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Guidance on Calculating and Administering Equitable Shares Reservations

Pursuant to the Coronavirus Aid, Relief, and Economic Security (CARES) Act Elementary and Secondary Emergency Relief (ESSER) Fund

Published May 21, 2020; updated July 1, 2020 to reflect USDE Interim Final Rule – 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, instructs 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 serve 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 schools 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 and a school district's equitable services share should be based upon the number of low-income children in each participating nonpublic school in the district.

*On July 1, 2020, USDE published an Interim Final Rule (IFR) that addresses 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, the IFR carries the force and effect of law. While PDE continues to evaluate the IFR, and while it continues to believe that USDE's instructions are inconsistent with CARES Act requirements, PDE is updating its guidance to protect school districts in the event USDE's IFR is finalized and survives legal challenges. Importantly, the IFR is open for public comment for 30 days beginning July 1, 2020. Consistent with PDE's May 4 communication to USDE, PDE will submit comment in opposition to the IFR and urges stakeholders to provide comment, as well. To submit comments, visit

*How are equitable services reservations calculated under the ESSER fund?

PDE has advised that local nonpublic equitable shares for ESSER reflect 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 Pennsylvania Department of Education's (PDE) CARES Act resource webpage.

However, on July 1, 2020, the U.S. Department of Education issued an IFR, outlining two allowable methodologies:

Option 1: A district uses the entirety of its ESSER funding to exclusively serve students and teachers in participating Title I schools. In this instance, the proportional share for equitable services would be determined:

  • Using the proportional share of Title I-A funds calculated for equitable services in the 2019-2020 school year (as required under ESEA section 1117(a)(4)(A)); or
  • Reflecting a new count of low-income students. In this case, the district would count the number of low-income students, aged 5-17, who attend each non-public school in the district that chooses to participate in the CARES Act programs compared to the total number of low-income children, aged 5-17, in both public Title I schools and participating non-public schools in the district.

Importantly, Option 1 triggers Supplement Not Supplant requirements under Section 1118(b) of ESEA.  Any district that chooses Option 1 may not divert state or local funds from participating Title I schools that are served with ESSER funds.

Option 2: Districts not choosing Option 1 (i.e., districts using any ESSER funds in any non-Title I schools or for districtwide activities) would calculate proportional share based on total enrollment of all participating non-public schools in the district, compared to the total enrollment in both public and participating nonpublic schools in the district, regardless of the student's poverty level.

Option 2 mirrors USDE's April 30 guidance.

*Should school districts adjust equitable services reservations in response to USDE's IFR?

PDE is actively monitoring efforts to pause or nullify the IFR.  In the meantime, districts that cannot implement or choose not to implement IFR Option 1 should calculate the difference between: 1) equitable services based on Title I-A; and 2) an amount associated with total enrollment of all participating non-public schools in the district, compared to the total enrollment in both public and participating nonpublic schools in the district, regardless of the student's poverty level, and hold this amount in reserve.

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 in the district 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 for 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 Response 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, see 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.


  1. Letter to Assistant Secretary Brogan (PDE):
  2. Letter to Secretary DeVos (CCSSO):
  3. Interim Final Rule (U.S. Department of Education):