Updated September 1, 2020 to reflect preliminary injunctions issued in 1) the United States District Court for the Western District of Washington and 2) the United States District Court for the Northern District of California.
*Updated September 14, 2020 to reflect an order by the United States District Court for the District of Columbia, vacating the IFR, and September 30, 2020 to provide further clarification.
An asterisk (*) appears next to new/updated content.
Section 18005 of the CARES Act requires school districts that receive Elementary and Secondary School Emergency Relief (ESSER) funds to provide equitable services to local nonpublic schools. The following guidance is intended to support implementation of CARES Act equitable services provisions in the context of ESSER funding.
The CARES Act specifically states that the provision of equitable services shall be provided in the same manner as provided under section 1117 of ESEA (i.e., Title I, Part A [Title I-A]). Despite the clear language of the CARES Act, on April 30, 2020, the U.S. Department of Education (USDE) issued non-binding, non-regulatory guidance that, in part, instructed school districts to base CARES Act equitable services reservations on the total number of students attending nonpublic schools within the school district, without respect to student poverty (i.e., Title I-A eligibility).
*The Pennsylvania Department of Education (PDE), the nonpartisan Council of Chief State School Officers, and members of Congress of both parties found this position to be inconsistent with the plain language of the CARES Act; the administration of 2019-20 Title I-A funds that serves as the basis of CARES Act ESSER allocations to both states and local education agencies; and the goal of ensuring that limited, one-time, emergency funding reaches our most vulnerable students, wherever they attend school. Accordingly, PDE advised school districts that the provision of equitable services to nonpublic schools under the CARES Act should be consistent with equitable services provided under Title I-A.
On July 1, 2020, USDE published an Interim Final Rule (IFR) that addressed several components of equitable services administration, including determination of proportional share for equitable services for CARES Act programs. Unlike USDE's earlier non-binding guidance, an IFR carries the force and effect of law; however, several efforts were taken to enjoin USDE from further implementation of the IFR, including multi-state litigation involving Pennsylvania and a separate lawsuit brought by Washington state.
*Between August 21 and August 26, 2020, two separate U.S. District Courts (Western District of Washington [August 21] and Northern District of California [August 26]) issued orders blocking USDE from further implementation or enforcement of the IFR. Both orders substantiated PDE's position that the CARES Act statute requires equitable services reservations based upon the number of low-income children attending nonpublic schools.
Finally, on September 4, 2020, in NAACP v. DeVos, the U.S. District Court for the District of Columbia issued an order vacating the IFR. Accordingly, the IFR is no longer in effect.
How are equitable services reservations calculated under the ESSER fund?
Local nonpublic equitable shares for ESSER are based on the 2018-19 enrollment of low-income students of nonpublic schools that participated in 2019-20 Title I-A programming. Estimated school district level equitable services reservations are available on the PDE CARES Act resource webpage.
*Should school districts adjust equitable services reservations in response to USDE's IFR?
No. Following the September 4, 2020 order by the U.S. District Court for the District of Columbia to vacate the IFR, USDE announced the IFR is no longer in effect. School districts are to maintain reservations based on proportionate share of the Title I-A (FY 2019) formula and the number of low-income children in participating nonpublic schools, whether the nonpublic school the children attend is located within or outside the district boundaries.
*May nonpublic schools that did not participate in equitable services programming in 2019 participate now under ESSER?
Yes. The CARES Act does not expressly exclude historically non-participating nonpublic schools from receiving equitable services programming. Accordingly, PDE advises school districts to be as inclusive as possible and to consult with all nonpublic schools that serve low income children in planning for equitable services, including nonpublic schools that declined Title I-A services for 2019-20.
What steps should a school district take if a local nonpublic school refuses to sign the equitable services affirmation form?
School districts must make timely and meaningful attempts at consultation and document such efforts, including the provision of the affirmation form. If an eligible nonpublic school will not sign the affirmation, the district may complete the ESSER subgrant application after compiling records that demonstrate that consultation has, or attempts at consultation have, occurred.
What steps should a school district take in planning for equitable services programming?
School districts may provide services directly or may contract with a public or private entity after following appropriate procurement procedures to deliver services. If the district is contracting for services, these activities must be outlined in the contract and invoicing will reflect specified activities. As part of procurement of services, districts must obtain a minimum of three quotes. If the district's equitable services share is $250,000 or more, a sealed bid or competitive Request for Proposal process is required.
School districts must administer and maintain control of ESSER funds for the services and assistance provided to nonpublic schools. If materials, equipment, or property are purchased for the nonpublic school, the district must retain ownership, properly tag purchases as property of the district, and conduct an annual inventory of such purchases.
Are the same allowable uses of ESSER funds applied to equitable services funds?
Yes. Under ESSER, spending by public schools and services provided to nonpublic schools are governed by the same allowability. For more information on allowable uses, read Secretary Rivera's May 4, 2020 communication.
Are nonpublic equitable services subject to reporting requirements?
Yes. USDE requests the following reporting components:
How ESSER funding recipients determined their most important education needs as a result of COVID-19;
The extent to which ESSER funding recipients used ESSER funds to promote remote learning; and
How the ESSER funding recipients assessed and addressed student learning gaps resulting from the disruption in educational services.
Letter to Assistant Secretary Brogan (PDE) (PDF)
Letter to Secretary DeVos (CCSSO) (PDF)
Interim Final Rule (U.S. Department of Education) (PDF)
Public comment by Secretary Rivera in response to IFR
Letter to Chief State School Officers from Secretary DeVos (PDF)