WASHINGTON, D.C. — U.S. Secretary of Education Betsy DeVos this week issued a rule that would help to ensure all students whose learning was impacted by COVID-19 are served equitably by emergency funding authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act, no matter where they attend school. The Interim Final Rule (IFR), which becomes effective immediately, outlines how local education agencies (LEAs) must calculate the emergency funds available for providing equitable services to students and teachers in private schools.
Providing equitable services is long-standing law under the Elementary and Secondary Education Act (ESEA). LEAs provide no money to private schools under these equitable services provisions. Instead, they provide secular, neutral, and nonideological services to nonpublic schools after consulting with private school leaders about the needs of students and teachers. Under the CARES Act, LEAs have broad latitude about the uses of funds, but it is expected that most of the emergency funding will go toward services like cleaning, equipment to protect student and teacher health, teacher training in remote instruction, and distance education tools. The Department’s IFR discourages the limited number of financially secure private schools from seeking equitable services.
“The CARES Act is a special, pandemic-related appropriation to benefit all American students, teachers, and families impacted by coronavirus,” said Secretary DeVos. “There is nothing in the law Congress passed that would allow districts to discriminate against children and teachers based on private school attendance and employment. In this new rule, we recognized 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.”
Under the rule, if an LEA chooses to use CARES Act funding for students in all its public schools, it still must calculate the funds for equitable services based on students enrolled in private schools in the district. However, if an LEA chooses to use CARES Act funding only for students in its Title I schools, it has two options:
- Calculate the funds for equitable services based on the total number of low-income students in Title I and participating private schools; or
- Calculate the funds using the LEA’s Title I, Part A share from the 2019-2020 school year.
If an LEA uses one of the low-income student options, the LEA must not violate the Title I supplement-not-supplant requirement in section 1118(b)(2) of the ESEA. That is, LEAs cannot divert state or local funds from its Title I schools because they receive CARES Act funds.
Most private schools serving low- and middle-income communities are under great financial strain due to COVID-19 because they are typically dependent on tuition from families and donations from their communities. Because the economic disruptions are shrinking these revenue sources, more than 100 private schools have already announced they will not be able to reopen following the pandemic, and hundreds more are facing a similar fate. The local public schools may have to absorb thousands of students transferring from private schools at a time when public schools are already under their own financial strain.
The Department previously issued guidance on equitable services under the CARES Act on April 30, 2020. In the April 30 guidance, the Department advised LEAs to calculate the funds that must be reserved to provide equitable services to private school students and teachers under the CARES Act programs based on enrollment data in a district. So, if private-school students represented 8% of enrollment, the funds for equitable services would be set at 8% of the total funds the LEA received under a CARES Act program.
The IFR has been unofficially published here on the Department’s website. Once the rule is officially published in the Federal Register, it will be effective immediately and open for public comment for 30 days.
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