act. “My sense was that the money should have been distributed in the same way we
43 Wash. Office of Superintendent of Pub. Instruction, ESSER Funds: Questions and Answers 5 (June 25, 2020), https://www.k12.wa.us/sites/default/files/public/communications/ESSER%20Funds%20Q%26A _June%202020.pdf. 44 Letter from Robert C. Scott, Chair, Comm. on Educ. & Labor, U.S. House of Representatives, et al., to Betsy DeVos, Sec’y, U.S. Dep’t of Educ. (May 20, 2020), https://edlabor.house.gov/imo/media/doc/2020-5-20%20Ltr%20to%20DeVos%20re%20 Equitable%20Services.pdf. 45 Id. 46 Id.
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distribute Title I money,” Senator Lamar said. “I think that’s what most of Congress was expecting.”47
c. The Congressional Research Service, a research agency that provides information to Congress, prepared a memorandum analyzing the Secretary’s interpretation of the CARES Act, and found that “a straightforward reading of section 18005(a) based on its text and context suggests that the CARES Act requires LEAs to follow section 1117’s method for determining the proportional share, and thus to allocate funding for services for private school students and teachers based on the number of low-income children attending private schools.”48
60. Despite robust public outcry, the Department declined to clarify, revise, or rescind the Guidance Document. To the contrary, the Department doubled down on the directive, making it not just Guidance, but an enforceable Rule. IV. THE DEPARTMENT’S RULE
61. On July 1, 2020, the Department published the Rule, in the form of an interim final rule, entitled CARES Act; Equitable Services to Students and Teachers in Non-Public Schools, 85 Fed. Reg. 39,479 (July 1, 2020), in the Federal Register. Because it is an interim final rule, the Rule became effective immediately upon its publication in the Federal Register rather than after the normal public comment period. See id. The corresponding federal regulations enacted by the Rule are collected under the heading, Providing equitable services to students and teachers in non-public schools, 34 C.F.R. § 76.665 (2020).
47 Laura Meckler, Betsy DeVos defends decision to direct stimulus money to private schools, WASH. POST, May 21, 2020, https://www.washingtonpost.com/local/education/betsy-devosstimulus-private-schools/2020/05/21/d790b926-9b99-11ea-ad09-8da7ec214672_story.html. 48 Congressional Research Service Mem. to House Comm. On Educ. and Labor, Analysis of the CARES Act’s Equitable Services Provision (July 1, 2020) 2, https://blogs.edweek.org/edweek/campaign-k12/CRS%20Analysis%20of%20CARES%20Act%27s%20Equitable%20Services%20Provision %20%282%29.pdf
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A. Enacted Regulations under the Rule 62. The Department’s Rule enacts various regulations purporting to govern how LEAs determine the “proportional share” of CARES Act funds reserved for equitable services to private-school students. See generally 85 Fed. Reg. 39,482–83 (July 1, 2020); 34 C.F.R. § 76.665(c) (2020). 63. In a transparent attempt to create the illusion that the Department was responsive to public criticism of the Guidance Document, the Rule provides LEAs a “choice” that in reality is no choice at all. See 85 Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(1) (“To determine the proportional share of funds for equitable services to students and teachers in nonpublic elementary and secondary schools for each CARES Act program, an LEA must use one of the following measures.”). Both options are contrary to the CARES Act.
a. Option 1: Fewer Public Funds; Spend in Any Schools. An LEA may follow the Guidance document—i.e., apportion CARES Act funds for equitable services based on the total number of students attending private schools, rather than the number of low-income students attending private schools. 85 Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(1)(ii) (“LEA must calculate the proportional share based on enrollment in participating non-public elementary and secondary schools in the LEA compared to the total enrollment in both public and participating non-public elementary and secondary schools in the LEA.”). This Option completely discards the calculation formula specified under section 1117 of the ESEA and explicitly incorporated into the CARES Act. In so doing, Option 1 not only ignores the clear statutory mandate of Congress in the CARES Act, but also grossly inflates the share of CARES Act funds that would be allocated for the benefit of private-school students.
b. Option 2: Intended Amount of Public Funds; Spend Only Title I Schools, and No Supplanting. Alternatively, the Rule permits an LEA to apportion CARES Act funds for equitable services based on the number of low-income private-school students, as required under section 1117 of the ESEA and, by extension, section 18005(a) of the CARES Act. 85 Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(1)(i)(A). However, this option entails two crippling restrictions on the LEA’s discretion to expend the funds where and how they are most needed.
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i.

First, an LEA that chooses Option 2 may not spend any of the

public-school share of its CARES Act funds on any non-Title I schools. 85 Fed. Reg. 39,482

(July 1, 2020); 34 C.F.R. § 76.665(c)(1)(i) (making Option 1 applicable only to “[a]n LEA using

all its funds under a CARES Act program to serve only students and teachers in public schools

participating under Title I, Part A of the ESEA” (emphases added)). This prevents it from using

those funds to address the needs of low-income students in all schools across the district.

ii. Second, an LEA that chooses Option 2 may not spend any of its

CARES Act funds such that federal funds would “supplant,” as opposed to “supplement,”

traditional state and local funding sources for the same educational program or service. 85 Fed.

Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(3) (“An LEA using funds from a CARES Act

program in Title I schools under paragraph (c)(1)(i) of this section must comply with the

supplement not supplant requirement in section 1118(b) of the ESEA.”). This restriction forbids

LEAs from using CARES Act funds to pay for any preexisting educational expenditures

previously funded by state or local dollars—a decidedly head-spinning result, since one of the

CARES Act’s key purposes was to make up for the effects of COVID-19-related state and local

budget shortcomings on public education. Consistent with the CARES Act’s purpose, the

“supplement, not supplant” language is not referenced anywhere in the Act and the section of the

ESEA where the language appears is not cited or referenced in the Act.

64. Altogether, the Rule presents LEAs—and by extension, the public-school students

and parents they serve—with a lose-lose situation: either (1) retain discretion to spend CARES

Act funds in their public schools as Congress intended, but forfeit a much larger share of those

funds to private schools that Congress intended; or (2) minimize the amount of CARES Act

funds that are spent in private schools, but forfeit the discretion to determine how and where

those funds are spent in public schools. Regardless of which option LEAs choose, public

schools, public-school students, and their parents are harmed.

B. The Rule Conflicts with the Plain Language of the CARES Act

65. Neither of the restrictions in Option 2, nor the apportionment calculation in

Option 1, appears anywhere in the CARES Act. They were apparently fashioned by the

