We recently reported that on April 30, 2020, the U.S. Department of Education (“DOE”) issued non-binding guidance regarding the provision of equitable services to non-public school students and teachers under two grant programs established by the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”). These two programs are the Governor’s Emergency Education Relief (“GEER”) Fund and the Elementary and Secondary School Education Relief (“ESSER”) Fund.
The DOE’s April 30 guidance included an interpretation of Section 18005, subdivision (a) of the CARES Act (“Section 18005(a)”), which requires a Local Education Agency (“LEA”) to provide equitable services to non-public school students and teachers “in the same manner as provided under Section 1117”of the Elementary and Secondary Education Act of 1965 (“ESEA”). The DOE interpreted this language to mean that an LEA must make available equitable services to all students at participating non-public schools located within the LEA’s boundaries unless a state’s governor or State Education Agency (“SEA”), e.g. the California Department of Education (“CDE”), targets certain portions of the funds for specific purposes or subpopulations. The April 30 guidance also provided instructions to LEAs regarding how to determine the percentage of funds that an LEA must reserve for purposes of providing equitable services to non-public school students and teachers.
The interpretation of the provision of equitable services under the CARES Act that is found in the April 30 guidance differed from Section 1117 in that under Section 1117, an LEA may only provide equitable services to a subpopulation of students at non-public schools, i.e., students living in an LEA’s boundaries who are deemed eligible for Title I services because they live in low-income communities. The guidance also suggested that LEAs had to provide ESSER and GEER-funded services to all public school students even if such students did not attend Title I schools. The DOE’s interpretation raised questions regarding the precise scope of LEA’s rights and obligations regarding the use of ESSER and GEER funds and the provision of equitable services to students and teachers at non-public schools.
The DOE’s Interim Rules
Last week, the DOE issued interim final rules (the “Interim Rules”) that further clarify LEAs’ rights and obligations regarding the provision of equitable services to students and teachers at non-public schools using ESSER and GEER funds. Unlike the DOE’s April 30 guidance, the Interim Rules, which add provisions to the Title 34 of Code of Federal Regulations, are binding on LEAs. The Interim Rules went into effect immediately upon publication.
Like the April 30 guidance, the Interim Rules specifically address the DOE’s interpretation of Section 18005(a)’s requirement that LEAs “provide equitable services in the same manner as provided under section 1117 of the ESEA . . . to students and teachers in non-public schools, as determined in consultation with representatives of non-public schools.” However, while the Interim Rules indicate that their purpose is “to clarify the provision of equitable services under section 18005 of the CARES Act,” they also explain that the Interim Rules expand “the options available for determining the proportional share of CARES Act funds that must be made available for equitable services by allowing an LEA to select a measure based on the students and schools it will serve with CARES Act funds.” In other words, the Interim Rules provide LEAs with additional flexibility in the provision of GEER and/or ESSER funded services by providing LEAs with a choice regarding the scope of students and teachers at public schools who will be eligible to receive GEER and/or ESSER funded services. The choice LEAs make regarding which students and teachers will be eligible for ESSER and/or GEER funds at public schools will determine the measures the LEA may utilize to determine the proportional share of ESSER and/or GEER funds it must reserve for purposes of providing equitable services to students and teachers at participating non-public schools.
Under the Interim Rules, a method by which an LEA may determine the proportional share of funds that must be reserved to provide equitable services to students and teachers at participating non-public schools turns on whether the LEA decides to use GEER and/or ESSER funds only at its Title I schools:
1. An LEA may choose to use all if its funds under the GEER and/or ESSER programs “to serve only students and teachers in public schools participating under Title I, Part A of the ESEA.” In other words, an LEA may decide that it will only use funds received through the GEER and/or ESSER programs to serve students and teachers in Title I schools, as opposed to students and teachers at all public schools within an LEA.
