Budget & Tax, Education

State’s red tape for private schools may violate federal law

May 27, 2020

Ray Carter

The federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, which included $161 million for Oklahoma’s K-12 schools, requires public schools to coordinate with private schools on “equitable services funding” that can cover a host of costs.

But the Oklahoma State Department of Education (OSDE) and local public schools appear to be violating provisions of the federal law by imposing additional red tape upon private schools seeking equitable-services funding, based on federal guidance.

The dispute threatens to impede effective COVID-19 response across Oklahoma.

On its website, OSDE notes that the 2015 federal Every Student Succeeds Act (ESSA) “requires school districts to provide equitable services to non-public school students, teachers, and other education personnel in some of its major grant programs. While nonpublic schools cannot receive direct funding from these federal grant programs, their students and teachers may be eligible to receive benefits, services, and materials with federal grant resources.”

For many federal-grant programs, such “equitable service” funding at private schools is tied to specific student groups, such as the low-income or those with special needs. Federal funding is provided to private schools after consultation with the local traditional public school, referred to as a “local education agency” (LEA).

However, CARES Act funding is different.

An April 30, 2020 guidance document released by the U.S. Department of Education notes that “equitable service” funding for Title I grants for low-income students can be provided only to “low-achieving students who live in a participating Title I public school attendance area.”

But the document then specifically says that is not the case for CARES Act funding.

“The CARES Act programs have no such residency requirement for eligibility for services,” the U.S. Department of Education guidance states.

The document later restates that point several times, informing states that CARES Act programs “may serve all non-public school students and teachers without regard to family income, residency, or eligibility based on low achievement,” that CARES Act-funded equitable services can be provided “to any students and teachers in non-public schools,” and that local school districts must “provide equitable services under the CARES Act programs to students and teachers in all non-public schools” even if the private school has not previously participated in other federal programs.

The U.S. Department of Education guidance informs states that local districts are to determine private schools’ “proportional share” of CARES Act funding by simply using “enrollment data in non-public schools whose students and teachers will participate under the CARES Act programs compared to enrollment in public schools in the LEA to determine the proportional share. Under the CARES Act programs, services are available for all students—public and non-public—without regard to poverty, low achievement, or residence in a participating Title I public school attendance area.”

Not only are CARES Act funds not restricted to specific student groups, but the money can be used for a wide range of activities. The U.S. Department of Education document states that CARES Act funds can be used “to provide educational services to students in public and non-public schools in the LEA through a broad range of allowable activities.” The document says the “equitable service” funding for private schools can include payment for “purchasing supplies to sanitize and clean the facility” or “any activity authorized” by the Every Student Succeeds Act.

However, the Oklahoma State Department of Education does not appear to be abiding by the requirements of federal law as outlined by the U.S. Department of Education.

A letter on CARES Act equitable-service funding sent to school districts by the Oklahoma State Department of Education includes a sample form that requires private schools to provide “Total nonpublic school low-income student count as of October 1, 2019” as part of the process.

Subsequent communications sent to private schools by public schools have demanded that private schools document the number of students at those schools with incomes that qualify for “free and reduced lunch” programs in public schools, citing the state department’s directive.

In a statement, Oklahoma State Department of Education general counsel Brad Clark argues that the “plain reading of the law” requires equitable services only for low-income students at private schools.

However, he did not specify how the agency or public schools can allocate funds for things like COVID sanitation in a way that applies only to low-income students at a private school.

A department spokesperson also said the agency will not restrict the use of federal COVID funding at public schools to services provided only to low-income students, in contrast to the department’s restrictions upon private schools receiving federal CARES Act funding.

Clark dismissed federal guidance as “just that—guidance.” He pointed to other states, such as Mississippi, as examples where state departments are distributing CARES Act funding in a manner similar to Oklahoma.

However, Oklahoma’s actions are in opposition to other states that have chosen to follow federal guidance, such as Tennessee. Chalkbeat Tennessee reports that Tennessee’s chief districts and schools officer, Eve Carney, said that following the federal guidelines “is one of the assurances that we as a state sign and agree to in order to accept these funds.”

The Oklahoma State Department of Education’s stance on use of CARES Act funding could lead to legal challenges or even potential federal penalties.

In a May 22 letter to the head of the Council of Chief State School Officers, which has endorsed the same restrictive interpretation of federal law touted by the Oklahoma State Department of Education, U.S. Secretary of Education Betsy DeVos said the federal agency will be adopting a formal rule requiring equitable services for all students in public schools.

DeVos wrote that the membership of the Council of Chief State School Officers “fundamentally misunderstands the statutory text mandating equitable services.”

“The CARES Act is a special, pandemic-related appropriation to benefit all American students, teachers, and families,” DeVos wrote. “There is nothing in the Act suggesting Congress intended to discriminate between children based on public or non-public school attendance, as you seem to do. The virus affects everyone.”

Much federal CARES Act funding was aimed at providing relief to private-sector businesses and employees. DeVos said the same principle holds true for the education portion of that funding.

“Although I understand their reflex to share as little as possible with students and teachers outside of their control, I would remind states and LEAs that their non-public school peers have also been overwhelmed by COVID-19,” Devos said. “All students and teachers have had their learning disrupted. A growing list of non-public schools have announced they will not be able to re-open, and these school closures are concentrated in low-income and middle-class communities. I would encourage educators everywhere to be as concerned about those students and teachers as they are with those in public schools.”

She advised states to place disputed funds into an escrow account until a final resolution is reached.

“Please let your members know that, consistent with the law, they should be ensuring that local educational agencies (LEAs) are holding meaningful consultation with non-public school representatives. If they or their district superintendents insist on acting contrary to the Department’s stated position, they should, at minimum, put into an escrow account the difference between the amount generated by the proportional-student enrollment formula and the Title I, Part A formula,” DeVos wrote. “That way, non-public school students and teachers can begin to receive at least some of the equitable services to which they are entitled.”