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Department to coerce LEAs into apportioning their CARES Act funds under Option 1, because the more LEAs that choose Option 1, the greater the share of federal funds that Congress intended to support public education ends up benefitting private schools. Option 2 works like a poison pill. LEAs that choose Option 2 forfeit their authority to distribute CARES Act funds according to the needs of their districts. LEAs that choose Option 1—and therefore agree to forfeit a greater portion of their CARES Act funds to private schools—at least retain their discretion and avoid the burden of Option 2’s “supplement, not supplant” requirement.
66. Not only do the Rule’s provisions for apportioning and spending CARES Act funds appear nowhere in the CARES Act, they conflict with its plain language.
67. First, the provision of the Rule requiring LEAs to apportion CARES Act funds for equitable services based on the total number of students attending private schools, rather than the number of low-income students attending private schools, see 34 C.F.R. § 76.665(c)(1)(ii)—i.e., Option 1—is unlawful because Section 18005(a) of the CARES Act clearly dictates that LEAs “shall provide equitable services in the same manner as provided under Section 1117 of the ESEA of 1965 to students and teachers in non-public schools.” 134 Stat. 568 (emphasis added). Section 1117 dictates that LEAs must calculate the proportional share of Title I-A funds to be used for equitable services “based on the number of children from low-income families who attend private schools” and reside in the “participating school attendance area” (i.e., the geographic area in which children are normally served by a Title I-A school). 20 U.S.C. § 6320(a)(4)(A) (emphasis added); see also 20 U.S.C. § 6313(a)(2) (defining “school attendance area”). By explicitly incorporating the terms of section 1117’s mandates into the CARES Act, Congress unmistakably instructed LEAs to apportion CARES Act funds for equitable services in exactly the same manner as they do with Title I-A funds. The Rule’s inexplicable directive for LEAs to apportion CARES Act funds based on the total population of private-school students, as opposed to low-income private-school students, is irreconcilable with congressional intent and has no basis in statute, policy, or reason.
68. Second, the provision of the Rule requiring LEAs to limit their spending of CARES Act funds to Title 1 schools if they choose Option 2 unlawfully restricts LEAs’
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discretion to spend CARES Act funds wherever the need for them is greatest. See, e.g., CARES Act § 18003(d)(3), 134 Stat. 566 (authorizing LEAs’ use of ESSER funds for any activities providing principals and school leaders with whatever “resources necessary to address the needs of their individual schools”). The CARES Act expressly guarantees that LEAs in receipt of CARES Act funds will retain flexibility to use those funds in any and all of the public schools within the LEA—not simply in their Title I schools. See CARES Act §§ 18002(c)(1), (3), 18003(d)(1)–(12), 134 Stat. 564–67. The Rule’s conditional restriction of CARES Act funds to Title I schools is irreconcilable with the statutory text and congressional intent and has no basis in policy or reason.
69. Third, Option 2 unlawfully imposes a “supplement, not supplant” requirement. This conditional restriction effectively prohibits LEAs from using CARES Act funds for purposes that Congress explicitly intended them to be used in the CARES Act, including to retain existing staff and maintain existing educational services in the midst of an urgent crisis. See, e.g., CARES Act § 18003(d)(12), 134 Stat. 566-567 (authorizing use of ESSER Fund grants for any “activities that are necessary to maintain the operation of and continuity of services in [LEAs] and continuing to employ existing staff of the [LEA]”); see also CARES Act § 18002(c)(1), 134 Stat. 565 (authorizing use of GEER Fund grants “to support the ability of . . . [LEAs] to continue to provide educational services to their students and to support the on-going functionality of [LEA]”). The Rule’s conditional restriction of CARES Act funds to “supplement,” but not “supplant,” state and local funding sources appears nowhere in—and blatantly conflicts with—the plain text of the CARES Act. In fact, the Rule explicitly concedes that the “supplement, not supplant” restriction actually appears in section 1118(b)(2) of the ESEA—a provision of the ESEA that is cited nowhere in the CARES Act. See 85 Fed. Reg. 39,482 (July 1, 2020); 34 C.F.R. § 76.665(c)(3). As such, this restriction in Option 2 of the Rule is irreconcilable with congressional intent and has no basis in statute, policy, or reason.
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70. Indeed, the Department has explicitly acknowledged that “Congress . . . intended that grantees have substantial flexibility in the use of these [CARES Act] dollars.”49 Nevertheless, the Department’s Rule arbitrarily imposes unreasonable restrictions on LEAs under Option 2 that hamper the LEAs’ flexibility to use CARES Act funds to meet their schools’ needs.
71. Under either Option 1 or Option 2, the Rule ensures the diversion of CARES Act funds away from their intended purpose—broad-based relief for America’s public schools and students.
a. Under Option 1, millions of public-school students will see their districts retaining fewer CARES Act funds on a per-pupil basis than they would if the CARES Act allocations for equitable services for private-school students were calculated in accordance with section 1117 of the ESEA as Congress intended. For example, Pasadena Unified will lose almost $8 million dollars of their CARES Act funding to private schools under Option 1.
b. Under Option 2, all public-school students attending non-Title I schools, many of whom will undoubtedly be low-income or otherwise in need of increased resources, including students with disabilities and English language learners, will be in schools that receive zero CARES Act funds. Instead, the ESSER and GEER Funds that Congress specifically designed to assist all public schools in LEAs that receive CARES Act funds will benefit only a subset of those schools. And for public-school students in Title I schools that do receive CARES Act funds under Option 2, the permissible uses of those funds are severely restricted.
C. The Department Lacks Any Authority to Issue the Rule 72. The Department had no authority to issue the Rule. The Department credits two provisions of federal law—20 U.S.C. § 1221e-3 and § 3474—as conferring rulemaking authority
49 Letter from Mitchell M. Zais, Deputy Sec’y, U.S. Dep’t of Educ., to Gene Dodaro, Comptroller Gen., U.S. Gov’t Accountability Office (June 12, 2020) 3 (available as pp. 375–89 of the U.S. Gov’t Accountability Office, COVID-19 Opportunities to Improve Federal Response and Recovery Efforts, GAO-20-625 (June 2020), available at https://www.gao.gov/products/GAO-20-25).
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upon the Secretary with respect to the CARES Act. See 85 Fed. Reg. 39,481 & 39,488 (July 1, 2020). Neither statute authorizes the Department’s promulgation of this Rule.
a. The first statute, 20 U.S.C. § 1221e-3, confers a general rulemaking authority on the Secretary only to the extent necessary “to carry out functions otherwise vested in the Secretary by law or by delegation of authority pursuant to law, and subject to limitations as may be otherwise imposed by law.” Id. (emphasis added). But because the CARES Act unambiguously prescribes the formula for LEAs to allocate the portion of their CARES Act funds reserved for the provision of equitable services to private-school students, the statute in no way “vest[s] in the Secretary” nor “delegate[s]” to the Secretary any “authority” whatsoever to prescribe the additional conditions or different formula in the Department’s Rule.
b. Similarly, the second statute, 20 U.S.C. § 3474, only authorizes the Secretary to prescribe rules and regulations to the extent “necessary or appropriate to administer and manage the functions of the Secretary or the Department.” Id. Again, because the CARES Act unambiguously prescribes the formula for LEAs to allocate the portion of their CARES Act funds reserved for the provision of equitable services to private-school students, the Department’s Rule was neither “necessary” nor “appropriate” to carrying out the functions of the Secretary or of the Department.
73. In the CARES Act itself, Congress delegated no authority, express or implied, to the Secretary or the Department to issue rules or regulations interpreting the CARES Act generally, nor with regard to the GEER and/or ESSER Funds or the distribution of appropriated funds for equitable services to private-school students in particular.
74. The Department further failed to articulate even a reasonable—much less persuasive—justification for the provisions of the Rule that Plaintiffs challenge.
a. The Department claims, citing no authority, that “[n]othing in the CARES Act suggests Congress intended to differentiate between students based upon the public or nonpublic nature of their school with respect to eligibility for relief.” 85 Fed. Reg. 39,479 (July 1, 2020). The Department blindly overlooks the fact that section 18005(a) of the CARES Act
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explicitly incorporates section 1117 of the ESEA, and section 1117 of the ESEA in fact does differentiate between public- and private-school students in a number of respects.
b. The Department purportedly justifies its ultra vires promulgation of the Rule by characterizing section 18005(a) of the CARES Act as “facially ambiguous.” 85 Fed. Reg. 39,481 (July 1, 2020). The Department’s only explanation as to why § 18005(a) is “facially ambiguous” is that “Congress did not need to add the words ‘in the same manner’ if it simply intended to incorporate ‘section 1117 of the ESEA of 1965’ by reference in the CARES Act. The unqualified phrase ‘as provided in’ alone would have been sufficient.” Id. Unsurprisingly, the Department cites no authority even suggesting that when one congressional statute incorporates another using more words than are strictly necessary, the former statute somehow becomes “facially ambiguous.”
c. The Department observes that “Congress included a separate consultation requirement in section 18005(a) of the CARES Act, and a public control of funds provision in section 18005(b), notwithstanding the fact that section 1117 [of the ESEA] contains precisely parallel provisions.” Id. From there, the Department “reasons” that “[i]f Congress intended to incorporate ‘section 1117 of the ESEA of 1965’ wholesale into the CARES Act, and to have the Department mechanistically apply it, then these provisions in sections 18005(a) and (b) must be deemed superfluous and other key CARES Act text ignored.” Id. This argument is nonsensical in numerous respects—including, but not limited to, the following:
i. Contrary to the Department’s representations, the “consultation” and “public control” provisions of section 1117 are absolutely not—and much less “precisely”— “parallel” to sections 18005(a) and 18005(b) of the CARES Act. For example, section 1117 of the ESEA contains at least 30 subparagraphs defining and describing the legally required “consultation” process under Title I, see generally 20 U.S.C. § 6320(b); in contrast, section 18005(a) of the CARES Act simply directs LEAs to allocate funds for the provision of equitable services to private-school students in the same manner as section 1117, “as determined in consultation with representatives of non-public schools,” see CARES Act § 18005(a), 134 Stat. 568 (emphasis added). The CARES Act’s provisions that make passing references to
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“consultation” or “public control” are in no way rendered “superfluous” by the painstakingly more detailed provisions defining “consultation” and “public control” in section 1117 of the ESEA. On the contrary, those provisions are entirely consistent.
ii. Even assuming that passing statutory references to “consultation” and “public control” in the CARES Act were rendered “superfluous” by the consultation and public control provisions in section 1117 of the ESEA, the Department apparently and illogically assumed that if any provision of section 1117 is not “incorporate[d] . . . wholesale” into the CARES Act, then no provision of section 1117 is “incorporate[d] . . . wholesale” into the CARES Act. See 85 Fed. Reg. 39,481 (July 1, 2020). That is absurd. The Department overlooks that no provision of the CARES Act contradicts, renders superfluous, or even speaks to the formula for calculating the share of federal funds that LEAs must reserve for equitable services to private-school students under section 1117 of the ESEA—except for section 18005(a) of the CARES Act, which unambiguously prescribes that the proportional share be calculated “in the same manner” as that very formula. CARES Act § 18005(a), 134 Stat. 568 (emphasis added). ). Section 1117, in turn, unambiguously specifies a formula based on the number of low-income private-school students, not the total number of private-school students, in an LEA. Whatever ambiguities the Department can rightfully point to in the CARES Act, the formula for equitable services is not one of them.
d. The Department breezily concludes that “[b]y definition, the provisions in section 1117 relating to funding and eligibility for services, e.g., section 1117(a)(1) and (4) and (b)(1)(E) and (J)(ii) [of the ESEA], are inapposite in a CARES Act frame.” 85 Fed. Reg. 39,481 (July 1, 2020). But the Department does not specify what “definition” it is that makes those provisions inapposite, “[b]y definition.” Instead, the Department declares by fiat that “the CARES Act is a separate appropriation allowing separate permissible uses of taxpayer funds” than section 1117 of the ESEA permits. 85 Fed. Reg. 39,481 (July 1, 2020). As detailed above, there is neither statutory, nor legislative-historical, nor logical support for that conclusion.
75. Finally, the Department failed to credibly demonstrate that it had the authority to issue the Rule as an interim final rule. An interim final rule is permissible only “when the
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agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that” public notice-and-comment proceedings were “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b). The Department plainly lacked “good cause.” The Department’s justification was that “the statute requires an LEA to provide services for students and teachers in non-public schools that are equitable in comparison to services provided to public school students and teachers,” but an “LEA cannot begin services for public or non-public school students and teachers without consulting on determining the amount of funds available for those services,” and hence the “national emergency” of COVID-19 required that the Department tell them how to determine the amount. 85 Fed. Reg. 39,483 (July 1, 2020). But Congress already told LEAs exactly how to determine the amount: by using the formula in section 1117 of the ESEA. There was no cause, much less “good cause,” for an interim final rule.
76. For the foregoing reasons, the Rule is unlawful and must be vacated. See Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“We have made clear that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated.’” (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n. 21 (D.C. Cir. 1989))); see also O.A. v. Trump, 404 F. Supp. 3d 109, 118 (D.D.C. 2019) (prescribing “vacatur—i.e., nullification—of [an] Interim Final Rule” as the proper remedy upon concluding that the interim final rule was unlawful). V. THE RULE WILL CAUSE IMMEDIATE AND IRREPARABLE HARM TO PLAINTIFFS
77. The Rule will cause immediate and irreparable harm to Plaintiffs, all of whom have a demonstrable interest in ensuring that CARES Act funds serve their intended recipients.
78. As detailed above, Plaintiffs—who are public school students and parents, LEAs, and the NAACP—will each be irreparably harmed by the Rule.
79. If an LEA chooses the Rule’s Option 1, the LEA will forfeit substantial funds Congress intended it to receive, impeding its ability to provide safe and effective instruction and essential services to the plaintiff public school children. If an LEA chooses Option 2, then plaintiff students in non-Title I schools will receive nothing, and the expenditure of CARES Act
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funds will be severely restricted in Title I schools, denying plaintiff Title I school students important resources that state and local funds are no longer sufficient to cover.
80. The Rule will most negatively impact students in under-resourced schools in high-poverty districts. Students of color are disproportionately represented in these underresourced schools and districts, whereas white and/or affluent students are disproportionately enrolled in the private schools to which the Rule attempts to funnel federal funds. Permanently impairing the education and well-being of our most disadvantaged students during a public health crisis is unconscionable and must be averted.
CAUSES OF ACTION COUNT 1
Ultra Vires Agency Action in Violation of Constitutional Separation-of-Powers 81. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 82. Article I, section 1 of the United States Constitution specifies that “[a]ll legislative Powers herein granted shall be vested in [the] Congress of the United States.” 83. The authority of the executive branch, including executive agencies, to act “must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952); see also Clinton v. City of New York, 524 U.S. 417, 438 (1998) (“[N]o provision in the Constitution . . . authorizes the President to enact, to amend, or to repeal statutes.”). 84. An executive agency acts ultra vires when it acts in excess of its statutory authority conferred by Congress. 85. Section 18005(a) of the CARES Act requires LEAs to calculate the proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools.” See CARES Act § 18005(a), 134 Stat. 568 (incorporating by reference 20 U.S.C. § 6320(a)(4)(A)).
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86. The regulations promulgated by the Department’s Rule are ultra vires and violate the constitutional principles of separation-of-powers in several respects:
a. There is no provision of the CARES Act, nor of any other federal law, permitting LEAs to apportion CARES Act funds for the provision of equitable services to private-school students based on the total number of students attending private schools, rather than the number of low-income students attending private schools. Accordingly, 34 C.F.R. § 76.665(c)(1)(ii) is ultra vires.
b. There is no provision of the CARES Act, nor of any other federal law, requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools. Accordingly, 34 C.F.R. § 76.665(c)(1)(i) is ultra vires.
c. There is no provision of the CARES Act, nor of any other federal law, requiring LEAs to calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule embodied in section 1118(b) of the ESEA. Accordingly, 34 C.F.R. § 76.665(c)(3) is ultra vires.
87. By unilaterally imposing its interpretations of the CARES Act via the Rule that are contrary to the above, Defendants unconstitutionally usurped Congress’s legislative power in violation of the constitutional principle of separation-of-powers.
88. Absent declaratory and injunctive relief suspending and vacating these regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 2 Violation of the Spending Clause of the U.S. Constitution 89. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
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90. Article I, section 8 of the United States Constitution (the “Spending Clause”) states that “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”
91. The federal government may not impose conditions on spending that (1) are so coercive that they compel, rather than encourage, the recipient to comply with federal policy priorities; (2) are ambiguous; (3) are retroactive; or (4) are unrelated to the federal interest in the particular program. NFIB, 567 U.S. at 575–78; South Dakota v. Dole, 483 U.S. 203, 206–08 (1987).
92. Congress has not delegated any authority to the Department to impose spending requirements on the allocation and/or use of GEER or ESSER Fund monies.
93. To the extent that Congress has delegated any authority to the Department to undertake rulemaking regarding the use of GEER or ESSER Fund monies, the Rule violates the Spending Clause.
94. The Department’s interpretation of Section 18005 of the CARES Act, as codified in the Rule, violates the relatedness requirement under the Spending Clause because it is contrary to Congress’s plainly expressed intent in the CARES Act to require SEAs and LEAs to follow Section 1117 of the ESEA when apportioning CARES Act funds for equitable services.
95. The Rule also violates the requirement that conditions on the spending of federal funds must be made “unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Congress did not unambiguously impose a requirement that LEAs calculate and set aside GEER and ESSER Fund monies for equitable services to all private-school students and teachers or else limit their use of GEER and ESSER Fund monies to Title I schools; indeed, Congress unambiguously did the opposite.
96. Finally, the Department’s Rule imposed improper “post-acceptance” restrictions on the uses of federal funds. Id. at 17, 25. States—and by extension, LEAs that applied for funding, including Plaintiffs DPS, Pasadena Unified, SPS, DeKalb County, and Broward County—could not “knowingly accept conditions of which they [were] ‘unaware’ or which they [were] ‘unable to ascertain.’” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291,
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296 (2006) (quoting Pennhurst, 451 U.S. at 17). Because the Department’s Rule imposed “retroactive” conditions on congressionally appropriated funds, Defendants have violated the Spending Clause. Pennhurst, 451 U.S. at 25; see also NFIB, 567 U.S. at 585.
97. The States in which Plaintiffs reside did not know of the Department’s unlawful interpretation at the time they applied for and received emergency aid grants from the GEER and ESSER Funds. The States in which Plaintiffs reside signed Certification agreements attesting to the requirements under the CARES Act. Plaintiffs DPS, SPS, Pasadena Unified, DeKalb County, and Broward County likewise applied to their SEAs for subgrants pursuant to the terms and conditions of the CARES Act. Therefore, the States and LEAs were unable to exercise their choice knowingly, cognizant of the consequences of their participation. See Sch. Dist. v. Sec’y of the United States Dep’t of Educ., 584 F.3d 253, 262 (6th Cir. 2009) (finding that plaintiff school districts had standing to bring suit against the Department of Education under the Spending Clause over certain provisions in the No Child Left Behind Act).
98. Absent declaratory and injunctive relief suspending and vacating the Rule, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 3 Violation of the Administrative Procedure Act:
Agency Action Not in Accordance with Law 99. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 100. The APA requires that a court hold unlawful and set aside any agency action, findings, and conclusions that are found to be in excess of statutory authority or not in accordance with law. 5 U.S.C. § 706(2)(A), (C). 101. The following regulations promulgated via the Department’s Rule are not in accordance with law, including duly enacted federal statutes and the Constitution of the United States of America:
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a. 34 C.F.R. § 76.665(c)(1)(ii). Directing LEAs to apportion CARES Act funds for the provision of equitable services to private-school students based on the total number of students attending private schools, rather than the number of low-income students attending private schools, conflicts with the plain text of the CARES Act and represents an unconstitutional condition on spending in violation of Article I, section 8 of the United States Constitution.
b. 34 C.F.R. § 76.665(c)(1)(i). Requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools conflicts with the plaint text of the CARES Act and represents an unconstitutional condition on spending in violation of Article I, section 8 of the United States Constitution.
c. 34 C.F.R. § 76.665(c)(3). Requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule embodied in section 1118(b) of the ESEA conflicts with the plain text of the CARES Act and represents an unconstitutional condition on spending in violation of Article I, section 8 of the United States Constitution.
102. Absent declaratory and injunctive relief suspending and vacating these regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 4 Violation of the Administrative Procedure Act: Agency Action in Excess of Statutory Authority 103. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
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104. The APA requires that a court hold unlawful and set aside any agency action, findings, and conclusions that are found to be in excess of statutory authority or not in accordance with law. 5 U.S.C. § 706(2)(A), (C).
105. Congress did not authorize the Department to interpret or make rules regarding section 18005 of the CARES Act. In particular, the following regulations promulgated via the Rule are unauthorized by and contrary to section 18005 of the CARES Act:
a. 34 C.F.R. § 76.665(c)(1)(ii). There is no provision of the CARES Act, nor of any other applicable federal law, directing LEAs to apportion CARES Act funds for the provision of equitable services to private-school students based on the total number of students who attend private schools, rather than the number of low-income students who reside in the district and attend private schools.
b. 34 C.F.R. § 76.665(c)(1)(i). There is no provision of the CARES Act, nor of any other federal law, requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools.
c. 34 C.F.R. § 76.665(c)(3). There is no provision of the CARES Act, nor of any other federal law, requiring LEAs to calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule deriving from section 1118(b) of the ESEA.
106. Absent declaratory and injunctive relief suspending and vacating these regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
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COUNT 5 Violation of the Administrative Procedure Act:
Arbitrary and Capricious Agency Action 107. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 108. The APA requires that a court hold unlawful and set aside any agency action, findings, and conclusions found to be arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A). 109. An agency’s rule is arbitrary and capricious if the agency has “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 110. Defendants failed to consider the impact of the Department’s Rule on economically vulnerable students, and students of color in particular, who are disproportionately represented in public schools and under-represented in private schools. Yet the express purpose of Title I of the ESEA was to achieve educational equity for these precise populations. By allocating ESSER Funds—the larger of the two funds dedicated to K-12 schools under the CARES Act’s Education Stabilization Fund—according to state and district Title I funding allotments, and by further instructing LEAs to calculate expenditures for equitable services in the same manner as they calculate such expenditures under Title I, section 1117, Congress made very clear its intention to center federal COVID-19 response and relief funds around students with the highest demonstrated need. Defendants’ failure to consider the obvious fact that inadequately funded public schools will bear the brunt of the nation’s fiscal crisis was arbitrary and capricious. 111. Defendants failed to consider the impact of the Department’s Rule on students who attend non-Title I schools in districts that serve primarily Title I schools.
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112. Defendants failed to consider the impact of the Department’s Rule on school districts that serve only Title I schools, who cannot choose between these two budgeting options and will necessarily be bound by the Rule’s burdensome supplement-not-supplant mandate.
113. Defendants entirely failed to consider the administrative burden on LEAs, which must now dedicate precious time and resources to understand the impact on their district under Options 1 and 2, and then make an unlawful and unreasonable choice between retaining their full amount of federal funding or serving all of their public-school students equitably.
114. Defendants instead seem to have foregrounded the needs of private schools—who are undoubtedly facing their own set of challenges in light of COVID-19—even though Congress did not include the unique interests of private schools generally in the text of the CARES Act. In fact, Congress expressly instructed LEAs to set aside only that portion of their CARES Act funds sufficient to meet the needs of disadvantaged children who attend private schools.
115. Specifically, the following regulations promulgated by the Department’s Rule are arbitrary and capricious:
a. 34 C.F.R. § 76.665(c)(1)(ii). Requiring LEAs to apportion CARES Act funds for the provision of equitable services to private-school students based on the total number of students attending private schools, rather than the number of low-income students attending private schools, if they share their funds with non-Title I schools relies on factors which Congress has not intended the Department to consider, entirely fails to consider an important aspect of the problem, offers an explanation for a decision that runs counter to the evidence before the agency, and/or is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.
b. 34 C.F.R. § 76.665(c)(1)(i). The Department’s dictate requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools relies on factors which Congress has not intended the Department to consider, entirely
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fails to consider an important aspect of the problem, and offers an explanation for a decision that runs counter to the evidence before the agency, and/or is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.
c. 34 C.F.R. § 76.665(c)(3). The Department’s dictate requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule embodied in section 1118(b) of the ESEA relies on factors which Congress has not intended the Department to consider, entirely fails to consider an important aspect of the problem, and offers an explanation for a decision that runs counter to the evidence before the agency, and/or is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.
116. Absent declaratory and injunctive relief suspending and vacating these regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 6 Violation of the Administrative Procedure Act: Agency Action Without Observance of Procedure Required by Law 117. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 118. The APA requires that a court hold unlawful and set aside any agency action, findings, and conclusions found to be without observance of procedure required by law. 5 U.S.C. § 706(2)(D). 119. In order to promulgate a legislative rule bearing the force of law, an executive agency must first publish a “[g]eneral notice of proposed rulemaking” in the Federal Register. 5 U.S.C. § 553(b). The agency must describe “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” Id. § 553(b)(3). This procedural requirement is generally referred to as the “notice” requirement.
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120. Furthermore, the agency must provide “interested persons” with the “opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” Id. § 553(c). This requirement is referred to as “comment.”
121. The Department’s Rule is a legislative rule that was adopted without complying with the APA’s notice-and-comment requirements.
122. The Department’s Rule was issued as an interim final rule—meaning it became effective and binding on LEAs the day it was published in the Federal Register. However, the Department failed to establish “good cause” to bypass notice-and-comment because rulemaking was neither impracticable nor contrary to the public interest. See 5 U.S.C. § 553(b).
123. Absent declaratory and injunctive relief suspending and vacating the Rule and its regulations, Plaintiffs will be immediately, continuously, and irreparably harmed by Defendants’ unlawful actions.
COUNT 7 Declaratory Relief 124. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 125. Plaintiffs contend that: a. The Department’s Rule requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to expend their CARES Act funds exclusively in their Title I schools, see 34 C.F.R. § 76.665(c)(1)(i), is unlawful because it conflicts with the plain text of the CARES Act and violates the United States Constitution and federal Administrative Procedure Act. b. The Department’s Rule requiring LEAs that calculate their proportionate share of CARES Act funds reserved for the provision of equitable services to private-school students “based on the number of children from low-income families who attend private schools” to abide by the “supplement, not supplant” rule embodied in section 1118(b) of the ESEA, see 34
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C.F.R. § 76.665(c)(3), is unlawful because it conflicts with the plain text of the CARES Act and

