Make America Sue Again! Why The CARES Act Ed Funding Lawsuit Matters

This lawsuit over how to disburse the CARES Act funds for schools is refreshing!

When the Trump Administration first announced how it planned to allocate the money – using an approach that favored private schools relative to their usual allocations* in federal policy** – there were immediate calls to just ignore the law and distribute the money differently.

No matter how righteous this may have felt it was, and is, a bad idea.

Anyone with an inkling of understanding of the history of federal policy around equity knows how risky it is for low-income and racial and ethnic minorities when states or schools start deciding to ignore federal rules. This isn’t just Civil Rights-era history, it’s Clinton and Bush-era education history, too. In this particular instance the issue was more or less funding for public schools based on how this money was allocated. Yet the specifics matter less than the underlying principle: It’s not good for equity when school officials and states start ignoring federal laws based on their whims.

Think of it this way. If states and schools were so benevolent and fair minded toward historically marginalized students that we didn’t have to worry about them following these various rules and policies that exist in an effort to further equity then you wouldn’t need the various rules and policies in the first place. And if such a spirit of equity doesn’t flow through all corners of our education system, why the rules exist, then it’s important that these rules be followed or altered through an established process – for instance this lawsuit – rather than arbitrarily.

This is not at all unlike an idea that comes up in free speech debates. In a 1994 essay Henry Louis Gates Jr. pointed out a basic paradox in efforts to put forward governmental restrictions on hate or other undesirable kinds of speech. Basically, if society and the government is benign on issues involving discrimination then you don’t need such restrictions, if it’s not then why would you vest anyone with such power and authority?***

It’s more or less the same thing here, it might not be education policies and laws you don’t like being ignored next time. Sure, in the passions of the moment telling the Trump Administration to pound sand feels good, and might be good politics, but even if you’re convinced of the rightness of your cause in a particular instance it’s a shortsighted way to fight for more equity in education because given the history and context marginalized students will invariably be on the other end of efforts to ignore federal law. You can bet on that – don’t take my word for it just go look at the outcome data.

So, other than lawyers it’s rare that most people are excited to see a lawsuit. But this is a good one because it’s the proper way to resolve this disagreement and in a functioning political system if it can’t be resolved politically then it’s appropriate for the courts to settle the matter and all parties to respect, if not agree, with that resolution.****

*This is one of these weird things where you hear a lot of people saying ‘no public money for private schools!’ all the time, but besides vouchers in some places, private schools get a lot of public education dollars for things like Title I, special education, and other programs intended to benefit students. The question is more what dollars and under what terms. The no money / high wall ship sailed a long time ago.

**The Administration responded to some of the criticism in its final policy for the funding but not enough to mollify critics.

***Similar to this debate in education from a few years ago.

****Separate issue for another time, it wouldn’t kill Congress to write laws more specifically and empower agencies with discretion a little less.

(Earlier version of this said “direction” in last line not “discretion” because of an autocorrect error).