In court, 3 strikes bench ED's CARES Act ambiguity take

The CARES Act says local educational agencies should fund equitable services "in the same manner as provided under" ESEA Section 1117, but going back to at least April, the U.S. Education Department has found the phrase "in the same manner as provided under" ambiguous. As a result, the department issued regs in June that direct districts to pay for equitable services in ways that don't look a whole lot like Section 1117 and -- unsurprisingly -- have created litigation.

One of the cases has now resulted in an injunction blocking ED from implementing its stance on the CARES Act equitable services requirements. In Washington v. DeVos, No. 2:20-cv-1119-BJR (W.D. Wash. 08/21/20), a federal District Court determined that the law "could hardly be less ambiguous" and put forth the following three reasons for why ED's read "is, generously put, a stretch."

1. "In the same manner" doesn't mean something different from "as provided in." "The Department's argument that an ambiguity arises from the use of a slightly longer phrase ... would render all but the most laconic Congressional directives ambiguous," the court explained. "[The CARES Act] contains a clear reference to the poverty-based formula found in Section 1117, which ends the [c]ourt's inquiry."
2. CARES Act requirements for consultation and public control of funds that are similar to those in Section 1117 don't create redundancies. "A straightforward reading of [the CARES Act's] reference to Section 1117 is that 'in the same manner as provided in' incorporates only Section 1117's poverty-based formula, not that it requires wholesale import of all of Section 1117," the court reasoned. "The Department's convoluted reading essentially creates an ambiguity to justify resolving it, thereby thwarting Congress's obvious intent."
3. ED misreads the CARES Act requirement for LEAs to "provide equitable" services to discern an intent that funding for private schools should be "equal." According to the court, "it should be apparent" that "equitable" and "equal" don't mean the same thing. "Thus, the context and plain meaning of this term show that Congress meant 'equitable services' to refer to the apportioned funds themselves, i.e., the support LEAs must provide private schools, not to the manner of apportioning that funding," the court wrote. "For that, ... Congress referred the LEAs to Section 1117."

With no ambiguity to rely on, ED, in the court's view, had no authority to come out with its CARES Act equitable services rule.