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Private School Equitability Requirements In a March 5, 2009 letter to the Council for American Private Education (CAPE), U.S. Secretary of Education Arne Duncan wrote the following: “The enacted ARRA contains a number of provisions that will positively impact private school students and teachers. The law includes $10 billion for formula grants to local educational agencies under Title I, Part A of the Elementary and Secondary Education Act (ESEA); $11 .7 billion in grants under Part B of the Individuals with Disabilities Education Act (IDEA); and $650 million for the Enhancing Education through Technology program under Title II, Part D of the ESEA. These programs are governed by the equitable services provisions of the ESEA and IDEA and require the equitable participation of eligible private school students and, in some programs, their teachers.” A copy of Secretary Duncan's letter can be accessed here.
USDE Initial Guidelines The US Department of Education has released four documents intended to help states and local public school districts understand the distribution and appropriate uses of funds appropriated under provisions of the American Recovery and Reinvestment Act of 2009 (popularly known as the Economic Stimulus Package). The documents consist of: ARRA Education Component Overview This document explains the principles that underpin the education component of the stimulus package, categorizes the various categories of funding to be made available, and provides a schedule for their distribution. The document notes that "the overall goals of the ARRA are to stimulate the economy in the short term and invest in education and other essential public services to ensure the long-term economic health of our nation." The allocation of ARRA funds should be informed by the following principles:
The purpose of State Fiscal Stabilization Fund (SFSF) allocations is to "help stabilize state and local government budgets in order to minimize and avoid reductions in education and other essential public services. The program will help ensure that local educational agencies (LEAs) and publicly funded institutions of higher education (IHEs) have the resources to avert cuts and retain teachers and professors. The program may also help support the modernization, renovation, and repair of school and college facilities. In addition, the law provides governors with significant resources to support education (including school modernization renovation, and repair), public safety, and other government services." The document notes that, "States must use 81.8 percent of SFSF funds for the support of public elementary, secondary, and higher education, and, as applicable, early childhood education programs and services." Of these funds, and "subject to limited restrictions in ARRA as defined in further guidance LEAs may use their share of 81.8% of the SFSF education funds for any activity authorized under the Elementary and Secondary Education Act of 1965 (ESEA) (which includes the modernization, renovation, or repair of public school facilities), the Individuals with Disabilities Education Act (IDEA), the Adult Education and Family Literacy Act (Adult Education Act), or the Carl D. Perkins Career and Technical Education Act of 2006 (Perkins Act)." The remaining 18.2 percent of SFSF funds are to be used "for education (school modernization, renovation, and repair), public safety, and other government services. This may include assistance for early learning, elementary and secondary education, and IHEs. In addition, states may use these funds for modernization, renovation, or repair of public school and public or private college facilities." Update (April 1, 2009) The U.S. Department of Education has issued the following guidance: III-D-15. Is an LEA required to provide equitable services for private school students and teachers with Education Stabilization funds?
No. There is no requirement in the ARRA that an LEA provide equitable services for private school students with Education Stabilization funds, even if those funds are used for an activity authorized by a program that otherwise requires equitable services. However, an LEA may provide services for private school students and teachers to the extent that the activities are authorized by the ESEA, the IDEA, the AEFLA, or the Perkins Act.
IV-6. May a State use Government Services funds to construct, modernize, renovate, or repair a private school facility?
Yes. A State may use these funds to construct, modernize, renovate, or repair a private school facility. However, the limitations referenced in Question IV-3 apply to such uses of funds. For example, a State is prohibited from using Government Services funds for construction, modernization, renovation, or repair of facilities (a) that are used for sectarian instruction or religious worship; or (b) in which a substantial portion of the functions of the facilities are subsumed in a religious mission. (See generally Section 14004(c) of the ARRA.)
III-D-2. What are the statutory prohibitions on an LEA’s use of Education Stabilization funds?
Section 14003 of the ARRA prohibits an LEA from using Education Stabilization funds for –
· Payment of maintenance costs;
· Stadiums or other facilities primarily used for athletic contests or exhibitions or other events for which admission is charged to the general public;
· Purchase or upgrade of vehicles;
· Improvement of stand-alone facilities whose purpose is not the education of children, including central office administration or operations or
logistical support facilities; or
· School modernization, renovation, or repair that is inconsistent with State law.
The document contains the following paragraph: "LEAs may use their Title I, Part A recovery funds consistent with the Title I, Part A statutory and regulatory requirements, including the requirements to provide equitable services to eligible private school students. Uses should be aligned with the core goals of ARRA to save and create jobs and to advance reforms." CAPSO may seek a revision of this language to remove the ambiguity introduced by the use of the word "may" in association with the provision of equitable services to eligible private school students.
