Education Law Center is calling on Governor Phil Murphy and his Administration to immediately comply with a U.S. District Court’s ruling in NAACP v. DeVos, which invalidated a U.S. Department of Education (USED) rule funneling illegal levels of federal COVID-19 relief funds to private schools. 

In May, the New Jersey Department of Education (NJDOE) allocated funds to public school districts from the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The NJDOE calculated the share of that money districts must spend on “equitable services” for private schools under U.S. Secretary of Education Betsy DeVos’ mandate that it be based on the total number of private school students rather than the number from low-income families. DeVos’  legally flawed directive significantly inflated the amount of funding public schools would have to divert to services for private school students.

On September 4, the U.S. District Court for the District of Columbia ruled in the NAACP litigation that DeVos’ regulation requiring funding based on all private school students, not just those who are poor, contradicted the plain language in the CARES Act. The court then  invalidated the rule nationwide.

But instead of instructing New Jersey districts to revise their spending on private schools to comply with the District Court’s order, the NJDOE issued guidance on October 7 telling  districts to continue spending on equitable services at the higher levels deemed illegal in the NAACP ruling. The NJDOE also announced that the Murphy Administration will allocate to districts over $26 million in additional CARES Act money, drawn from State set-aside funds, to underwrite this illegal course of action. 

In its October 7 guidance, the NJDOE states that “to ensure services to both public and nonpublic students are not impacted, the amounts currently allocated for equitable services will not change” [emphasis added]. Because those “currently allocated” amounts were based on DeVos’ illegal interpretation, the Murphy Administration’s decision to maintain the higher level of funding for private schools directly violates the NAACP ruling and the CARES Act.

“New Jersey’s public schools need every dollar of CARES Act funds for urgent needs, such as closing the digital divide and making sure schools are safe to reopen,” said David Sciarra, ELC Executive Director. “The Governor’s allocation of funding for all private school students, even those from wealthy families, is not only illegal but also takes away scarce resources from public school students.”    

“The court has made clear how allocations for private school services must be calculated. Rather than facilitating equitable services spending that contradicts the clear language of the law, NJDOE should use this $26 million on critical public education expenditures that comply with the CARES Act’s requirements,” said Jessica Levin, ELC Senior Attorney and director of Public Funds Public Schools (PFPS). The law firm Munger, Tolles & Olson LLP, Education Law Center and the Southern Poverty Law Center, which collaborate on PFPS, represented the plaintiffs in NAACP.


Press Contact:

Sharon Krengel
Policy and Outreach Director
973-624-1815, x 24






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Press Contact:
Sharon Krengel
Director of Policy, Strategic Partnerships and Communications
973-624-1815, x240