violates the United States Constitution and federal Administrative Procedure Act.

c. The Department’s Rule permitting LEAs to apportion CARES Act funds

for the provision of equitable services to private-school students based on the total number of

students attending private schools, rather than the number of low-income students attending

private schools, see 34 C.F.R. § 76.665(c)(1)(ii), is unlawful because it conflicts with the plain

text of the CARES Act and violates the United States Constitution and federal Administrative

Procedure Act.

126. As laid out in Defendants’ justification for the Rule, Defendants dispute

Plaintiffs’ contentions.

127. An actual controversy now exists between Plaintiffs and Defendants.

128. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration of their

“rights and other legal relations,” id., consistent with the above.

PRAYER FOR RELIEF

129. WHEREFORE, Plaintiffs request that this Court enter judgment in their favor

and grant the following relief:

a.

Declare the Rule unlawful within the meaning of 5 U.S.C. § 706(2)(A),

(C), and (D);

b. Preliminarily and permanently enjoin the Department and any and all of

its officers, employees, and/or agents from applying and/or enforcing the Rule or any version

thereof;

c. Vacate and set aside the Rule and all versions thereof;

d. Award Plaintiffs reasonable costs and expenses, including attorney’s fees;

and

e. Grant such other and further relief as the Court deems just and proper.

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Dated: August 11, 2020

Respectfully submitted,
MUNGER, TOLLES & OLSON LLP TAMERLIN J. GODLEY (Admitted Pro Hac Vice) JONATHAN KRAVIS (D.C. Bar No. 973780) ADELE M. EL-KHOURI (D.C. Bar No. 1025090) JESSICA REICH BARIL (Admitted Pro Hac Vice) DAVID P. THORESON (Admitted Pro Hac Vice)

By:

/s/ Adele M. El-Khouri

ADELE M. EL-KHOURI

TAMERLIN J. GODLEY Tamerlin.Godley@mto.com JESSICA REICH BARIL Jessica.Baril@mto.com DAVID P. THORESON David.Thoreson@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, Fiftieth Floor Los Angeles, California, 90017 Telephone: (213) 683-9100 Facsimile: (213) 687-3702
JONATHAN KRAVIS Jonathan.Kravis@mto.com ADELE M. EL-KHOURI Adele.El-Khouri@mto.com MUNGER, TOLLES & OLSON LLP 1117 F. Street, N.W., Seventh Floor Washington, D.C. 20004–1357 Telephone: (202) 220-1100 Facsimile: (202) 220-2300
Counsel for All Plaintiffs Additional Co-Counsel for All Plaintiffs Listed on Next Page

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Additional Co-Counsel for All Plaintiffs

BACARDI JACKSON bacardi.jackson@splcenter.org (Admitted Pro Hac Vice) CHRISTINE BISCHOFF christine.bischoff@splcenter.org (Admitted Pro Hac Vice) KATHERINE DUNN katherine.dunn@splcenter.org (Admitted Pro Hac Vice) LINDSEY RUBINSTEIN lindsey.rubinstein@splcenter.org (Admitted Pro Hac Vice) SAM BOYD sam.boyd@splcenter.org (Admitted Pro Hac Vice) MICHAEL TAFELSKI michael.tafelski@splcenter.org (Admitted Pro Hac Vice)
SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 Telephone: (334) 315-0179 Facsimile: (334) 956-8481

WENDY LECKER WLecker@edlawcenter.org (Admitted Pro Hac Vice) JESSICA LEVIN JLevin@edlawcenter.org (Admitted Pro Hac Vice)
EDUCATION LAW CENTER 60 Park Place, Suite 300 Newark, New Jersey 07102 Telephone: (973) 624-1815 Facsimile: (973) 624-7339

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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), et al.,
Plaintiffs,
v.
ELISABETH DEVOS, et al.,
Defendants.

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

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ REQUEST FOR PARTIAL SUMMARY JUDGMENT

