The DOJ pits public-school students against private-school students in latest lawsuit against the U.S. Department of Education.

The COVID pandemic has wreaked havoc on many different types of communities all across the Badger state. As Wisconsin shutdown, one of the largest sectors affected by the pandemic were K-12 schools, public and private.

The pandemic doesn’t discriminate, but a state agency wants to. The Wisconsin Department of Justice, along with California, District of Columbia, Maine, Michigan and New Mexico, filed a lawsuit this week against the U.S. Department of Education (ED) arguing that public-school students are more deserving than private-school students of the federal Coronavirus Aid, Relief and Economic Security (CARES) Act funding.

Wisconsin private and public schools have been responding to a multitude of challenges throughout the pandemic — instituting distance learning, providing students access to food, and providing for students’ mental and physical wellbeing.

Congress recognized that the pandemic and state shutdowns created significant difficulties and additional support was needed to reopen schools safely in the fall. The CARES Act Education Stabilization Fund did just that.

Unfortunately, the federal law was ambiguous as to how the funding should be distributed to private schools under the Elementary and Secondary Schools Emergency Relief Fund (ESSER). While specific provisions clearly require that public schools allow private schools to equitably participate, how the federal dollars should be allocated was less clear.

The ED provided clarity through an interim final rule, effective July 1, that directs states and districts on how to include private-school students in the allocation of funding.

The DOJ lawsuit argues that public-school students are more deserving of these funds and that the ED’s rule is denying them access to necessary funding by diverting some money to private schools. For Wisconsin, about $4 million is the amount being debated. If the DeVos rule is upheld, that money will be distributed to private schools. If DOJ’s lawsuit is successful, that funding will be directed to public school districts only.

Specifically, the lawsuit claims that public school districts have been “forced to transition to remote delivery of instruction, implement new health and safety guidelines, and meet the novel and challenging needs of their students arising from the pandemic” and so they need additional federal funding.

But in Wisconsin, private schools were addressing the same challenges and providing similar resources for their students. For example, St. Augustine Prep in Milwaukee was providing breakfast and lunch to any child under the age of 18 while also providing distance instruction almost immediately after the state ordered schools to close. With the state’s largest school district (Milwaukee Public Schools) taking weeks before requiring teachers to interact with their students, some schools undoubtedly did this better than others.

To direct more funds to public schools, the DOJ argues that the CARES Act is not ambiguous and that congressional intent was to allocate funding to private schools based on the number of Title I students. However, the DOJ does not want to limit public schools in how they can use the funding for their schools. Essentially, they want to limit private schools’ funds (based on a smaller number of students) and provide public school districts with more funding for all of their students (regardless of income status).

The ESSER funds are clearly designed by Congress to benefit the whole school population. Congress directed 12 specific ways the funding can be used, including for purchasing of cleaning supplies. It would not make sense to limit the cleaning supplies to benefit just low-income private school students.

This politically motivated lawsuit is more about Secretary DeVos and the public school establishment than it is about students.

Libby Sobic is director and legal counsel for education policy at the Wisconsin Institute for Law & Liberty.