Update on CARES Act:
The U.S. Department of Education takes decisive action to ensure states do not deny federal funds to private schools.
By: Libby Sobic
The U.S. Department of Education (ED) released an interim final rule on June 25 pertaining to the Coronavirus Aid, Relief and Economic Security (CARES) Act and how the federal funds should be allocated between public and private schools. This changes how the CARES Act funding must be allocated and will require states, like Wisconsin, to provide more funding to private schools.
Here are three things you should know:
- Recap: DPI has been ignoring the ED’s guidance on how to allocate the federal dollars between public and private schools.
Department of Public Instruction’s (DPI) plans to allocate the CARES Act funding to private schools based on the number of low-income private school students, rather than the entire population of private school students. In doing so, DPI has been ignoring guidance from the ED and will prevent millions of dollars from helping private school students.
A coalition of private school leaders recently sent a letter to Superintendent Carolyn Stanford Taylor about the DPI plan to allocate federal funding and urging DPI to follow the guidance from the ED.
DPI’s position was blindsiding for private schools because their guidance was released for schools in early June and the decision to limit the funds to low-income private school students was already incorporated. According to the coalition of 27 school leaders, “[this] decision was made without any input from private schools and we were not given the opportunity to ‘meaningfully consult’ about how the proportional shares of the CARES Act funding will be allocated.”
DPI has briefly responded to the letter when Jonas Zuckerman, director of DPI’s Title I and School Support Team, said “We are following the statute.” But his statement is an over-simplification of the federal law and did not address the issues raised by the coalition.
2. The interim rule will require states to allocate the funding in accordance with the ED’s guidance.
The allocation of the CARES Act funding has been a national debate centered around the guidance from the ED and Secretary DeVos. Secretary DeVos publicly indicated weeks ago that the ED was working on a rule to require states to follow ED’s interpretation of the CARES Act.
Wisconsin, and a handful of other states, had been ignoring the ED’s guidance since it was not legally binding. However, the ED’s final rule is legally binding and is effective as of July 1, 2020 (the date it was published in the Federal Register).
The rule addresses the major point of contention with respect to the operation of the CARES Act: determining the proportional share between public and private schools.
The rule gives school districts the option to use the funding for all of its students or to direct the CARES funding to serve only its public school students in Title I schools.
If a public school district wants to use CARES Act funding to serve all of its public school students, it must then also calculate the funds for equitable services for all private school students.
If the district decides to only use its funding on Title I public school students, then the district may limit the calculation to only low-income private school students or base the calculation off of the 2019–2020 Title I, Part A share.
This means that, at the very least, DPI must review its existing guidance and determine how to direct public school districts to consult with private schools about the funding allocation.
3. The final rule is a step in the right direction, but expect this to continue to be murky.
Given the controversy around the ED’s position, it is widely expected that the rule will be challenged in court. If DPI is unwilling to follow the issued rule, there may be a middle ground option.
Colorado, Illinois and Ohio have advised districts to calculate the funding based on the number of low-income students, but plan to set aside the difference in funding. This option allows most of the federal funding to reach public and private schools quickly while ensuring that the funding difference at stake can be allocated in the near future, once this issue is resolved.
For instance, this would require DPI to set aside at least $1.5 million, the estimated difference for the cost allocation based on low-income private school students versus total enrollment, while allocating the majority of the $55 million in CARES funding to Milwaukee Public Schools and private schools.
Of course, ideally DPI would just follow the ED’s rule and allocate the funding to benefit both private and public schools. If not, DPI should follow the example set by our neighbors in Illinois and set aside the funds. This is a win-win for everyone — the majority of the funding can be allocated to public and private schools while minimizing the risk of not following the interim rule until a judge (hopefully) upholds it.
Sobic is director and legal counsel of education policy at the Wisconsin Institute for Law & Liberty.
