The U.S. Department of Education issued an Interim Final Rule yesterday (June 25) detailing exactly how school districts must share CARES Act funding and equitable services with private schools.
The controversial rule carries the force of law and took effect immediately. It signals that U.S. Education Secretary Betsy DeVos is doubling down on her intention to reroute millions of dollars in coronavirus aid money to K-12 private school students. The rule is also likely to sew confusion and slow the flow of CARES act funding to public schools as states and districts figure out how to respond.
While the interim final rule took effect immediately, there will be a 30-day comment period. We encourage school leaders to offer comments about the interim final rule. We will provide additional information on how to submit comments as it becomes available.
According to an analysis by the Learning Policy Institute, DeVos’ interpretation of the CARES Act could increase the share of CARES Act funding directed to private schools from about $127 million to over $1.5 billion.
As we noted in an earlier post, with public schools across the nation likely facing severe funding cuts, Congress responded by passing the CARES Act in late March. That Act provided about $13 billion in aid to public schools to be distributed to districts according to their allocation of federal Title I monies. Title I funds are distributed to public schools on the basis of how many low-income students are enrolled in a district or school.
Title I funds also carry with them an obligation to support “equitable participation” in which private schools choosing to take advantage of services supported by Title I funds must work together with school districts to decide how best to use the funding. The sharing of those Title I funds is based on the number of low-income students served by the private school.
In April, however, Sec. DeVos issued non-binding guidance that public schools needed to use that money to provide services to all students in private schools not just low-income students in private schools. Many members of Congress immediately responded that that is not what they intended. Rather they intended the money to be allocated to private schools based on how many low-income students they serve, as is the case with Title I funds and just as the CARES Act funding is allocated to public schools.
The dispute continues. In advance of the rule’s announcement, 74 concerned members of Congress sent a letter to Sec. DeVos urging her to rescind her interpretation. That letter was unsuccessful.
In the rule issued yesterday (June 25), public school districts are given two alternatives: if a district spends it CARES Act funding allocation for students in all its public schools, it must calculate the funds for equitable services to private schools based on the total number of students enrolled in private schools in the district. However, if a school district chooses to use CARES Act funding only for students in its Title I schools, it has can either:
- 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 for equitable services using the district’s Title I, Part A share from the 2019-2020 school year.
If a district uses one of the above options for allocating its CARES Act funding based on its low-income students only, it must not violate the Title I supplement-not-supplant requirement in section 1118(b)(2) of the ESEA. In other words, a district cannot divert state or local funds from its Title I schools because they receive CARES Act funding.
In a press release that accompanied the issuance of the interim final rule, Secretary DeVos argues that CARES Act funding is a special pandemic-related appropriation, and that nothing in the law specifically states that funds are to be distributed like regular Title I appropriations.
Editor’s Note: In Wisconsin, the DPI submitted a plan for the allocation of CARES Act funding (the ESSER) to the Joint Finance Committee that was approved by the Committee. That plan called for allocating equitable services to private schools based on the number of low-income students served by private schools. The DPI had issued guidance to school districts and private schools based on that approval. Stay tuned.
