A lawsuit filed this week accuses the U.S. Department of Education of jeopardizing students with disabilities by misdirecting funds meant to help schools deal with fallout from the pandemic.

Earlier this year, Congress included billions of dollars in funding for schools in the Coronavirus Aid, Relief and Economic Security, or CARES, Act. But rules issued by the Education Department this summer about how that money should be allocated allow a good chunk of the money to be shared with private schools.

Steering the much-needed funds away from public schools is especially problematic for students with disabilities, according to the Council of Parent Attorneys and Advocates, or COPAA, the nonprofit that filed the suit and works to advocate for the rights of students with disabilities and their families. Unlike private schools, public schools are legally required to serve students with disabilities.

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“It is reprehensible that this administration is pressuring schools to open quickly while simultaneously taking away the very resources that would allow them to do so safely and effectively,” said Selene Almazan, legal director for COPAA. “As America’s schools, communities and families are in the midst of an economic and health crisis, now is not the time to deprive millions of public school children the education services they need — including students with disabilities, a population that Congress specifically intended the CARES Act funds to benefit.”

According to COPAA, as much as $1.5 billion could be diverted away from public schools under the rule just as these schools are dealing with higher costs for distance learning, changes to how they serve students with disabilities and other needs. Meanwhile, the state tax revenues that fund public schools have declined.

“At a time when students with disabilities are likely to have an increased need for academic and socio-emotional services and supports due to the disruption of their educations during the pandemic, the department through the (rule) has illegally limited the resources available to these students instead,” the lawsuit states.

The suit filed in the U.S. District Court for the District of Maryland names Secretary of Education Betsy DeVos and the Education Department. It calls for the rule to be set aside because it is contrary to the intent of Congress and in violation of the Administrative Procedure Act.

The rule is also facing legal challenges from other groups including several states and local school boards.

Officials from the Education Department are standing by the rule.

“This is just another attempt by the public school lobby to deny any help to the millions of students who attend a school of their choice, including many children with disabilities,” said Angela Morabito, a spokeswoman for the agency. “This pandemic affected all students and the CARES Act requires federal funds help all students. We are following the law.”

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