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INTRODUCTION In a time of global pandemic and economic turmoil, Congress saw fit to provide emergency funding for services to support schools throughout the nation. In doing so, Congress mandated that these services be provided equitably—for the benefit of both public and non-public school students. The Department of Education’s interpretation of the Coronavirus Aid, Relief, and Economic Security Act, which ensures an equitable distribution between public and private schools, is a reasonable one entitled to deference. Because Plaintiffs fail to demonstrate that the agency acted contrary to Congress’s mandate in issuing its Interim Final Rule, their motion1 should be denied.
BACKGROUND
I. STATUTORY BACKGROUND This case arises from an interim final rule issued by the Department of Education to
implement the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281 (2020). The CARES Act—which Congress enacted to help many sectors of society respond to the coronavirus pandemic—appropriates more than $16 billion into two relief funds, and charges the Department of Education with allocating those funds to the Nation’s public schools. CARES Act §§ 18002–03. Public school districts that receive CARES Act funds must then “provide equitable services” to private-school students “in the same manner as provided under” a different statute: Section 1117 of the Elementary and Secondary Education Act of 1965 (ESEA), Pub. L. No. 89-10 (1965) (codified at 20 U.S.C. § 6320). CARES Act § 18005. Plaintiffs argue that, because the rule allegedly apportions CARES Act funds for equitable services to private school students in a manner inconsistent with section 1117 of the ESEA, the rule is unlawful on a variety of theories.
1 This Court converted Plaintiffs’ Motion for Preliminary Injunction, ECF No. 36, into a motion for partial summary judgment. See ECF No. 41 (setting briefing schedule after telephonic hearing regarding scheduling). Defendants therefore address only the pure questions of law that are properly presented at this early stage of litigation, before the agency has had an opportunity to produce the administrative record.
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A. The Elementary and Secondary Education Act of 1965 The ESEA is a comprehensive statutory scheme that supports students in the Nation’s
elementary and secondary schools. Title I-A of the ESEA is designed to “improv[e] the academic achievement of” students who are failing (or are at risk of failing) to meet academic standards. 20 U.S.C. §§ 6314(a), 6315(c). Title I-A accomplishes this by providing federal funding through States to local school districts (referred to as local educational agencies, or LEAs) based primarily on the number of economically disadvantaged children who reside in each district. Id. §§ 6332– 37; see id. § 6333(c) (establishing the parameters for allocating Title I-A funds among States and their constituent public school districts).
The goal of Title I is to provide “all children significant opportunity to receive a fair, equitable, and high-quality education,” regardless of whether those children attend a public or private school. See 20 U.S.C. §§ 6301–02. To that end, section 1117 of the ESEA (codified at 20 U.S.C. § 6320) requires local school districts to supply academic services—such as specialeducation services, counseling, mentoring, and tutoring—to certain children enrolled in private schools. Id. § 6320(a)(1)(A). Such services must “be equitable in comparison to services and other benefits for public school children” who benefit from Title I-A funds. Id. § 6320(a)(3)(A). Accordingly, section 1117 instructs local school districts to set aside funds for private school students “equal to the proportion of funds allocated to participating [Title I-A] school attendance areas based on the number of children from low-income families who attend private schools” and reside in those attendance areas. Id. § 6320(a)(4)(A)(i). These funds are then used to provide services to private-school students who are eligible to receive them. A private-school student’s eligibility for these services does not turn on his or her socioeconomic standing, despite the fact that the amount of money a school district must reserve to pay for such services is calculated by reference to the number of low-income private-school students who live in participating Title I-A attendance areas within the district’s borders. Instead, a student’s eligibility depends on the extent to which he or she is “failing, or . . . at risk of failing, to meet” applicable academic standards along with residence in a participating Title I-A attendance area. Id. § 6315(c)(1)(B).
Section 1117 separately requires local school districts to “timely and meaningful[ly]
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consult[] with appropriate private school officials.” 20 U.S.C. § 6320(a)(1)(A). The statute sets forth a detailed consultation procedure that specifies the issues that must be discussed, id. § 6320(b)(1)(A)-(L), (4); the way disagreements must be raised, id. § 6320(b)(2), (6); and the timeframe in which consultation must occur, id. § 6320(b)(3). The statute also requires that “[t]he control of funds provided under” Title I-A of the ESEA “shall be in a public agency.” Id. § 6320(d)(1).
B. The CARES Act The CARES Act appropriated over $16 billion in financial assistance that can be used to
support elementary and secondary schools, and instructed the Secretary of Education to administer and allocate that money through two separate funds.
The Governor’s Emergency Education Relief (GEER) Fund provides emergency grants to state governors. CARES Act § 18002. Governors may use GEER funds to “support . . . any . . . education related entity within the State that the Governor deems essential for carrying out emergency educational services to students.” Id. § 18002(c). Governors may also use GEER funds to give “emergency support . . . grants to local education agencies that the State educational agency deems have been most significantly impacted by coronavirus.” Id. The Department of Education must allocate GEER funds among States using a specified statutory formula. Id. § 18002(b) (directing the Secretary to allocate funds based 60 percent on a State’s “relative population of individuals aged 5 through 24,” and 40 percent on the amount of Title I-A funds that State would receive under the ESEA, 20 U.S.C. § 6333(c)).
The Elementary and Secondary School Emergency Relief (ESSER) Fund provides emergency grants for elementary and secondary schools. CARES Act § 18003. The Department of Education must allocate ESSER funds among States “in the same proportion as each State received under [Title I-A] of the ESEA . . . in the most recent fiscal year.” Id. § 18003(b). Similarly, States must allocate at least 90 percent of their ESSER funds to their school districts “in proportion to the amount of funds such local educational agencies and charter schools that are local educational agencies received under [Title I-A] of the ESEA . . . in the most recent fiscal year.”
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Id. § 18003(c). A school district may use ESSER funds to pay for services that fall within twelve broad categories of expenditures, including emergency preparedness; cleaning supplies; distancelearning technology; meal services; mental health; “[a]ny activity authorized by the ESEA” or several other education-related statutes; and any “[o]ther activities that are necessary to maintain the operation of and continuity of services in [LEAs] and continuing to employ existing staff.” Id. § 18003(d).
The CARES Act directs GEER and ESSER funds to public school districts, but because the coronavirus pandemic has affected both public and private institutions, section 18005 of the CARES Act instructs school districts that receive GEER or ESSER funds to “assist[] . . . nonpublic schools” using the CARES Act funds they have been allocated. CARES Act § 18005 (casing fixed). Specifically, local districts “shall provide equitable services in the same manner as provided under section 1117 [20 U.S.C. § 6320] of the ESEA of 1965 to students and teachers in non-public schools.” Id. § 18005(a) (referencing 20 U.S.C. § 6320). Section 18005 further requires that these equitable services must be “determined in consultation with representatives of non-public schools.” Id. Finally, section 18005 requires that “[t]he control of funds for” equitable services provided to private school students “shall be in a public agency.” Id. § 18005(b).
II. REGULATORY BACKGROUND In April 2020, the Department issued guidance to help public school districts implement
their section 18005 obligation to provide equitable services to students and teachers at private schools. U.S. Dep’t of Educ., Providing Equitable Services to Students and Teachers in NonPublic Schools Under the CARES Act Programs (Apr. 30, 2020) (hereinafter “Guidance Document”), https://oese.ed.gov/files/2020/06/Providing-Equitable-Services-under-the-CARESAct-Programs-Update-6-25-2020.pdf. The Department’s guidance noted that the CARES Act— unlike Title I-A of the ESEA—places no restrictions on the eligibility of private-school students and teachers to receive “equitable services” under section 18005. The guidance thus advised that GEER and ESSER funds may be used to “serve all non-public school students and teachers without regard to family income, residency, or eligibility based on low achievement.” Id. at 3. The
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guidance also noted that the CARES Act permits public school districts that receive GEER or ESSER funds to spend that money to help all public schools within the district, and not merely schools with a sufficient number of low-income students to qualify for funding under Title I-A of the ESEA. The guidance thus advised that, when calculating the share of “equitable services” that public school districts must give private school students under section 18005, public school districts must account for the private schools’ total enrollment—not merely for the number of lowincome students who reside in a Title I-A school attendance area. Id. at 6–7.
In July 2020, the Department formalized its guidance in an interim final rule. CARES Act Programs; Equitable Services to Students and Teachers in Non-public Schools, 85 Fed. Reg. 39,479. The Department issued the rule without prior notice and comment because of the significant educational disruptions caused by the coronavirus pandemic and the need for certainty among recipients of CARES Act funding. Specifically, section 18005 of the CARES Act forbids public school districts that receive GEER or ESSER funds from using those funds without consulting with the private schools within their boundaries, which in turn requires districts to “determin[e] the amount of funds available for [equitable] services.” Id. at 39,483. The Department provided a 30-day comment period, however, and committed to considering the views of interested parties in determining whether to undertake additional rulemaking. Id. at 39,484.
The Department explained that the rule was necessary to “resolve[] a critical ambiguity . . . with respect to the equitable services obligation owed by LEAs that receive CARES Act funds to students and teachers in non-public schools.” 85 Fed. Reg. at 39,479. The Department noted that, apart from requiring equitable services to be provided “in the same manner as provided under section 1117” of the ESEA, section 18005 did not specify how to ensure that the services provided are in fact “equitable.” Id. at 39,479–81. The Department further noted that section 1117 of the ESEA is inconsistent with the CARES Act in several crucial respects. For example, section 1117 forbids private-school students from benefiting from equitable services provided under the ESEA unless they are failing (or in danger of failing) to satisfy certain curricular standards. 20 U.S.C. § 6320. Section 1117 also requires private school students to reside in a Title I-A school attendance area to receive services. Id. § 6320(a)(4)(A). But both
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GEER and ESSER funds may plainly be used for the benefit of all students, not merely those students in academic jeopardy or who reside in a particular part of a district. The Department therefore concluded that rulemaking was necessary to resolve these ambiguities. See 85 Fed. Reg. at 39,479 (recognizing that the Department was obliged to “construe the CARES Act based on plain meaning, context, and coherence within the overall statutory structure . . . and fit, if possible, all its parts into a harmonious whole”).
The Department then explained that a “mechanistic application” of section 1117 to section 18005’s equitable-services requirement would “disadvantage” private-school students and contravene congressional intent. 85 Fed. Reg. at 39,479. The Department noted that, if section 1117’s proportional-allocation provisions were applied to CARES Act funds, public school districts would only be required to reserve funds for private schools commensurate to the number of low-income students at each private school who reside in a Title I-A school area—while remaining free to spend their portion of the funds on projects benefiting all public-school students. Id. at 39,482. As the Department explained, “the CARES Act does not limit services based on residence and poverty,” so “it stands to reason that an LEA should not use residence and poverty to determine the proportional share of available funds for equitable services to non-public school students.” Id. at 39,482–83.
The rule’s interpretation of section 18005 differs from the Department’s prior guidance in that it accords public school districts more choice about how to satisfy the equitable-services requirement. The Department sought to broaden the number of options available to such districts in response to criticism from certain States that its guidance was too inflexible. 85 Fed. Reg. at 39,480. Under the rule, school districts have two pathways to compliance. First, a school district can commit to using its CARES Act funds exclusively on schools participating in Title I-A of the ESEA—that is, on schools with high instances of poverty. Id. at 39,482. If so, that district need only reserve funds for equitable services as specified by section 1117’s proportional-allocation provisions—that is, based on the number of low-income students enrolled at private schools who reside in a Title I-A area. 34 C.F.R. § 76.665(c)(1)(i). Second, a school district may instead commit to using CARES Act funds to benefit all schools, not merely schools with high instances
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of poverty. Id. at 39,482. To maintain equity, that district must then reserve funds for equitable services using the same measure—that is, the number of all students enrolled at participating private schools. 34 C.F.R. § 76.665(c)(1)(ii).
The Department determined that its interpretation was the appropriate way to ensure that “[e]ducational services and other benefits for students and teachers in non-public elementary and secondary schools [] be equitable in comparison to services and other benefits for public school students and teachers participating in CARES Act programs.” 34 C.F.R. § 76.665(d).2
ARGUMENT Under Rule 56, a party is entitled to summary judgment if “there is no genuine dispute as to any material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where, as here, “a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal[.]” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). In such cases, the court must limit its review to the administrative record” and the facts and reasons contained therein to determine whether the agency’s action was “consistent with the relevant APA standard of review.” Policy & Research, LLC v. United States Dep’t of Health & Human Servs., 313 F. Supp. 3d 62, 74 (D.D.C. 2018) (quoting Ho–Chunk, Inc. v. Sessions, 253 F. Supp. 3d 303, 307 (D.D.C. 2017)); see also Caiola v. Carroll, 851 F.2d 395, 398 (D.C. Cir. 1988). Under the APA, courts must uphold agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[,]” 5 U.S.C. § 706(2)(A), or is “in excess of statutory jurisdiction, authority, or limitations,” id. § 706(2)(C). The court’s function is simply “to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985) (citation omitted). Here, because the administrative record has not yet been
2 On May 15, 2020, the House of Representatives passed legislation, referred to as the “HEROES Act,” that would amend the CARES Act to require that “equitable services shall be provided by the local educational agency in which the students reside, and the amount of funds available for such equitable services shall be based on the number of nonpublic school students who were identified in the calculation under section 1117(c)(1) of the ESEA for purposes of Title I-A during the 2019–2020 school year relative to the sum of such students in public schools” that same year. See HEROES Act, H.R. 6800, 116th Cong. § 10604 (2020).
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produced by the agency, only the threshold legal question of the agency’s authority to issue the rule is properly before the Court.
PLAINTIFFS HAVE NOT SHOWN THAT THE AGENCY ACTED WITHOUT LEGAL AUTHORITY A. Plaintiffs’ principal arguments resolve to the same contention: That the Department’s
rule should be set aside because it cannot be reconciled with section 18005 of the CARES Act, and because the CARES Act did not give the Department authority to interpret section 18005. See ECF No. 36-1, Mot. for Prelim. Inj. or Summ. J., “Mot.,” at 14–21 (arguing rule is ultra vires); id. at 22–23 (contending rule is inconsistent with the Spending Clause); id. at 23–25 (challenging rule under APA as exceeding statutory authority). No matter how framed, these arguments lack merit.
Section 18005 of the CARES Act requires public school districts to provide equitable services to private school students “in the same manner” as that specified in section 1117 of the ESEA. CARES Act, § 18005. Section 1117 applies to certain equitable services provided within the ambit of Title I-A of the ESEA, and includes a proportional-apportionment formula based on the number of low-income students who reside in a Title I-A public school attendance area and are enrolled in a private school. 20 U.S.C. § 6320(a)(4)(A). But as the Department explained, section 1117—and the ESEA more broadly—cannot be imported into the CARES Act scheme in “mechanistic” fashion. 85 Fed. Reg. 39,479.
Two examples illustrate the point. First, section 1117 prohibits private-school students from receiving “equitable services” using Title I-A funds unless they are at risk of failing out of school. 20 U.S.C. § 6320(a)(1)(A) (restricting eligibility for services to “eligible children”); id. § 6315(c)(1)(B) (defining “eligible children” as “children identified by the school as failing, or most at risk of failing, to meet . . . State academic standards”). But the plain text of the CARES Act makes clear that GEER and ESSER funds may be used to pay for a broad range of services that benefit all students—such as disaster-preparedness planning, sanitation supplies, distancelearning technology, and pandemic-response plans developed in coordination with authorities at every level of government. CARES Act §§ 18002(c), 18003(d); see 85 Fed. Reg. at 39,480. Incorporating section 1117’s “eligible children” restriction into the CARES Act would contravene
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those other CARES Act provisions by forcing private schools to restrict these services to the academically challenged—for instance, by implementing a pandemic-response plan that applies only to that subset of students, or by purchasing sanitation supplies that can be used only to clean certain desks.
Second, two of section 18005’s provisions are substantively identical to two provisions in section 1117. See 85 Fed. Reg. at 39,481. Section 18005(a) requires public school districts to consult with private schools in deciding how equitable services should be provided, just like section 1117(b). Compare CARES Act § 18005(a) with 20 U.S.C. § 6320(b). And section 18005(b) requires public schools to maintain control over all CARES Act funds, using language nearly identical to that in section 1117(d). Compare CARES Act § 18005(b) with 20 U.S.C. § 6320(d). If the CARES Act’s use of the phrase “in the same manner” incorporated every jot and tittle of section 1117, both the consultation and the public-control provisions of section 18005 would be superfluous.
For these reasons, the Department concluded, the phrase “in the same manner” must mean that section 18005 incorporates something less than every provision of section 1117.
B. In light of the disparate purposes of the CARES Act (to provide emergency relief to all students and schools) and Title I-A (to provide services for low-achieving students), and the text of the statute, the Department reasonably concluded that “in the same manner” does not incorporate section 1117’s proportional-apportionment provisions. Those provisions— developed in the wholly separate context of equitable services provided under Title I-A—require public school districts to reserve funds in proportion to the number of low-income students enrolled in private schools who reside in Title I attendance areas. 20 U.S.C. § 6320(a)(4)(A). As noted, however, Congress designed both the GEER and the ESSER programs to permit expenditures across a wide swath of areas that clearly benefit all students. See CARES Act §§ 18002(c), 18003(d). Given this tension, the Department properly declined to interpret the phrase “in the same manner” to import section 1117’s proportional-apportionment provisions into the CARES Act. See King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (“[O]ftentimes the meaning— or ambiguity—of certain words or phrases may only become evident when placed in context.”)
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(citation and internal quotation marks omitted)); Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290 (2010) (holding that courts “construe statutes, not isolated provisions”). Indeed, the word “manner” suggests that section 18005 refers to the way in which services are provided under section 1117, and not how the money to pay for those services is apportioned. See American Heritage Dict. 763 (2d College ed. 1985) (defining “manner” as “[a] way of doing something or the way in which a thing is done or happens”).3
In any event, “[t]he power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974) (emphasis added). The phrase “in the same manner” is at a minimum ambiguous with regard to the question of whether Congress intended section 1117’s proportional-apportionment provisions to apply to “equitable services” provided with CARES Act funds. To the extent the text of section 18005 does not supply a clear answer to that question, the Department may use rulemaking to “develop a harmonious construction faithful” to Congress’s directive that billions of dollars in emergency appropriations be used equitably. 85 Fed. Reg. at 39,479. Indeed, the Secretary of Education has broad authority to “make, promulgate, [and] issue . . . rules and regulations governing the manner of operation of, and governing the applicable programs administered by, the Department.” 20 U.S.C. § 1221e-3; accord id. § 3474 (“The Secretary is authorized to prescribe such rules and regulations as the Secretary determines necessary or appropriate to administer and manage the functions of the Secretary or the Department.”).4 And it is well settled that, “whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the
3 Furthermore, where Congress intended to prescribe the apportionment of funds in the CARES Act, it did so expressly. See, e.g., CARES Act § 18002(b) (“The amount of each grant under subsection (a) shall be allocated by the Secretary to each State as follows . . . .”). 4 In Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash Aug. 21, 2020) (order granting preliminary injunction), the court found that there is no delegation of rulemaking authority to the Department with regard to section 18005 of the CARES Act. However, 20 U.S.C. §§ 1221e–3 and 3474 can abrogate the need for Congress to speak to the Department’s rulemaking authority each time it legislates. Congress routinely passes laws that the Department implements through rulemaking without each law explicitly referencing its authority.
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given situation has depended upon more than ordinary knowledge respecting the matter subjected to agency regulations,” an agency’s resolution of a statutory ambiguity warrants deference. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (citation omitted).
Deference is appropriate where, as here, the agency’s interpretation of an ambiguous statute is reasonable. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (“we must uphold the NIH’s interpretation of Dickey-Wicker if it is but ‘reasonable’” (citing Chevron, 467 U.S. at 844)); Milk Train, Inc. v. Veneman, 310 F.3d 747, 752 (D.C. Cir. 2002) (deference owed to agency interpretation of the 2000 Appropriations Act). The Department of Education resolved the tension between the CARES Act and the provisions of section 1117 by reference to Congress’s command that the services provided to private schools be “equitable.” CARES Act § 18005(a). The Department determined that it is inequitable to apportion expenditures for private schools on the basis of low-income students residing in Title I-A school attendance areas when public school districts may use their share of CARES Act funds to benefit all schools and students. 85 Fed. Reg. at 39,483. In the Department’s expert judgment, equity in this context instead demands either that: (1) public school districts that spend CARES Act funds to benefit all schools and students apportion private-school funds based on total enrollment; or (2) public school districts that choose to apportion private-school funds based on low-income enrollment then limit their own spending to low-income schools. Id. at 39,482. Those, of course, are the same two pathways to section 18005 compliance that the challenged rule sets forth. Id.5
Plaintiffs dispute (Mot. 18, 20) that section 18005 is ambiguous. In their view, if Congress had intended that CARES Act funds be apportioned to private schools based on total enrollment, Congress would have written section 18005 to cross-reference section 8501 of the ESEA, which
5 Plaintiffs additionally contend that the rule imposes a “supplement, not supplant” restriction that “prohibits the LEA from using CARES Act funds to cover expenditures that would normally be covered by state and local funds.” Mot. 11 (citing 20 U.S.C. § 6321(b)(1)). To the extent this Court believes that the language in the rule must be read as imposing an improper restriction on CARES Act funds, the proper course would be to sever the “supplement not supplant” provision rather than to vacate the rule in its entirety. See MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001).
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is codified at 20 U.S.C. § 7881. That statute governs equitable services rendered under different ESEA programs, and it is functionally identical to section 1117 in all but one respect: Unlike section 1117, section 8501 requires public school districts to reserve funds for private schools in proportion to their total enrollment in the relevant program. Id. § 7881(a)(4)(A). But even if Congress had enacted this hypothetical version of section 18005, ambiguity would remain. Like section 1117, section 8501 also includes consultation and public-control provisions indistinguishable from those present in section 18005. Id. § 7881(c) (consultation); id. § 7881(d) (public control). Thus, had Congress required CARES Act funds to be apportioned “in the same manner as that specified in § 8501,” questions would remain about which provisions of section 8501 Congress meant to incorporate—since incorporating all of section 8501’s provisions would create the very same superfluity whose existence illustrates the ambiguity that the Department intended the rule to resolve.
Indeed, if the statute were clear, one would expect that states and localities distributing CARES Act funds would be in agreement on the proper interpretation of section 18005. Yet plaintiffs in separate actions challenging the rule have advanced diverging interpretations of the statute. For example, in an action pending in the Northern District of California, Michigan and other states argue that section 18005 incorporates section 1117 in its entirety—including “Section 1117’s eligibility requirements providing that only at-risk private-school students are entitled to services.” Plts. Mot. for Prelim. Inj., Mich. v. DeVos, No. 3:20-cv-04478-JD, ECF 34 at 7 (N.D. Cal.) (citing 20 U.S.C. § 6320(a)). By contrast, in the Western District of Washington, Washington State argues that “[b]ecause the CARES Act refers to the methodology and procedures of Section 1117, the non-methodological and non-procedural aspects of Section 1117 are not necessarily important here. The formula is what matters.” Reply in Support of Mot. for Prelim. Inj., Wash. v. DeVos, No. 2:20-cv-01119-BJR, ECF 51 at 3 (W.D. Wash.). That plaintiffs cannot agree on how to read section 18005 further confirms the provision’s ambiguity.
Plaintiffs next assert (Mot. 20–21) that the agency’s decision must be set aside because it “conflicts with the Department’s own prior guidance concerning section 1117 of the ESEA” and thus reverses prior guidance without adequate explanation. But the agency has not reversed
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course or rescinded prior policy. The Department’s general interpretation of section 1117’s equitable-services mandate, issued in October 2019, remains unaltered—as does its interpretation of the provision of equitable services using Title I funds. In contrast, the challenged rule relates to equitable services provided using CARES Act funds—a question the Department could not possibly have had any position or policy on previously. As the rule explains, the Department’s interpretation rests on the fact that CARES Act funds can be used more broadly than Title I-A funds, and that the national emergency prompting its passage “has harmed all our Nation’s students by disrupting their education.” 85 Fed. Reg. at 39,479. To the extent Plaintiffs assert that Congress intended CARES Act funds to benefit a district’s most vulnerable students, the district has the ability under the rule to focus its funds on its high-poverty Title I-A schools.
Plaintiffs also contend (Mot. 28–29) that the Department lacked good cause to issue the rule as an interim final rule. This argument is belied by Plaintiffs’ request for the extraordinary remedy of an injunction (or insistence that this Court should expedite summary judgment briefing), which they claim is necessitated by the same exigent circumstances underlying the Department’s decision. Plaintiffs cannot meaningfully dispute that the coronavirus pandemic constitutes an emergency of unprecedented scale; indeed, the harms to schools engendered by that emergency form the basis of their motion. And as the Department recognized, “in light of the current national emergency[’s] . . . disruption on education in both public and non-public schools, and the immediate need for certainty,” good cause existed to waive ordinary rulemaking procedures. 85 Fed. Reg. at 39,483. Plaintiffs’ counter to the Department’s rationale—that “Congress provided LEAs with clear instructions on how to allocate funding for equitable services,” and thus no rulemaking was necessary (Mot. 30) simply begs the ultimate question in this case and thus provides no additional reason that notice-and-comment rulemaking should have been undertaken before issuance of the rule.
C. Plaintiffs’ constitutional claims should fail for the same reasons that their APA claims should be rejected. Each such claim rests on the premise that the Department of Education lacked statutory authority to issue the challenged rule. But as the Supreme Court has held, “in cases in which the [government] concedes, either implicitly or explicitly, that the only source of
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[its] authority is statutory, no constitutional question whatever is raised,” “only issues of statutory interpretation.” Dalton v. Specter, 511 U.S. 462, 474 n.6 (1994). Plaintiffs’ contrary view would have the sweeping implication that every challenge to an agency regulation could be recharacterized as a “constitutional” claim, given the general absence of any background constitutional authority for agencies to take action in the absence of congressional authorization. Because the challenged rule is a permissible construction of section 18005, there is no freestanding constitutional impediment to the Department’s actions.

