Last week U.S. District Court Judge Barbara J. Rothstein temporarily blocked a rule that would provide CARES Act funding to private schools, contrary to the law and intent of Congress. On behalf of 43 state and national groups, the Wisconsin Institute for Law and Liberty filed an amicus brief in this case to represent the important interests of America’s private schools. Washington Policy Center contributed research support and is one of the many organizations signing on in support of this amicus brief. 

Here is the background.  Obviously, COVID-19’s impact on education was not restricted to public schools. More than 5 million students attending 33,000 private schools across the nation were also affected, including 500 private schools serving 80,000 students in Washington state.

In response to the COVID-19 pandemic, Congress passed the CARES Act, which included an Education Stabilization Fund to support schools with the costs of safely reopening and navigating the crisis.

The CARES Act directed the Department of Education to distribute these funds “equitably” between public and private schools, but did not dictate exactly how the funds should be distributed. On June 25, Education Secretary Betsy DeVos issued an interim final rule that gives states and local public-school districts options for how to fairly allocate CARES Act relief to private schools.

Washington state and several other states refused to follow this rule and filed lawsuits against the Department of Education instead.   

The amicus brief filed by the Wisconsin Institute for Law and Liberty shows private schools are an integral part of education across the country. Like public schools, private schools have incurred significant costs, increased risks to health and safety, and unrecoverable economic losses due to the pandemic.

In fact, private schools are harder hit by the pandemic than public schools. Private schools do not receive guaranteed tax funding, like public schools do. For example, Washington public schools received annual government funding of over $17 billion in the 2019-20 school year. Public schools in Washington now receive $16,000 per student on average, more than most private schools. See our July 2019 study, “School funding in the 2019 legislative session; Washington state public schools now receive more money than most private schools.”

As a result, unlike public schools, many private schools have already been forced to close due to the crisis. Since March, 117 private schools around the country have closed, schools that served over 18,000 students. Contrary to stereotype, many private schools serve economically disadvantaged areas and families of modest means. National statistics show that over 20% of private school students come from poor and near-poor families.

For generations, private schools have provided communities with options for their children’s education, emphasizing not only academic success, but overall character and spiritual development.

If school districts in Washington were to follow the CARES Act rule, private schools in Washington would receive roughly $5 million more in CARES Act funding. The $5 million difference, while a mere fraction of funding for Washington’s public schools, could help private schools in Washington stay open.   

Judge Rothstein’s ruling is likely to be appealed to the Ninth Circuit. The judges there may overrule her decision, and allow private schools to receive CARES Act funding as intended by Congress. Ninth Circuit judges may recognize this lawsuit is an effort by public education special interests to hurt private schools. To these special interests, using the pandemic to hurt families who prefer to send their children to private schools is all in a day’s work.