The National Association for the Advancement of Colored People is the latest entity to file a lawsuit against the US Department of Education over its guidance that local education agencies must use federal coronavirus aid to provide “equitable services to students and teachers in non-public schools.”

The lawsuit contends that Congress intended the CARES Act, which the president signed into law March 27, to apportion coronavirus relief funds based on the number of low-income students at both public and private schools in each district, “in the same manner” as Title I funds.

In contrast, an Education Department rule stated that the funds ought to be distributed based on the total number of students in both public and private schools, resulting in fewer dollars for public schools, the lawsuit contends.

The Education Department amended the rule in late June, following concerns that Catholic and other non-public schools were being excluded from sufficient epidemic relief funds to support protective equipment for students and teachers, cleaning, training in remote education, and distance education tools.

Education Secretary Betsy DeVos has defended the rule by stating it recognizes that CARES Act programs are not Title I programs.

“There is no reasonable explanation for debating the use of federal funding to serve both public and private K-12 students when federal funding, including CARES Act funding, flows to both public and private higher education institutions,” she said.

While local education agencies have “broad latitude” about the use of funds, it is expected that most of the funding will go to services responding to the problems of the coronavirus epidemic, including “equipment to protect student and teacher health” and building remote education capacity, the Department of Education said.

The rule discourages “the limited number of financially secure private schools” from seeking these services.

Michigan, California, Maine, New Mexico, Wisconsin, and the District of Columbia also are suing the Trump administration for directing emergency relief aid to students at private schools.

Congress, under the CARES Act in March, sent relief funding for education to the states, to distribute to local educational agencies.

Although some of the Title I-A funds could go to help private school students, under Title I of the Elementary and Secondary Education Act they are specifically meant for “at-risk private-school students” and not students in general, the states’ lawsuit says.

The Pasadena Unified School District in California, Stamford Public Schools in Connecticut, and Denver Public Schools in Colorado have all joined the lawsuit.

Some 5.7 million children, about 10% of school-age students, attend private schools, the Council for American Private Education, has said. About 8% of private school students are living in poor households, compared to about 19% of public school students.

In early June the Pennsylvania Catholic Conference asked the U.S. Department of Education to reverse state authorities’ decisions that the conference said gave insufficient coronavirus relief funds to Catholic and other private schools. Some $523.8 million in K-12 federal aid went to Pennsylvania through the CARES Act.

Only $19 million went to Pennsylvania’s private schools, while the state Catholic conference said $66 million was the more equitable figure.

The National Catholic Educational Association estimated last month that at least 100 Catholic elementary and high schools across the United States will not reopen for the fall semester, with many suffering from low enrollment and decreased donations amid the COVID-19 pandemic.