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

Dated: August 24, 2020

Respectfully submitted,

ETHAN P. DAVIS Acting Assistant Attorney General

DAVID M. MORRELL Deputy Assistant Attorney General

JENNIFER D. RICKETTS Director

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

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 Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), et al.,
Plaintiffs,
vs.
ELISABETH “BETSY” D. DEVOS, in her official capacity as the United States Secretary of Education, and the UNITED STATES DEPARTMENT OF EDUCATION,
Defendants.

Case No. 1:20-cv-01996 (DLF)

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 2 of 23
TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................2 I. SUMMARY JUDGMENT STANDARD............................................................................2 II. THE RULE IS FACIALLY UNLAWFUL UNDER THE APA .........................................3
A. The Secretary Lacked Any Delegated Authority to Promulgate the Rule and Therefore It Must Be Vacated...........................................................................3
B. Section 18005 of the CARES Act Is Not Ambiguous as to the Allocation Formula for Equitable-Services Funding.................................................................5 1. “Provide equitable services in the same manner as” clearly and unambiguously includes the manner of calculating the proportion of funds for equitable services under section 1117......................................6 2. None of the irrelevant statutory provisions Defendants cite render Section 18005’s allocation formula ambiguous. .........................................8 3. There is no inconsistency in the characterization of section 18005 by plaintiffs in the various lawsuits challenging the Rule. ........................10
C. The Rule Is Not Entitled To Deference, Because It Is An Unreasonable Interpretation Of The Statute .................................................................................11
III. DEFENDANTS DO NOT MEANINGFULLY CONTEST PLAINTIFFS’ CONSTITUTIONAL CLAIMS.........................................................................................13
IV. DEFENDANTS DO NOT DISPUTE THAT NATIONWIDE VACATUR IS THE APPROPRIATE REMEDY IF THE RULE IS FACIALLY UNLAWFUL .....................15
CONCLUSION ..............................................................................................................................16
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TABLE OF AUTHORITIES
Page
FEDERAL CASES
Adamski v. McHugh, 304 F. Supp. 3d 227 (D.D.C. 2015) ...................................................................................14, 15
Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001) .................................................................................................2
Am. Petroleum Inst. v. EPA, 52 F.3d 1113 (D.C. Cir. 1995) ...................................................................................................4
Ass’n of Private Sector Colls. and Univs. v. Duncan, 870 F. Supp. 2d 133 (D.D.C. 2012) ...........................................................................................4
Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................14
City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019) .....................................................................................................4
City of Philadelphia v. Att’y Gen. of U.S., 916 F.3d 276 (3d Cir. 2019).......................................................................................................4
Dalton v. Specter, 511 U.S. 462 (1994)...........................................................................................................13, 14
Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) .................................................................................................15
District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1 (D.D.C. 2020) .............................................................................................13
Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989) .................................................................................................15
Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256 (1985)...................................................................................................................7
Michigan v. DeVos, No. 3:20-cv-04478, ECF No. 82 (N.D. Cal. Aug. 26, 2020) .....................................................5
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)...................................................................................................................6
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TABLE OF AUTHORITIES (Continued)
Page
Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998) ...............................................................................................15
Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 105 F.3d 691 (D.C. Cir. 1997) ...................................................................................................4
Oakley v. Devos, No.20-cv-03215-YGR, 2020 WL 3268661 (N.D. Cal. June 17, 2020) .....................................5
Partlo v. Johanns, No. CIV.A.04-1462 CKK, 2006 WL 1663380, at *13 (D.D.C. June 11, 2006), aff’d, 224 F. App’x 7 (D.C. Cir. 2007) ......................................................................................7
Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.D.C. 2006) .............................................................................................2
Sierra Club v. Trump, 963 F.3d 874 (9th Cir. 2020) ...................................................................................................14
South Dakota v. Dole, 483 U.S. 203 (1987).................................................................................................................14
Tex. Alliance for Home Care Servs. v. Sebelius, 681 F.3d 402 (D.C. Cir. 2012) .................................................................................................14
Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014).............................................................................................................4, 13
Washington v. DeVos, No. 2:20-cv-1119-BJR, 2020 WL 4922256 (W.D. Wash. Aug. 21, 2020) ................. 3, passim
Yates v. United States, 574 U.S. 528 (2015)...................................................................................................................9
FEDERAL STATUTES
5 U.S.C. ch. 5, subch. I § 500 et seq. Administrative Procedure Act....................................................................................................2
20 U.S.C. § 1221e-3.........................................................................................................................3
20 U.S.C. § 3474..............................................................................................................................3
Pub. L. No. 116-136, 134 Stat. 281 (2020) (“CARES Act”), Coronavirus Aid, Relief, and Economic Security Act ..................... 1, passim iii

Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 5 of 23 TABLE OF AUTHORITIES (Continued) Page
FEDERAL RULES Fed. R. Civ. P. 56(a) ........................................................................................................................2 FEDERAL REGULATIONS 85 Fed. Reg. 39,479 (July 1, 2020)..............................................................................................1, 8 OTHER AUTHORITIES Michigan v. DeVos,
No. 3:20-cv-04478-JD, ECF No. 35 (N.D. Cal. July 20, 2020) ..............................................10 Washington v. DeVos,
No. 2:20-cv-01119-BJR, ECF No. 51 (W.D. Wash. Aug. 9, 2020) ........................................10 Webster’s Third New International Dictionary (Unabridged) 1827................................................6
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INTRODUCTION Defendants’ Opposition concedes that the CARES Act does not expressly give the Department rulemaking authority. Instead, Defendants claim that the ambiguity of the statute provides the basis for promulgating the Rule governing allocation of funds for equitable services under the Department’s general rulemaking powers. There are two fatal problems with Defendants’ position. First, the Department’s general rulemaking authority is not a sufficient basis, under well-established law, to promulgate rules governing “formula grants” in the CARES Act that must be distributed according to specific statutory guidelines. Second, the CARES Act is not at all ambiguous as to the allocation of the funds for equitable services. The statute’s direction that local education agencies “shall provide equitable services in the same manner as provided under section 1117 of the ESEA of 1965 to students and teachers in non-public schools” means what it says: funds shall be allocated for the benefit of private-school students based upon the number of low-income students in private schools—just as public schools have done for decades under section 1117 of the ESEA. Without rulemaking authority or statutory ambiguity, the Rule must be vacated. Defendants claim that “a ‘mechanistic application’ of § 1117 to § 18005’s equitableservices requirement would ‘disadvantage’ private-school students,” ECF No. 46 (“Opp.”) at 6 (quoting 85 Fed. Reg. at 39,479). Defendants, however, do not have discretion to make such a policy judgment that requires rewriting the statute. When faced with the unambiguous text of a statute, a “mechanistic application” is all that an agency is permitted to do. Likewise, Defendants’ assertion that they “reasonably concluded that ‘in the same manner’ does not incorporate section 1117’s proportional-apportionment provisions,” Opp. at 9, is wrong— Defendants cannot rewrite the parts of the incorporated statute with which they do not agree. In short, Defendants cannot substitute their policy preference for a clear statutory mandate by
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Congress. The Rule is ultra vires and as such violates the APA as well as the Spending Clause and the constitutional separation of powers. The proper remedy is vacatur, which has nationwide effect. Prompt and permanent vacatur is particularly important here because school districts need immediate clarity as they start this challenging year and two other courts have issued preliminary injunctions enjoining the Rule for only some districts and states, resulting in a patchwork of mandates.
ARGUMENT I. SUMMARY JUDGMENT STANDARD
This Court grants summary judgment if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In an APA case, summary judgment “serves as the mechanism for deciding, as a matter of law, whether the agency action is . . . consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006). Thus “the entire case . . . is a question of law,” and the district court “sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (quotation marks and footnote omitted).
Under the APA, the Court “shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. The Court must “hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory . . . authority.” 5 U.S.C. § 706(2).
Because the Department has not yet produced the administrative record, only Plaintiffs’ constitutional and APA claims concerning the Department’s constitutional and statutory authority to issue the Rule—Counts One through Four of the First Amended Complaint, see ECF No. 35 at 49–54—are before the Court on this motion for partial summary judgment.
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II. THE RULE IS FACIALLY UNLAWFUL UNDER THE APA A. The Secretary Lacked Any Delegated Authority to Promulgate the Rule and Therefore It Must Be Vacated It is undisputed that the CARES Act does not expressly delegate specific rulemaking
authority to the Secretary to promulgate the Rule. See Opp. at 10 & n.4 (acknowledging that the Department engaged in rulemaking without Congress “explicitly referencing its authority”); see also Washington v. DeVos, No. 2:20-cv-1119-BJR, 2020 WL 4922256, at *6 (W.D. Wash. Aug. 21, 2020) (“The Department does not, and indeed cannot, argue that Congress explicitly delegated it rulemaking authority over the CARES Act, because such authority is simply absent from its text.”).
The general rulemaking statutes upon which Defendants rely, 20 U.S.C. § 1221e-3 and § 3474, are of no help to Defendants. Section 3474 authorizes the Secretary to prescribe rules and regulations only to the extent “necessary or appropriate to administer and manage the functions of the Secretary or the Department.” 20 U.S.C. § 3474. And section 1221e-3 confers general rulemaking authority on the Secretary only to the extent necessary “to carry out functions otherwise vested in the Secretary by law or by delegation of authority pursuant to law, and subject to limitations as may be otherwise imposed by law.” 20 U.S.C. § 1221e-3.
Here, the Secretary has no authority under the CARES Act to “administer” any “function” with respect to the GEER and ESSER funds. See 20 U.S.C. § 1221e-3. As Plaintiffs set out in their Motion, ECF No. 36-1 (“Mot.”) at 16–17, sections 18002 and 18003 of the CARES Act, which govern the GEER and ESSER Funds, direct the Secretary to do nothing more than distribute the majority of the GEER and ESSER funds to either the Governor of each state, or to each State Educational Agency, in accordance with prescribed formulas. CARES Act, Pub. L. No. 116-136, §§ 18002(b) & 18003(b), 134 Stat. 281, 565 (2020) (to be codified as 20 U.S.C. § 3401). Once GEER and ESSER funds are distributed, they are not part of a program
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“administered” by the Department. Defendants do nothing to refute these arguments; they simply cite the Secretary’s general rulemaking authority without further explanation. See Opp. at 10.
Defendants’ invocation of the Secretary’s general rulemaking authority is particularly inapposite where, as here, the Rule imposes conditions on the use of mandatory federal grants to be distributed according to specific statutory guidelines, often referred to as “formula grants.” Courts have expressed serious skepticism when an agency attempts to impose special conditions on mandatory federal grants absent express authority to do so—and one Circuit has held such rulemaking is barred—because allowing an agency to impose additional conditions “would be antithetical to the concept of a formula grant.” City of Los Angeles v. Barr, 941 F.3d 931, 942 (9th Cir. 2019) (holding that agencies have no rulemaking authority over formula grants); see also City of Philadelphia v. Att’y Gen. of U.S., 916 F.3d 276, 288 (3d Cir. 2019) (concluding that Congress would not hide “such a broad power” to impact mandatory federal grants “in a statute outlining ministerial duties”). Courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014) (internal quotation marks and citation omitted).
Further, an agency’s “general rulemaking provisions” do not permit it “to trump Congress’s specific statutory directive.” Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 105 F.3d 691, 694 (D.C. Cir. 1997); see also Ass’n of Private Sector Colls. and Univs. v. Duncan, 870 F. Supp. 2d 133, 155 (D.D.C. 2012) (vacating portion of Department of Education rule, despite general rulemaking authority, where rule was “not in accordance with” substantive statute). An agency “cannot rely on its general authority to make rules necessary to carry out its functions when a specific statutory directive defines the relevant functions of [that agency] in a particular area.” Am. Petroleum Inst. v. EPA, 52 F.3d 1113, 1119 (D.C. Cir. 1995).
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In accordance with these principles, two courts have already preliminarily found that the Rule is unlawful because the Secretary lacked rulemaking authority to issue the Rule. Washington, 2020 WL 4922256, at *6 (“[N]othing in either the text or construction of Section 18005 of the CARES Act evidences an intent to import general rulemaking authority.”); Michigan v. DeVos, No. 3:20-cv-04478, ECF No. 82 at 12 (N.D. Cal. Aug. 26, 2020) (“The Department went well beyond its statutory authority by trying to replace the share formula mandated by Congress in Section 18005(a) with one of its own choosing.”); see also Oakley v. Devos, No.20-cv-03215-YGR, 2020 WL 3268661, at *9 (N.D. Cal. June 17, 2020) (noting that “Congress has been explicit when it intended to provide the Secretary with authority to establish eligibility criteria or impose conditions” on the CARES Act funds).
For these reasons, the Department’s general rulemaking authority does not allow it to go beyond the limited functions it is authorized to perform under the CARES Act. Because the Secretary lacked any authority to promulgate the Rule, the Rule is void.
B. Section 18005 of the CARES Act Is Not Ambiguous as to the Allocation Formula for Equitable-Services Funding
Defendants’ sole argument in defense of the Rule is that section 18005 is ambiguous, requiring clarification in the form of a regulation. Defendants contend that the statute is ambiguous for two reasons: First, they claim there is tension between section 1117’s focus on low-income students and the CARES Act’s goal of helping all students in all schools. See Opp. at 8–9. Second, they claim that because section 18005 includes other provisions similar to the provisions of section 1117, “[i]f the CARES Act’s use of the phrase ‘in the same manner’ incorporated every jot and tittle of section 1117, both the consultation and the public-control provisions of section 18005 would be superfluous.” Opp. at 9. These invented “ambiguities” do not give Defendants a basis for issuing a Rule at all, and certainly not a Rule that fails to address the claimed ambiguities but contradicts the plain dictates of the statute.
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1. “Provide equitable services in the same manner as” clearly and unambiguously includes the manner of calculating the proportion of funds for equitable services under section 1117.
Defendants admit—as they must—that the plain language of the statute requires LEAs “to provide equitable services to private school students ‘in the same manner’ as specified in section 1117 of the ESEA.” Opp. at 8. Defendants then inexplicably contend that the “Department reasonably concluded that ‘in the same manner’ does not incorporate section 1117’s proportional-apportionment provisions.” Opp. at 9. To fill this self-created “ambiguous” hole in the statute, Defendants promulgated a Rule that either requires a different apportionment formula altogether, or imposes spending restrictions on LEAs that choose to follow section 1117’s apportionment formula. But the Department cannot create an ambiguity by reading out portions of the incorporated statute it does not like and filling the resulting void with its own policy preferences.
There is simply no ambiguity here permitting any type of rulemaking by the Department. First, section 18005 instructs that LEAs “shall provide equitable services in the same manner as provided under section 1117.” “Provide” means “to supply what is needed for sustenance or support,” “to fit out or fit up,” or “to supply for use.” Webster’s Third New International Dictionary (Unabridged) 1827. In other words, “provide” means to supply funds in the same manner. Accord Michigan, No. 3:20-cv-4478-JD, ECF No. 82 at 7 (“The words Congress used in Section 18005(a) of the CARES Act are familiar and uncomplicated, to say the least.”).
Second, section 18005 instructs that LEAs “shall provide equitable services in the same manner as provided under section 1117.” As Plaintiffs explained in their Motion, see Mot. at 19, “in the same manner as” means “to use the same methodology and procedures,” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 545–46 (2012) (“[The Affordable Care Act’s] command that the penalty be ‘assessed and collected in the same manner’ as taxes is best read as referring to those chapters [of the Internal Revenue Code] and giving the [Treasury] Secretary the same
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authority and guidance with respect to the penalty.”); see also Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 271 (1985) (reading a state statute requiring that federal funds be distributed “in the same manner as taxes are distributed” to mean that localities allocated tax revenues and federal aid in proportionally identical ways); Partlo v. Johanns, No. CIV.A.041462 CKK, 2006 WL 1663380, at *13 (D.D.C. June 11, 2006) (holding that statute requiring Secretary to “‘make assistance available under this section in the same manner as provided under’ the 2000 [version of the statute]” “directed conformity” with the prior statute), aff’d, 224 F. App’x 7 (D.C. Cir. 2007).
Defendants do not distinguish this precedent in any way. See generally Opp. at 8–11. To use the same “methodology and procedures” to calculate equitable-services funding as under section 1117 requires allocation of funds based upon the number of low-income private-school students, and not the total number of private-school students.
Third, section 18005 instructs that LEAs “shall provide equitable services in the same manner as provided under section 1117.” “[H]istorically speaking, Congress’s reference to Section 1117 of the ESEA cannot be construed as casual or incidental; it is an explicit citation to a formula with which LEAs are well acquainted.” Washington, 2020 WL 4922256, at *8. Thus, there is no ambiguity in the cross-reference to the provision of equitable services under section 1117, which refers “to a simple, familiar, and time-tested formula” well-known to LEAs and to the Department. Id.; see Mot. at 8 (detailing the Department’s decades-old guidance interpreting section 1117 to require the calculation of equitable-services funding based on the number of lowincome students in private schools).
For these reasons, the direction for allocation of funds for equitable services under the CARES Act is clear and unambiguous.
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2. None of the irrelevant statutory provisions Defendants cite render Section 18005’s allocation formula ambiguous.
Defendants have no answers to the above arguments. Instead, they offer two theories outside the plain text of the provision at issue for why that provision is ambiguous, neither of which creates a basis for promulgating the Rule.
First, Defendants argue that Section 18005 is ambiguous because of the “disparate purposes of the CARES Act (to provide emergency relief to all students and schools) and Title IA (to provide services for low-achieving students).” Opp. at 9; see also id. at 13 (“The Department’s interpretation rests on the fact that CARES Act funds can be used more broadly than Title I-A funds, and that the national emergency prompting passage of the CARES Act ‘has harmed all our Nation’s students by disrupting their education.’” (citing 85 Fed. Reg. at 39,479)).
Even if the “purpose” of the CARES Act could supersede the plain text, Defendants are wrong in their characterization of that purpose. The Act expressly provides that one of the purposes of the ESSER Fund is to address “the unique needs of low-income children or students.” CARES Act, Pub. L. No. 116-136, § 18003(d)(4), 134 Stat. 281, 566 (to be codified as 20 U.S.C. § 3401) (emphasis added). As one court has already held, “[d]istribution of funds under the poverty-based formula will not result in private schools receiving no [Education Stabilization Fund] funding; only in receiving funding in a smaller proportion than they would under the Department-created formula. This reflects Congress’s stated intent in the CARES Act to distribute education funding to all, but to concentrate on those in direst need.” Washington, 2020 WL 4922256, at *7. The Act’s purpose thus supports Plaintiffs’ reading of section 18005.
Second, Defendants argue that section 18005 is ambiguous because it contains two provisions—one that requires LEAs to consult with private schools and one that requires public schools to maintain control over all CARES Act funds—that are substantively similar to
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provisions of section 1117. See Opp. at 9, 12. Accordingly, Defendants’ argument goes, if section 18005(a)’s reference to section 1117 “incorporated every jot and tittle” of section 1117, section 18005’s consultation and control provisions would be rendered superfluous. See id. at 9.
In fact, the presence of separate consultation and control requirements proves that the allocation mechanism under section 1117 must be incorporated in section 18005(a). Because, as Defendants recognize, section 18005 elsewhere includes consultation and control requirements, section 18005(a) must incorporate section 1117’s allocation formula, or else its reference to “section 1117” would be meaningless. Courts use canons of construction “to resolve ambiguity, not create it.” Yates v. United States, 574 U.S. 528, 564 (2015). Far from being ambiguous, the CARES Act’s allocation, consultation, control, and use provisions make sense: Section 18005(a) directs how the funds are to be allocated (“in the same manner as Section 1117,” in consultation with private schools), section 18005(b) directs how the funds are to be controlled, and sections 18002 and 18003 direct how the funds are to be used.1
In any event, even if one concludes that the CARES Act’s reference to section 1117 also incorporates the consultation and control provisions and thus makes them duplicative of portions of section 18005, this does not provide a basis for the Department to rewrite the allocation provision of section 1117. That section remains, because there is no ambiguity as to how that
1 The same conclusion flows from the CARES Act’s allocation of GEER and ESSER funds to States and State Educational Agencies (“SEAs”). In prescribing how the GEER and ESSER Funds were to be allocated to Governors and SEAs, respectively, Congress specified that those funds should be awarded—either using a specific formula of 60% based on total population and 40% based on the relative number of children as counted under Title I, in the case of GEER, or “in proportion to” the amount of funds the SEA received pursuant to Title I-A in the most recent fiscal year, in the case of ESSER. Congress had to prescribe formulas for allocation of funds to Governors and SEAs because there is no allocation provision concerning those entities in section 1117. By contrast, section 1117 already includes an allocation provision for LEAs, and Congress expressly incorporated that provision into section 18005(a).
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provision of section 1117—and therefore section 18005—is to be implemented.2 Yet the Rule effectively excises that provision by forcing LEAs either to use a different formula, or to use the section 1117 formula but with extra-statutory conditions attached.
3. There is no inconsistency in the characterization of section 18005 by plaintiffs in the various lawsuits challenging the Rule.
In a further effort to manufacture ambiguity in the CARES Act, Defendants argue that “plaintiffs in separate actions challenging the [R]ule have advanced diverging interpretations of the statute.” Opp. at 12. Defendants contend that “in an action pending in the Northern District of California, Michigan and other states argue that section 18005 incorporates section 1117 in its entirety—including ‘Section 1117’s eligibility requirements providing that only at-risk privateschool students are entitled to services.’” Opp. at 12 (quoting Plts. Mot. for Prelim. Inj., Michigan v. DeVos, No. 3:20-cv-04478-JD, ECF No. 35 at 7 (N.D. Cal. July 20, 2020)).3 They claim that the Washington plaintiffs disagree. Id. This point is wrong and also irrelevant.
Defendants’ citation to the Michigan plaintiffs’ brief (Opp. at 12) is to the background section describing Defendants’ April 2020 guidance document. See id. (quoting Michigan v. DeVos, No. 3:20-cv-04478-JD, ECF No. 35 at 7). It is not a statement of the plaintiffs’ position in that case. Nor do the Michigan plaintiffs and the Washington plaintiffs disagree. See Washington v. DeVos, No. 2:20-cv-01119-BJR, ECF No. 51 at 3 (W.D. Wash. Aug. 9, 2020) (“Because the CARES Act refers to the methodology and procedures of Section 1117, the nonmethodological and non-procedural aspects of Section 1117 are not necessarily important here. The formula is what matters.”); Michigan v. DeVos, No. 3:20-cv-04478-JD, ECF No. 35 at 12
3 Defendants cite this portion of the Michigan plaintiffs’ memorandum in support of their motion for preliminary injunctive relief as ECF 34. The correct ECF number is 35.
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(“Congress chose to adopt proportional allocation under Title I-A of the ESEA, and the method and procedure of Section 1117 of the ESEA for equitable services. . . .”).
Moreover, the issue here is whether there was ambiguity regarding the allocation of funds that would necessitate the Rule on allocation. Plaintiffs in all actions challenging the Rule agree that there is absolutely no ambiguity in the CARES Act about the proper allocation of funds for equitable services, which every school district immediately understood when they read the CARES Act based upon decades of implementing section 1117. There is nothing ambiguous about the allocation formula under the statute that necessitated promulgation of the Rule.
C. The Rule Is Not Entitled To Deference, Because It Is An Unreasonable Interpretation Of The Statute
Even if the CARES Act was ambiguous (and it is not), the Rule is an unreasonable interpretation of the statute. Defendants contend that the “Department of Education resolved the tension between the CARES Act and the provisions of section 1117 by reference to Congress’s command that the services provided to private schools be ‘equitable.’” Opp. at 11 (quoting CARES Act, Pub. L. No. 116-136, § 18005(a), 134 Stat. 281, 568 (to be codified as 20 U.S.C. 2401). That is, they decided that the use of the term “equitable” meant the funds should be divided up equally between public- and private-school students. This is simply wrong.
The Department’s reading of the word “equitable” in section 18005 to mean “equal funding” simply deletes the term of art “equitable services” from the statute. This is a decadesold term well-understood by LEAs and the Department. See Mot. at 8. Defendants ignore the well-understood meaning of the phrase. There is also no basis for concluding that Congress intended the allocation of funds to be “equal” between public- and private-school students by referring to “equitable services.” As the court in the Washington case reasoned, “the term ‘equitable’ in Section 18005 modifies ‘services,’ and does not refer, as the Department would have it, to how funds should be apportioned. Thus, the context and plain meaning of this term
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show that Congress meant” the funds should be apportioned exactly as “equitable services” funds have been apportioned for decades. Washington, 2020 WL 4922256, at *17.
Nor is there any inequity here that needs to be remedied by the Department. Private schools were able to obtain funding under the Payroll Protection Program (“PPP”)—funds unavailable to the overwhelming majority of public schools. See generally CARES Act, Pub. L. No. 116-136, § 1102, 134 Stat. 281, 286–94. Allowing private schools to double-dip at the expense of public-school students would create an inequity, not eliminate one. Regardless, Defendants are not permitted to impose their policy judgment about equity over the unambiguous dictates of the statute.
The Rule is also unreasonable because Option Two imposes additional, entirely extrastatutory restrictions—a prohibition on the use of funds for any non-Title I schools, and a “supplement, not supplant” requirement on schools’ use of funds—which are nowhere to be found in the provisions of the CARES Act governing elementary and secondary education. See Mot. at 21–22. Tellingly, Congress did impose supplement-not-supplant requirements on the use of other types of CARES Act funds. See, e.g., CARES Act, Pub. L. No. 116-136, § 3404(a)(3), 134 Stat. 281, 392 (to be codified as 42 U.S.C. § 296b) (Nursing Workforce Development Program) (“Such Federal funds are intended to supplement, not supplant, existing non-Federal expenditures for such activities.”). But Congress did not impose such requirements on elementary- and secondary-education funds. Defendants offer no argument that the “supplement, not supplant” restriction is lawful. To the contrary, they relegate mention of this prominent provision of the Rule to a footnote that comes close to conceding it is unlawful, arguing only that if the Court finds that condition is unauthorized under the statute, it should sever it, rather than vacating the whole Rule. See Opp. at 11 n.5.
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Likewise, the choice itself has no basis in the statute. Defendants concede that the Department introduced the “choice” “in response to criticism from certain States that its guidance was too inflexible.” Opp. at 6. But the Department cannot use a problem it created to justify its extra-statutory Rule. A regulation that does not address the ambiguity it purports to interpret and is contrary to the plain language of the statute would not be reasonable, even if the Department had grounds for promulgating the rule. See Util. Air Regulatory Grp., 573 U.S. at 328 (“[T]he need to rewrite clear provisions of the statute should have alerted EPA that it had taken a wrong interpretive turn. Agencies are not free to adopt . . . unreasonable interpretations of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness.” (internal quotation marks and citation omitted)); District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 24–25 (D.D.C. 2020) (holding plaintiffs were likely to succeed on merits of claim that rule was an unreasonable construction of ambiguous statute where “neither of the Final Rule’s two core standards answers the question that Congress asked” (internal quotation marks omitted)).
Because the Rule is in excess of the Secretary’s statutory authority and not in accordance with law, the Court can and should vacate the Rule on these grounds. III. DEFENDANTS DO NOT MEANINGFULLY CONTEST PLAINTIFFS’
CONSTITUTIONAL CLAIMS In response to Plaintiffs’ arguments that the Rule is ultra vires in violation of the constitutional separation of powers and violates the Spending Clause, Defendants argue only that “there is no freestanding constitutional impediment to the Department’s actions,” because the only source of Defendants’ authority is statutory. Opp. at 14. Citing Dalton v. Specter, 511 U.S. 462, 474 n.6 (1994), Defendants suggest that a plaintiff can never bring both an APA challenge and a constitutional challenge to an agency regulation. See Opp. at 14.
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One court of appeals has already rejected the precise argument Defendants make here. In Sierra Club v. Trump, 963 F.3d 874, 889–90 (9th Cir. 2020), the court rejected the government’s argument that Dalton “means that when there is a claim that an Executive Branch official acted in excess of his statutory authority, there is no constitutional violation.” As the court explained, “Dalton does not hold that every action in excess of statutory authority is not a constitutional violation. Rather, Dalton suggests that some actions in excess of statutory authority may be constitutional violations, while others may not. Specifically, Dalton suggests that a constitutional violation may occur when an officer violates an express prohibition of the Constitution.” Id. The court went on to hold that the Appropriations Clause is just such an express prohibition.
The same reasoning applies to the Spending Clause. Like the Appropriations Clause, the Spending Clause “contains such a constitutional prohibition,” id.—namely, prohibiting conditions on federal funds unless those conditions are “unambiguous[]” and related “to the federal interest in particular . . . programs,” South Dakota v. Dole, 483 U.S. 203, 207 (1987) (citations omitted). As with violations of the Appropriations Clause, then, violations of the Spending Clause can give rise to an independent cause of action. See Sierra Club, 963 F.3d at 890.
Likewise, courts in this Circuit recognize two types of ultra vires claims—one that the agency action is “in excess of statutory authority” or “not in accordance with law” under the APA, and one that is a “non-statutory, non-APA ultra vires claim.” See Adamski v. McHugh, 304 F. Supp. 3d 227, 236–37 (D.D.C. 2015) (citing Tex. Alliance for Home Care Servs. v. Sebelius, 681 F.3d 402, 408 (D.C. Cir. 2012)); Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996)). The latter “derives from the contention that the agency has acted without the authority to do so, and it is based on the inherent power of the federal courts ‘to
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reestablish the limits on [executive] authority’ through judicial review.” Id. at 237 (quoting Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988)).
Accordingly, Defendants’ argument, see Opp. at 13–14, that these claims are not freestanding lacks merit. Although the Court need not reach these claims if it concludes that the Rule violates the APA, they provide an alternative, independent ground for vacating the Rule— and one that goes uncontested on the merits by Defendants. IV. DEFENDANTS DO NOT DISPUTE THAT NATIONWIDE VACATUR IS THE
APPROPRIATE REMEDY IF THE RULE IS FACIALLY UNLAWFUL Defendants do not dispute that vacatur, which has nationwide effect, is the appropriate remedy should the Court conclude that the Rule is facially unlawful.4 In this Circuit, “‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.’” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (alteration in original) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)). Nationwide vacatur is particularly important here because school districts all over the country are looking for clear direction on the allocation of these funds at a critically stressful time. Further, two courts’ issuance of preliminary injunctions enjoining the Rule has resulted in various rules for various districts. Washington, 2020 WL 4922256, at *11; Michigan, No. 3:20-cv-04478, ECF No. 82 at 15. Prompt resolution of this issue permanently and on a nationwide basis is essential.
4 Indeed, by arguing in a footnote that the Court should sever the Rule’s “supplement, not supplant” requirement, instead of vacate the Rule, if the Court concludes that portion of it is unlawful, Opp. at 11 n.5, Defendants implicitly concede that if the Rule is unlawful, vacatur is the remedy.
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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 21 of 23 CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court hold that the Rule is unlawful on its face, vacate the Rule in its entirety, and remand to the Department.
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Dated: August 28, 2020