If an LEA elects to limit ESSER and/or GEER-funded services to students and teachers in Title I schools, the LEA may calculate the “proportional share” of funds that must be reserved to provide services to students and teachers in participating non-public schools by using:
(a) The proportional share of Title I, Part A funds it calculated under section 1117(a)(4)(A) of the ESEA for the 2019-2020 school year;
(b) The number of children, ages 5 through 17, who attend each non-public school in the LEA that will participate under a CARES Act program and are from low-income families compared to the total number of children, ages 5 through 17, who are from low-income families in both Title I schools and participating non-public elementary and secondary schools in the LEA; or
(c) The number of students enrolled in participating non-public elementary and secondary schools in the LEA compared to total enrollment in both public and participating nonpublic elementary and secondary schools in the LEA. This third method is the method the DOE directed LEAs to employ in the April 30 guidelines.
An LEA that decides to direct GEER and/or ESSER-funded services to students and teachers only in Title I schools must comply with the “supplement not supplant” requirement of Section 1118(b) of the ESEA. This means in part that an LEA cannot allocate CARES Act funds to Title I schools and then redirect non-Title I funds to non-Title I schools.
2. Alternatively, an LEA may choose to use ESSER and/or GEER funds to serve students and teachers across the LEA irrespective of whether or not the students and teachers attend or work at a Title I school. Under this method, ESSER and/or GEER-funded services would be available to all students and teachers at public schools “without regard to poverty, low achievement, or residence in a participating Title I public school attendance area.”
If an LEA elects to provide services under this approach, the LEA must calculate the “proportional share” of funds that must be distributed to students and teachers in participating non-public schools based on enrollment in participating non-public elementary and secondary schools in the LEA compared to the total enrollment in both public and participating nonpublic elementary and secondary schools in the LEA., i.e. method “c” above.
Under any method of calculating the proportional share of CARES Act funds that must be reserved to provide equitable services to students and teachers at non-public schools, an LEA must calculate the proportional share before accounting for administrative expenditures.
The Interim Rules further clarify that LEAs will maintain control of ESSER and GEER funds and that “educational services and benefits, including materials and equipment” that an LEA provides to students and teachers in non-public schools under the CARES Acts program “must be secular, neutral, and nonideological.”
LEAs may elect to use funds from a CARES Act program, e.g. the ESSER program, to serve only students and teachers in its Title I schools and funds from the other CARES Act program, e.g. the GEER program, to serve students and teachers in any public school within the LEA. In other words, an LEA may use one measure for the GEER program and another measure for the ESSER program.
However, regardless of the measure an LEA uses to calculate the proportional share of CARES Act funds that must be reserved to provide equitable services to students and teachers at non-public schools, the Interim Rules make clear that an LEA must “provide the opportunity to receive services to students and teachers in any non-public elementary or secondary school in the LEA.” We interpret this to mean that even if an LEA elects to utilize GEER and/or ESSER funds to service students and teachers only at Title I schools, the LEA may not limit the delivery of equitable services to students and teachers at non-public schools based on the non-public school’s population of students who reside in low-income (i.e., Title I) communities. While this means that equitable services available to non-public schools under the CARES Act programs must be made available to all non-public schools within the LEAs boundaries, the Interim Rules makes clear that the DOE discourages non-public K-12 schools from accepting CARES Act-funded equitable services, including non-public boarding and day schools “with tuition and fees comparable to those charged by the most highly selective postsecondary institutions,” which “tend to serve families from the highest income brackets” even if such non-public schools offer “a limited number of scholarships to low-and middle-income students each year.” The DOE views such schools as having ample resources to serve their students and teachers without the need to rely on taxpayer funds under the CARES Act.
The DOE’s caution to certain non-public K-12 schools not to accept GEER and ESSER-funded equitable services is reminiscent of warnings to borrowers under the Small Business Administration’s (“SBA”) Paycheck Protection Program (“PPP”), another CARES Act program, not to accept loans unless the small business, e.g., independent school, can certify the need for such federal assistance.