New Guidance on CARES Act Equitable Services

The U.S. Department of Education (ED) published a question and answer (Q&A) document yesterday that addresses local educational agencies’ (LEAs’) responsibility to provide equitable services to non-public school students and teachers under the Elementary and Secondary School Emergency Relief (ESSER) Fund and the Governor’s Emergency Education Relief (GEER) Fund, which were established by the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

The guidance significantly expands which schools will receive equitable services funding compared to programs under the Elementary and Secondary Education Act, and how much money is available to private schools.  The CARES Act requires equitable services to be provided “in the same manner as under section 1117” of Title I, Part A of ESEA.  ED, however, is interpreting the law to require LEAs to provide equitable services to students and teachers in all non-public schools located within the boundaries of the LEA, not only those schools which serve Title I-eligible students, meaning a non-public school does not have to have previously participated in equitable services under Title I, Part A or Title VIII of the ESEA in order to participate under the CARES Act programs.  In a change from the Title I, Part A, equitable services requirements, under the CARES Act, programs are not based on residence in a participating Title I public school attendance area.  ED states that because CARES Act funds generally are not limited to only serving public Title I-eligible students, then there should be no such limitations on the equitable services for private school students either.

Many other provisions from Section 1117 of ESEA in carrying out equitable services will apply to the CARES Act funding, including consultation requirements, requirements that materials be secular and non-ideological, that services be provided in a timely manner, non-public officials’ right to appeal, and requirements that funds and equipment remain in control of the LEA.  With regards to consultation, ED tells LEAs that this can be conducted remotely given the current circumstances with COVID-19 closures but that LEAs must still initiate.  LEAs will now also have to reach out to additional private schools which have not previously been served.

The proportional share for the CARES Act equitable services funding should be determined from the total amount of Title I, Part A funds it receives prior to reserving funds for allowable expenditures, like administrative costs, and before making allocations to participating public schools.  In calculating the proportional share, the LEA will use enrollment data to determine the overall number of children who are enrolled in public schools and non-public schools in the LEA that will participate under the ESSER or GEER funds, or both.  Using the proportion of students who are enrolled in participating non-public schools, the LEA will determine the funds available for equitable services based on the proportional share of the LEA’s total allocation under each CARES Act program separately. 

After determining the proportional share, to calculate the amount to be used for services in a given non-public school, the LEA will first reserve a necessary and reasonable amount of funds for administering equitable services and then will divide the remainder of the proportional share amount by the total enrollment in non-public schools whose students and teachers will participate in the CARES Act programs to calculate a per-pupil amount.  The LEA will then multiply the per-pupil amount by the enrollment in an individual non-public school to determine the amount of services the LEA can provide to that school.

The regulations surrounding supplement, not supplant for Title I, Part A equitable services and limitations only allowing services to meet the needs of participating non-public school students do not apply to the CARES Act funding (34 CFR 200.66).  The CARES Act equitable services must be available to benefit non-public teachers and students and the services and benefits available are the same as those available to public school teachers and students under the CARES Act.  ED suggests that any activities already allowable under the Elementary and Secondary Education Act will be allowable for equitable services.  However, the public agency – in this case, the LEA – must still maintain control of funds and hold title to equipment and devices. 

The guidance also states that for-profit non-public schools or new schools are not eligible to receive equitable services.  Under the CARES Act, a “non-public school” is defined as “a non-public elementary or secondary school that (A) is accredited, licensed, or otherwise operates in accordance with State law; and (B) was in existence prior to the date of the qualifying emergency for the CARES Act programs.”

The guidance is expected to garner backlash from many lawmakers as well as school districts given the expansion of funds that will be used for services in non-public schools compared to ESEA programs.  In addition, LEAs will be required to consult with a much larger number of non-public schools for this process, which could result in delays in services.

The Q&A on equitable services is available here.

Author: KSC

About the Author

Kelly Christiansen is a Senior Legislative Analyst with the Washington, DC law firm of The Bruman Group, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Association of State Program Administrators (NAESPA).