Respectfully submitted,
MUNGER, TOLLES & OLSON LLP TAMERLIN J. GODLEY (Admitted Pro Hac Vice) JONATHAN KRAVIS (D.C. Bar No. 973780) ADELE M. EL-KHOURI (D.C. Bar No. 1025090) JESSICA REICH BARIL (Admitted Pro Hac Vice) DAVID P. THORESON (Admitted Pro Hac Vice)

By:

/s/ Adele M. El-Khouri

ADELE M. EL-KHOURI

TAMERLIN J. GODLEY Tamerlin.Godley@mto.com JESSICA REICH BARIL Jessica.Baril@mto.com DAVID P. THORESON David.Thoreson@mto.com MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, Fiftieth Floor Los Angeles, California, 90017 Telephone: (213) 683-9100 Facsimile: (213) 687-3702

JONATHAN KRAVIS Jonathan.Kravis@mto.com ADELE M. EL-KHOURI Adele.El-Khouri@mto.com MUNGER, TOLLES & OLSON LLP 1117 F. Street, N.W., Seventh Floor Washington, D.C. 20004 Telephone: (202) 220-1100 Facsimile: (202) 220-2300

Counsel for All Plaintiffs Additional Co-Counsel for All Plaintiffs Listed on Next Page

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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 23 of 23

Additional Co-Counsel for All Plaintiffs

BACARDI JACKSON bacardi.jackson@splcenter.org (Admitted Pro Hac Vice) CHRISTINE BISCHOFF christine.bischoff@splcenter.org (Admitted Pro Hac Vice) KATHERINE DUNN katherine.dunn@splcenter.org (Admitted Pro Hac Vice) LINDSEY RUBINSTEIN lindsey.rubinstein@splcenter.org (Admitted Pro Hac Vice) SAM BOYD sam.boyd@splcenter.org (Admitted Pro Hac Vice) MICHAEL TAFELSKI michael.tafelski@splcenter.org (Admitted Pro Hac Vice)

WENDY LECKER WLecker@edlawcenter.org (Admitted Pro Hac Vice) JESSICA LEVIN JLevin@edlawcenter.org (Admitted Pro Hac Vice)
EDUCATION LAW CENTER 60 Park Place, Suite 300 Newark, New Jersey 07102 Telephone: (973) 624-1815 Facsimile: (973) 624-7339

SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 Telephone: (334) 315-0179 Facsimile: (334) 956-8481

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 Case 1:20-cv-01996-DLF Document 77 Filed 09/04/20 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, et al.,
Defendants.

No. 20-cv-1996 (DLF)

ORDER For the reasons stated in the accompanying Memorandum Opinion, it is ORDERED that the plaintiffs’ Motion for Preliminary Injunction, Or in the Alternative, Summary Judgment, Dkt. 36, which the Court considered as an expedited motion for summary judgment pursuant to Federal Rule of Civil Procedure 65(a)(2), is GRANTED as to Counts 3 and 4. It is further ORDERED that the Department of Education’s Interim Final Rule, 85 Fed. Reg. 39,479, is VACATED. Accordingly, it is further ORDERED that Counts 1, 2, 5, 6, and 7 are DENIED AS MOOT. The Clerk of Court is directed to close this case.

September 4, 2020

________________________ DABNEY L. FRIEDRICH United States District Judge

 
 Case 1:20-cv-01996-DLF Document 78 Filed 09/04/20 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, et al.,
Defendants.

No. 20-cv-1996 (DLF)

MEMORANDUM OPINION In March of 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Pub. L. No. 116-136, 134 Stat. 281 (2020) (to be codified as 20 U.S.C. § 3401 note). As part of its comprehensive relief effort, the CARES Act appropriated billions of dollars in funding for elementary and secondary schools across the nation. See CARES Act § 18001. A few months later, the Department of Education interpreted those funding provisions in an Interim Final Rule. 85 Fed. Reg. 39,479 (July 1, 2020). This suit soon followed. Before the Court is the plaintiffs’ motion for preliminary injunction or, in the alternative, summary judgment, Dkt. 36, which the Court considers as an expedited motion for summary judgment pursuant to Federal Rule of Civil Procedure 65(a)(2). For the reasons that follow, the Court will grant the motion. I. BACKGROUND A. Statutory Framework In response to the ongoing global pandemic of 2020, Congress passed a comprehensive relief effort known as the CARES Act. Pub. L. No. 116-136, 134 Stat. 281 (2020). The CARES

