DENVER -- Denver Public Schools has joined a lawsuit filed by the NAACP seeking to stop Education Secretary Betsy DeVos from forcing public school districts to share more pandemic funding with private schools.
The concern is that it could disproportionately affect low-income students in public schools.
"It is unconscionable for defendants to syphon away the CARES Act desperately needed funds for the benefit of more affluent private schools," said Tamerlin Godley of the law firm Munger, Tolles & Olson LLP.
The NAACP filed the lawsuit in U.S. District Court in Washington, D.C.
"What we're looking at here is a Secretary of Education carrying out her personal agenda, and that's to destroy public education," said NAACP President Derrick Johnson.
Under the CARES Act, Congress appropriated more than $30 billion to help K-12 schools and colleges respond to the pandemic.
It instructed school districts to set aside some of those funds for the benefit of disadvantaged private school students.
The lawsuit alleges that the amount of money to be given to private schools is to be calculated in the same manner as Title 1 funds.
Secretary DeVos wants the money distributed to private schools based on the total number of students in each school.
In a news release published online last month, DeVos said, "There is nothing in the law Congress passed that would allow districts to discriminate against children and teachers based on private school attendance and employment."
The Secretary's goal is to help ensure all students, whose learning was impacted by COVID-19, are served equitably by CARES Act funding, no matter where they attend school.
The plantiffs said that's not what Congress intended.
Denver School Board Member Angela Cobian said, "While we acknowledge that private schools do service some students from low-income households, we strongly disagree that pubic funding, that is designated for our public schools students from low-income households, should go to private schools that are not bound by civil rights and anti-discrimination laws."
During an online news conference, DPS Superintendent Susana Cordova said, "We believe that Congress' intent is to provide funds to serve economically disadvantaged students. We believe that the efforts of U.S. Secretary of Education Besty DeVos and the U.S. Department of Education will do irreparable harm to those children and families, unless stopped."
Johnson called DeVos' decision a "Robin Hood in reverse."
He said this isn't an issue we should be dealing with in the middle of a pandemic.
Godley said, "This will siphon off millions of dollars away from public schools in these critical times."
She added that in order to avoid this result, districts have to agree to only use the CARES Act funds at Title 1 schools, which require 40% of their kids to be Title 1 students, leaving many schools without the benefit of CARES Act funding, and added the Department doesn't have the authority to promulgate this rule.
"It's arbitrary and capricious," Godley said. "It was promulgated without following mandated prescribed rules requirements."
Godley also said, "the rule is as immoral as it is illegal in this moment of crisis where public school districts are called upon to educate their students in unprecedented circumstances."
She said the goal of the lawsuit is to vacate the rule permanently.