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Federal Flash: A Judge Says “No” to DeVos, the Senate Says “No” to McConnell, and the House Says “Yes” to Diversity

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September 16, 2020 06:11 pm

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Education Secretary Betsy DeVos is forced to abandon her policy to shuttle more funding to private schools with COVID-19 relief funds. The U.S. Senate can’t quite muster the votes for Majority Leader Mitch McConnell’s (R-KY) COVID-19 legislation. The U.S. House of Representatives passed the first federal legislation on school integration in more than thirty years.

Federal Judge Rules Against Secretary Devos

Ever since Secretary of Education DeVos took office, she has been focused on finding ways to fund private schools with federal dollars, with little success. That streak continued as a federal district court judge sided with the NAACP against the Secretary’s equitable services rule and found she had no authority to impose conditions on funding provided under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, legislation passed by Congress to respond to the coronavirus.

Our viewers may recall that Devos’s equitable services rule had been halted temporarily in several states after two judges issued preliminary injunctions. The latest ruling applies nationwide and, as a result, the U.S. Department of Education’s (ED’s) regulation is no longer in effect. The DeVos rule would have pushed school districts to spend a larger share of CARES Act funds on private schools than they do under Title I of the Every Student Succeeds Act (ESSA). School districts would have had two options for how to distribute CARES Act funds, but if they wanted to follow the same policy as under ESSA—instead of DeVos’s preferred method—they would have faced additional restrictions.  

COVID-19 Relief Bill Stalls in Senate

Schools are reopening but without any additional assistance from Washington, DC. Bipartisan negotiations between congressional leaders and the White House on the next COVID-19 relief package came to a halt in August and have yet to resume. Last week, Senate Majority Leader McConnell proposed a slimmed-down version of the $1 trillion Health, Economic Assistance, Liability Protection, and Schools (HEALS ) Act, the proposal advanced by Republican leaders back in July that failed to gain support from the White House or even McConnell’s own caucus.

McConnell’s new proposal, the Delivering Immediate Relief to America’s Families, Schools, and Small Business Act, costs about half as much as the original HEALS Act. By lowering the price tag to about $500 billion, McConnell was able to secure the support of his Republican colleagues. Democrats, on the other hand, balked at the proposal. While some called the bill “skinny,” Senate Minority Leader Chuck Schumer (D-NY) called it “emaciated.”

One thing Senate Republicans’ COVID-19 relief bill is not slim on, however, is support for private schools. The bill requires states to set aside funds for private school scholarships; creates a new tax credit for people or businesses that donate to these scholarship funds; and expands the uses of 529 plans for homeschooling and for a wide range of other uses related to public, private, or religious schools, including books, tutoring, and dual enrollment.

Overall, the legislation provides $70 billion for elementary and secondary education; however, after funds are set aside to fund the private school scholarships, two-thirds of the remaining funds are dependent on district plans to reopen schools for in-person instruction.

After the bill failed to garner the sixty votes needed to pass the Senate, chances for any COVID-19 relief legislation are in jeopardy with members of Congress anxious to leave town and campaign heading into the election. However, House Speaker Nancy Pelosi (D-CA) said she will keep the House in session until they pass a coronavirus relief bill. We’ll keep you posted.  

House Introduces Legislation Focused on Diversity

On a more positive note, the House of Representatives passed the Strength in Diversity Act introduced by Representative Martha Fudge (D-OH). This is the first piece of legislation focused on school integration to pass the House in thirty years.

The legislation would provide school districts with funding to develop or implement plans to improve diversity in public schools and publicly funded early childhood education programs. Planning grants could be used for designing strategies to improve diversity in schools, such as weighted lotteries, revised feeder patters, and school boundary redesign. Implementation grants could be used for activities such as hiring additional teachers and support staff, transportation, and activities to increase engagement between children from different racial, economic, and cultural backgrounds.

The House also passed the Equity and Inclusion Enforcement Act introduced by Representatives Bobby Scott (D-VA) and Jerry Nadler (D-NY), chairmen of the House Education and Judiciary Committees respectively. The bill, which would allow families to sue over policies with a “disparate impact,” has attracted a veto threat from the White House. Such policies may not have been intentionally designed to discriminate, but nonetheless have a discriminatory effect on students of color. The bill would supersede Alexander v. Sandoval, a 2001 Supreme Court decision that held that Title VI of the Civil Rights Act of 1964 only prohibits intentional discrimination.

In addition, the bill establishes a new assistant secretary for equity and inclusion at ED and requires schools to designate a Title VI monitor to oversee implementation of the Civil Rights Act’s prohibition against racial discrimination. The White House opposes these policies as well, stating that the bill would “redirect vital resources that are needed to serve students in pursuit of an ideological agenda.”

Needless to say, All4Ed disagrees. Antidiscrimination is not an ideological agenda, it’s an American agenda. We are pleased to see the House pass both the Equity and Inclusion Enforcement Act and the Strength in Diversity Act, and call upon the Senate to do so as well.


This blog post represents a slightly edited transcript of the September 16 episode of Federal Flash, All4Ed’s video series on important developments in education policy in Washington, DC. The podcast and video versions are embedded below. For an alert when the next episode of Federal Flash is available, email alliance@all4ed.org.


Phillip Lovell is vice president of policy development and government relations and Anne Hyslop is assistant director for policy development and government relations at All4Ed.


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