Five US states, as well as the District of Columbia (DC), filed a 46-page lawsuit against Betsy DeVos in her role as the Secretary of Education on Tuesday, asking a federal court to declare a recent Department of Education (DOED) rule interpreting the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) unlawful. Michigan, California, Maine, New Mexico, and Wisconsin joined DC, seeking both injunctive and declaratory relief in the US District Court for the Northern District of California. The declaratory relief sought would rule all versions of the DOED Rule unlawful while the injunctive relief would enjoin “the Department . . . its officers, employees, and agents from applying or enforcing the Rule.”

Last month, the DOED published the non-binding rule, stating that all students in private K-12 schools would benefit from the funds allocated for education in the CARES act. The States argue that Congress directed the local educational agencies (LEAs) to allocate CARES Act funds in proportion to Title I-A funds (funds from the Elementary and Secondary Education Act of 1965 [ESEA]). If LEAs followed Title I-A to distribute CARES Act funds, funds would only be allocated to private schools based on their populations of “at-risk” students versus their entire student populations.

The lawsuit alleges that the Rule violates the separation of powers principles, the relatedness requirement of the Spending Clause, the Administrative Procedure Act (APA), and that the Rule is ultra vires.