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Act appropriated billions of dollars to aid schools through the challenges of the pandemic. See CARES Act § 18001. The Act did so through three sub-funds, two of which are relevant here. The first, the Governors’ Emergency Education Relief Fund (GEER), provides governors with discretion to distribute funding to the Local Education Agencies (LEAs) that need it most. Id. § 18002. The second, the Elementary and Secondary School Emergency Relief Fund (ESSER), directs the Department of Education to disburse funds to each state. Each state then disburses funds to its LEAs, which pass on funding to schools pursuant to a specific formula. Id. § 18003.
Unlike the GEER fund (and other CARES Act sub-funds), the ESSER fund leaves no room for discretion as to which LEAs or schools receive funding. Rather, it dictates that the funds “shall be allocated by the Secretary to each State in the same proportion as each State received under part A of title I of the [Elementary and Secondary Education Act (ESEA)] of 1965 in the most recent fiscal year.” Id. (emphasis added).
The Act also dictates how certain private schools may receive GEER and ESSER funding. It states that any “local educational agency receiving funds . . . shall provide equitable services in the same manner as provided under § 1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in consultation with representatives of non-public schools.” Id. § 18005. Thus, the Act incorporates by reference a different statute, which in turn describes, among other things, the formula for how funds should be divided between public and private schools. See 20 U.S.C. § 6320(a)(4)(A)(i) (§ 1117 of the ESEA). The referenced provision states: “Expenditures for educational services and other benefits to eligible private school children shall be equal to the proportion of funds allocated to participating school attendance areas based on the number of children from low-income families who attend private schools.” Id. These provisions are the subject of this litigation.
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B. Regulatory Background In April 2020, the Department of Education issued guidance about CARES Act funding for private schools. Providing Equitable Services to Students and Teachers in Non-Public Schools Under the CARES Act Programs, https://oese.ed.gov/files/2020/06/Providing-EquitableServices-under-the-CARES-Act-Programs-Update-6-25-2020.pdf (Apr. 30, 2020). The Department advised that the GEER and ESSER funds should be used to “serve all non-public school students and teachers without regard to family income, residency, or eligibility based on low achievement.” Id. at 3 (emphasis added). The Department made this position binding in July 2020, when it issued an interim final rule to the same effect. See 85 Fed. Reg. 39,479. In its explanation, the Department reasoned that the relevant text of the CARES Act was ambiguous and that its interpretation was reasonable in light of the text, structure, and purpose of the CARES Act. It ultimately announced: “We have concluded the phrase ‘in the same manner as provided under section 1117’ does not simply mean ‘as provided under section 1117.’” Id. In other words, the Department does not read the CARES Act to require that funds be disbursed pursuant to the formula outlined in § 1117 of the ESEA. Rather, it contends that all private schools are entitled to equal relief funding as public schools, regardless of low-income student population. Id. The Department thus declared that LEAs have “two options” under the Act. See 85 Fed. Reg. 39,482. They can either disburse funds equally between all public schools and all private schools or disburse funds based on low-income student population for both public and private schools. Id. Either way, the Department interprets the CARES Act to forbid differentiation between public and private schools. See id.
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Although the Department engaged in rulemaking to issue its interim final rule, the CARES Act does not vest the Department with rulemaking authority. See generally CARES Act §§ 18001–18005. The Department thus rested its authority to issue the interim final rule on its general rulemaking powers to administer programs under its purview. See 85 Fed. Reg. 39,481.
Further, the Department issued the interim final rule without engaging in notice and comment rulemaking. See 85 Fed. Reg. 39,484 (“Waiver of Proposed Rulemaking”). Instead, the Department opened a post-issuance comment period of thirty days. Id. To justify foregoing the usual rulemaking process, the Department cited the Administrative Procedure Act (APA) exception for good cause, finding that notice and comment was “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. § 553(b)(B), given the exigencies of the global pandemic. Id.
C. Procedural History The plaintiffs—advocacy groups, public school districts, and parents of children who attend public schools—brought this suit on July 22, 2020.1 Dkt. 1. On August 11, 2020, the plaintiffs moved for a preliminary injunction or, in the alternative, summary judgment. Dkt. 36. After providing notice and considering the parties’ respective positions during a status hearing, the Court consolidated the preliminary injunction motion into an expedited motion for summary
1 At the time of this writing, two other federal district courts have granted preliminary injunctions enjoining the Department’s interim final rule. See Michigan v. DeVos, No. 3:20-cv04478, ECF No. 82 at *7 (N.D. Cal. Aug. 26, 2020) (“The Department went well beyond its statutory authority by trying to replace the share formula mandated by Congress in Section 18005(a) with one of its own choosing.”); Washington v. DeVos, No. 2:20-cv-1119, 2020 WL 4922256 (W.D. Wash. Aug. 21, 2020) (holding that “Congress neither explicitly, nor implicitly by ambiguity, granted the Department the authority to promulgate the Interim Final Rule”).
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judgment under Federal Rule of Civil Procedure 65(a)(2).2 See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“[T]he parties should normally receive clear and unambiguous notice [of the court’s intent to consolidate] either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases.”).
In this expedited motion, the plaintiffs assert four claims, each of which presents a pure question of law: first, whether the Department’s actions are ultra vires, in violation of the separation of powers; second, whether the Department’s interim final rule violates the Spending Clause, U.S. Const. art. I, § 8; and third and fourth, whether the Department’s actions violate the APA as an agency action not in accordance with law or in excess of statutory authority, 5 U.S.C. § 706(2)(A), (C). In short, plaintiffs primarily contend that (1) the Department did not have authority to issue the interim final rule, and (2) the interim final rule the Department did issue was contrary to the CARES Act. II. LEGAL STANDARD
Summary judgment is proper if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A fact is “material” if it has the potential to change the substantive outcome of the litigation. See id. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). And a dispute is “genuine” if a reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. See Anderson, 477 U.S. at 248; Holcomb, 433 F.3d at 895.
2 Although the plaintiffs styled their reply brief as a motion for partial summary judgment, see Pl’s Reply, Dkt. 64, the Court treats the motion as a motion for summary judgment because a ruling on the claims addressed in the motion resolves the case.
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In a case reviewing agency action, summary judgment “serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006). “[T]he entire case . . . is a question of law” and the district court “sits as an appellate tribunal.” Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks and footnote omitted). III. ANALYSIS
The APA instructs courts to “hold unlawful and set aside agency action” that is in excess of statutory authority or “not in accordance with law.” 5 U.S.C. § 706(2)(A), (C). Plaintiffs contend that the Department’s interim final rule violates the APA on both grounds and should be “set aside” accordingly. Id.
The Court agrees. The interim final rule is contrary to the unambiguous mandate of the Act. And the Act provides neither express rulemaking authority nor any ambiguity for the agency to clarify. For these reasons, the rule must be “set aside.” Id.
A. The Department’s Interim Final Rule When an agency’s interpretation of a statute is at issue, the two-step Chevron test applies. See Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 815 (D.C. Cir. 2002) (citing Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984)). First, the Court determines whether the statute is ambiguous. See Chevron, 467 U.S. at 843 n.9. “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id. That means that if the text of the statute is clear, the inquiry finds its end. If the statute is ambiguous, on the other hand, the question
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becomes whether the agency’s interpretation is a reasonable one. Holland Mining, 309 F.3d at 815. If the agency’s interpretation is reasonable, it is entitled to deference. Id.
A court’s “task is to construe what Congress has enacted. [A court] begin[s], as always, with the language of the statute.” Duncan v. Walker, 533 U.S. 167, 172 (2001). The statute states: “A local educational agency receiving funds under sections 18002 or 18003 of this title shall provide equitable services in the 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 representatives of non-public schools.” CARES Act § 18005 (emphasis added).
In some statutory interpretation cases, courts must make sense of vague terms, contradictory provisions, or “inartful drafting.” King v. Burwell, 576 U.S. 473, 491 (2015). This is not one of those cases. In describing the funding mechanism for the GEER and ESSER subfunds, Congress spoke with clarity and precision. It used mandatory language, cross-referenced a statutory provision by section number, and left no term up to interpretation.
The statute commands that the LEAs shall distribute funds in the manner specified. CARES Act § 18005. And it specifies that manner by cross-referencing § 1117 of the ESEA by name. Id. “[A] statute that refers to another statute by specific title or section number in effect cuts and pastes the referenced statute as it existed when the referring statute was enacted.” Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 769 (2019). Section 1117 of the ESEA likewise clearly describes a particular formula for providing equitable services to private schools—one based on the number of children from low-income families. See 20 U.S.C. § 6320(a)(4)(A)(i).
Throughout these provisions, Congress used ordinary language in its ordinary sense. “In the same manner” means “to use the same methodology and procedures.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 545–46 (2012) (internal quotation marks omitted). Thus,
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providing equitable services “in the same manner” as § 1117 means to use the same methodology and procedures described in § 1117—the formula that accounts for the number of children from low-income families.
Section 8501, another provision of the ESEA, confirms as much. It provides equal funding to private and public schools without accounting for income. See 20 U.S.C. §§ 7881(a)– (b). Had Congress intended to permit the equal-funding formula the Department adopted in its interim final rule, it could have easily done so by referencing § 8501 in the CARES Act. Instead, however, Congress chose to reference § 1117. In doing so, Congress expressed a clear and unambiguous preference for apportioning funding to private schools based on the number of children from low-income families, even though the Department’s chosen alternative of equal funding was readily available at the time of drafting. In the end, it is difficult to imagine how Congress could have been clearer.
The Department’s arguments to the contrary do not change this straightforward conclusion. The Department first contends that the term “equitable services” is ambiguous and that its interpretation is reasonable. In isolation, it might be true that “equitable” is an ambiguous term. But the Act does not use the term in isolation. It does not say that funds should be disbursed in an equitable manner without further explanation. Quite the opposite, the Act directs a specific formula for providing “equitable services”—the one described in § 1117 of the ESEA.
Nonetheless, the Department found the provision ambiguous and substituted its own “expert judgment” for the kind of policy it deemed equitable. Defs.’ Opp’n at 11, Dkt. 46; see id. (“The Department determined that it is inequitable to apportion expenditures for private schools on the basis of low-income students residing in Title I-A school attendance areas when public school districts may use their share of CARES Act funds to benefit all schools and
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students.”). Although some might agree with the Department’s position as a matter of policy, “[a]n agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 325 (2014).
In its interim final rule, the Department also argued that § 18005(a) as a whole is “facially ambiguous.” 85 Fed. Reg. 39,481. It noted that “Congress did not need to add the words ‘in the same manner’ if it simply intended to incorporate ‘section 1117 of the ESEA of 1965’ by reference in the CARES Act. The unqualified phrase ‘as provided in’ alone would have been sufficient.” Id. But simply because Congress could have been clearer, that alone does not render an unambiguous text ambiguous. In any case, it is not at all obvious how the Department’s proposed revision of “as provided in” is any clearer than Congress’s chosen words of “in the same manner as provided under.” See Nat’l Fed’n of Indep. Bus., 567 U.S. at 545–46 (interpreting “in the same manner” to mean “the same methodology and procedures.”).
The Department also relies on purposive arguments. It posits that the purpose of the CARES Act is “to provide emergency relief to all students and schools,” Opp’n at 9 (emphasis added), while the purpose of Title I-A is “to provide services to low-achieving students.” Id. Because these purposes are “disparate,” the Department reasons, it cannot be the case that Congress intended to incorporate § 1117’s formula for providing equitable services. Id. But even if purposive arguments could overcome the plain text of the statute, which they cannot, the purpose of the CARES Act is not so clear-cut. Indeed, the text of the CARES Act itself calls for “[a]ctivities to address the unique needs of low-income children or students.” CARES Act § 18003(d)(4).
Finally, the Department makes an argument based on the statute’s structure. It argues that “section 1117—and the ESEA more broadly—cannot be imported into the CARES Act
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scheme in ‘mechanistic’ fashion.” Opp’n at 8. The Department’s principal support for this point is that certain provisions in § 1117 of the ESEA (other than the formula for how to provide equitable services) are superfluous with other sections of the CARES Act. See Opp’n at 9 (noting that “two of § 18005’s provisions are substantively identical to two provisions in § 1117”). For example, § 1117 of the ESEA includes a provision requiring public schools to consult with private schools about equitable services, much like the CARES Act. Compare CARES Act § 18005(a), with 20 U.S.C. § 6320(b). So too, both statutes contain language about public schools retaining control over funds. Compare CARES Act § 18005(b), with 20 U.S.C. § 6320(d). The Department reasons that “[i]f the CARES Act’s use of the phrase ‘in the same manner’ incorporated every jot and tittle of section 1117, both the consultation and the publiccontrol provisions of § 18005 would be superfluous.” Opp’n at 9.
While it is true that courts generally avoid giving a statute a meaning that would render parts of the text superfluous, “the rule against giving a portion of text an interpretation which renders it superfluous does not prescribe that a passage which could have been more terse does not mean what it says.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236 (2011). “Redundancy is not a silver bullet. . . . Sometimes the better overall reading of the statute contains some redundancy.” Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019). And the plain reading of § 18005 is that it incorporates the formula described in § 1117 for distributing equitable services by the number of children from low-income families.
B. Plaintiffs’ Remaining Arguments Plaintiffs raise one additional statutory argument. They contend that the Department exceeded its delegated authority by promulgating the interim final rule.
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Although Congress explicitly granted other agencies rulemaking authority in the text of the CARES Act, see, e.g., CARES Act §§ 1114, 3513(f), 12003(c), there is no question that Congress did not vest the Department with express rulemaking authority, see id. §§ 18001– 18005; Opp’n at 10 & n.4. Thus, the Department based its authority on its general rulemaking powers, see 85 Fed. Reg. 39,481: first, the power to make rules “governing the applicable programs administered by[] the department,” 20 U.S.C. § 1221e-3; and second, the power to make rules “as the Secretary determines necessary or appropriate to administer and manage the functions of the Secretary or the Department.” 20 U.S.C. § 3474.
Of course, “[a]n agency’s general rulemaking authority does not mean that the specific rule the agency promulgates is a valid exercise of that authority.” Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134, 139 (D.C. Cir. 2006). “Agencies are . . . bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.” Id. And neither of the general rulemaking authority provisions provides support for the Department’s actions here. As discussed above, § 1117 is not ambiguous. It left no gaps for the agency to fill and thus delegated no implicit authority to the Department.
After all, the GEER and ESSER sub-funds are not “programs” administered by the Department. See 20 U.S.C. § 1221e-3. The sub-funds, in contrast to other CARES Act provisions, provide the Secretary with no discretion as to disbursement or any other programmatic decisionmaking. Rather, they simply direct that the Secretary shall allocate funds in the same proportion and in the same manner as the cross-referenced ESEA statute. CARES Act §§ 18003, 18005. By contrast, other provisions of the CARES Act (which are not at issue in this case) do provide the Secretary with discretion. In the sub-fund for higher education
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(HEER), for example, Congress appropriated 2.5% of the funds for the institutions that the Secretary determines have the greatest unmet needs. See id. § 18004(a)(3). Congress knew how to delegate programmatic authority to the Secretary when it wanted to and chose not to do so here.
Further, the rulemaking was neither “necessary” nor “appropriate” to “manage the functions of the Secretary or the Department,” 20 U.S.C. § 3474. The interim final rule was not “necessary” to accomplish the statute’s unambiguous directive—indeed, it went far beyond that directive by interpreting the statute to require a different formula. The Department “cannot rely on its general authority to make rules necessary to carry out its functions when a specific statutory directive defines the relevant functions . . . in a particular area.” Am. Petrol. Inst. v. EPA, 52 F.3d 1113, 1119 (D.C. Cir. 1995). Because the Act is not ambiguous and did not otherwise delegate rulemaking authority, the Department acted beyond its authority in promulgating the interim final rule.
In addition to the statutory arguments discussed above, Plaintiffs raise two constitutional arguments. They contend that the interim final rule violates the Spending Clause and the separation of powers. See Pl.’s Mem. at 14, 22, Dkt. 36-1. Because plaintiffs’ statutory claims fully resolve this motion, the Court need not reach these constitutional questions. The plaintiffs also bring two additional APA claims in their amended complaint: an arbitrary and capricious challenge and a challenge to the Department’s invocation of the “good cause” exception to notice-and-comment rulemaking. See Am. Compl. ¶¶ 107–23, Dkt. 35. Because these claims do not present pure questions of law and the Department has not yet produced an administrative record, they were not consolidated into the expedited motion for summary judgment. See Pl’s Reply at 2. The remaining APA claims will be moot following this grant of summary judgment.
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See Unofficial Transcript at 4:3–7 (plaintiffs acknowledging that none of their remaining claims would survive if the rule were vacated).
*** In enacting the education funding provisions of the CARES Act, Congress spoke with a clear voice. It declared that relief funding shall be provided to private schools “in the same manner as provided under section 1117.” CARES Act § 18005. Contrary to the Department’s interim final rule, that cannot mean the opposite of what it says. “The authority to issue regulations is not the power to make law, and a regulation contrary to a statute is void.” Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697, 703 (D.C. Cir. 2009). It is long-settled that “[a] regulation which . . . operates to create a rule out of harmony with the statute, is a mere nullity.” Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129, 134 (1936). Thus, the Department’s interim final rule, which conflicts with the unambiguous text of the statute, is void. See 5 U.S.C. § 706(2)(A), (C); see Nat’l Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”).
CONCLUSION For the foregoing reasons, the plaintiffs’ motion for summary judgment is granted. A separate order consistent with this decision accompanies the memorandum opinion.

September 4, 2020

________________________ DABNEY L. FRIEDRICH United States District Judge
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