LANSING — Michigan Attorney General Dana Nessel and other state attorneys general are taking legal action against a rule issued by U.S. Education Secretary Betsy DeVos that they say unfairly diverts federal pandemic relief funds to private schools.

Nessel and California Attorney General Xavier Becerra are leading a coalition of six attorneys general in a court action against the rule issued by DeVos on July 1 on behalf of the U.S. Department of Education that may unfairly limit the ability of public schools to use federal funds provided under the Coronavirus Aid, Relief and Economic Security (CARES) Act.

Nessel, with support from Governor Whitmer, filed as the state of Michigan a complaint for declaratory and injunctive relief in the U.S. District Court for the Northern District of California on Tuesday, over the rule which requires local education agencies (LEAs) to choose between two methods for allocating CARES Act funds rather than distributing the money based on Title One, Part A allocations as required in the act. The two methods are said to contradict CARES Act requirements.

The CARES Act says school districts are to share federal pandemic funds with surrounding private schools according to the Title One of the Elementary and Secondary Education Act. That formula requires districts to allocate money based on the number of low-income students in private schools. DeVos’ rule, however, says coronavirus relief money should be distributed based on the total number of students in any private school that wishes to participate and that equitable services must be provided to all students enrolled, even the affluent ones.

Secretary DeVos has decided to use this public health crisis as another opportunity to advance her personal privatization agenda — Michigan AG Dana Nessel

Nessel’s office said the U.S. Department of Education published an interim final rule on July 1 to “clarify” requirements for allocating CARES Act money to nonpublic schools. Rather than allowing LEAs to follow the CARES Act’s requirements, the department required LEAs to choose from two options, neither of which are specified in the CARES Act: Distribute funds only to Title I-participating public schools and calculate a share for equitable services based on low-income enrollment, but be subject to additional funding limitations; or distribute funds based on total student enrollment in public and private schools, regardless of student need.

Nessel has said DeVos’ interpretation not only contradicts the plain language of the CARES Act but could mean that, in districts with large private school populations, public schools serving low-income students would receive less relief money, which would instead be diverted to their private school peers.

“Secretary DeVos has decided to use this public health crisis as another opportunity to advance her personal privatization agenda,” Nessel said. “Instead of sending relief money to the students most in need as required under the CARES Act, she has abused the Department of Education’s rule-making power to redirect money to private schools.

“At a time when Michigan schools are facing an unprecedented crisis, every single child deserves the chance to succeed. But, yet again, Secretary DeVos has decided to tip the scales in favor of private schools, leaving the state’s public-school students behind. The Secretary of Education’s job is to lift up our public schools, not tear them down. Today I’m leading a coalition of six other states to fight DeVos in court and give a voice to our public schools.”

Attorneys general of the District of Columbia, Maine, New Mexico and Wisconsin have joined Nessel and Becerra in filing the lawsuit.