LOS ANGELES (CBSLA) — The State of California is suing the Department of Education over a billion-and-a-half dollars from the CARES Act that Secretary of Education Betsy DeVos wants to go toward private schools.

Xavier Becerra, along with state Superintendent of Public Instruction Tony Thurmond, announced the lawsuit Tuesday.

DeVos issued a rule last month that critics say would divert hundreds of millions of aid from the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, to private school students. Becerra says such a rule exceeds her authority, undermines Congress’ intent and violates the separation of powers provision in the U.S. Constitution.

“This rule distorts Congress’ mandate by requiring the inclusion of private schools based on their total population and not any income as directed by Title I and the CARES Act,” Becerra said.

In California alone, Becerra says the rule would divert tens of millions of dollars away from taxpayer-funded public schools in the poorest school districts to private institutions. Other states, including Michigan, say they plan to join the suit.

The CARES Act earmarked more than $13 billion to help public schools nationwide cover pandemic-related costs.

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