Update (April 1, 2009) The U.S. Department of Education has issued the following guidance: D-6. Do the Title I, Part A requirements that an LEA provide equitable services to eligible private school children and their teachers and families apply to the Title I, Part A ARRA funds? Yes. As noted in D-1, all Title I requirements apply to the use of Title I, Part A ARRA funds, including those requiring equitable services for eligible private school children and their teachers and families. See ED’s guidance on this topic [available at http://www.ed.gov/programs/titleiparta/psguidance.doc]. Note that ED may not waive the statutory and regulatory requirements relating to providing equitable services to private school children. See section 9401(c)(5) of the ESEA.
Yes. Under section 1120(b) of the ESEA, an LEA must consult with private school officials during the design and development of the LEA’s Title I, Part A programs. That consultation must include meetings of LEA and private school officials and must occur before the LEA makes any decision that affects the opportunities of eligible private school children to participate in Title I, Part A programs.
Yes, to the same extent and under the same conditions as regular Title I, Part A funds are used for equitable services for eligible private school children.
The document includes the following proviso: "All IDEA recovery funds must be used consistently with the current IDEA, Part B statutory and regulatory requirements and applicable requirements in the General Education Provisions Act (GEPA) and the Education Department General Administrative Regulations (EDGAR)."Current IDEA, Part B statutory and regulatory requirements contain provisions governing the provision of services to children with special needs who are placed by their parents in private schools. These provisions should, therefore, be applicable to IDEA, Part B funds appropriated under ARRA.
Update (April 1, 2009) The U.S. Department of Education has issued the following guidance: F-1: How will the ARRA funds be included in the calculation for proportionate share of IDEA funds for services to parentally-placed private school children?
In calculating the proportionate share required under IDEA section 612(a)(10)(A)(i)(I), an LEA must first aggregate the FY 2009 funds received under the Grants to States regular and ARRA awards and apply the formula outlined in 34 CFR §300.133 to the aggregated amount. Similarly, for children aged 3-5, the proportionate share is based on the total FY 2009 funds received under the Preschool Grants regular and ARRA awards.
F-2: If an LEA has completed its consultation required under IDEA section 612(a)(10)(A)(iii), will the LEA have to conduct additional consultation because the IDEA ARRA funds will increase the amount available for equitable services to parentally-placed private school children?
Under section 612(a)(10)(A)(iii), timely and meaningful consultation must occur during the design and development of special education and related services. The consultation process must include discussions of “how the process will operate throughout the school year to ensure that parentally-placed children with disabilities identified through the child find process may meaningfully participate in special education and related services.” An LEA may be able to use the mechanisms developed for the ongoing consultation process to work with representatives of the private schools located in the area served by the LEA and representatives of parents of parentally-placed private school children with disabilities in determining how the proportionate share of IDEA ARRA funds will be expended. In any case, an LEA must ensure that it has engaged in consultation with the private school representatives and representatives of parents of parentally-placed private school children with disabilities about how the additional funds available for services for parentally-placed private school children with disabilities will be used.
F-3. May an LEA spend part of the proportionate share of the IDEA Part B ARRA funds on children with disabilities parentally-placed in private schools in school year 2009-2010 and part in school year 2010-2011?
Yes, subject to certain conditions. Under 34 CFR §300.133(a), each LEA is required to spend a minimum amount of its subgrants under Part B Grants to States and Preschool Grants programs on children with disabilities parentally-placed in private elementary and secondary schools. The ARRA provides a substantial increase in FY 2009 IDEA, Part B funds. As provided in 34 CFR §300.133(a)(3), if an LEA has not expended all of the proportionate share of its Part B subgrant by the end of the fiscal year for which Congress appropriated the funds, the LEA must obligate the remaining funds for special education and related services to children with disabilities parentally-placed in private schools during a carry-over period of one additional year. An LEA must consult with private school representatives and parents of parentally-placed private school students in designing and developing the special education and related services that the LEA will provide for parentally-placed private school children. (34 CFR §300.134) As part of this consultation, the LEA, private school representatives and parents of parentally-placed private school students must consider how the proportionate share of IDEA funds (including the regular and ARRA IDEA Part B funds) should be spent. One option for spending those funds would be to spend some in school year 2009-2010 and some in school year 2010-2011.
CAPSO will be working with officials at both the California Department of Education and U.S. Department of Education to obtain further clarification and guidance regarding ARRA funding.
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