By: Fred Jones

May 28, 2020

In the midst of the coronavirus global pandemic, public schools and the 51 million students who attend them are experiencing an additional series of local epidemics. Many students are trying to secure meals and access stable and reliable digital learning platforms. Some students must contend with instances of maltreatment from unhealthy home environments and without the safety of their public schools. Unfortunately, U.S. Secretary of Education Betsy DeVos is using the COVID-19 health crisis to push a political agenda to defund public schools by siphoning federal education relief dollars meant for public school districts and directing them to private schools.

More specifically, the Coronavirus Aid, Relief, and Economic Security (CARES) Act guidance, released on April 30th from the U.S. Department of Education (ED), instructs school districts who receive Elementary and Secondary School Emergency Relief (ESSER) funding under the CARES Act to set-aside funding to administer equitable services based on the proportionate share of all students enrolled in private schools, rather than the number of students from low-income families, as required by the Elementary and Secondary Education Act (ESEA). Based on the latest school enrollment data from the National Center for Education Statistics, the change in how equitable services funding is distributed could result in school districts sending a significant amount of their ESSER funding allocated for public schools to local private schools.

For example, private schools in Louisiana could see a 267 percent increase in funding based on the new guidance, with nonpublic schools in the East Baton Rouge Parish School System receiving an additional $3.7 million – a 425% increase.  Greenville County School District (GCSD), South Carolina’s largest school district, educates 76,000 students each year, and estimates that it would be required to give approximately $1.7 million of the $19.3 million in ESSER funding under the CARES Act’s equitable services guidance to private schools. In comparison, GCSD typically allocates $408,600 for equitable services for students from low-income families attending private schools. The redirection of funds encouraged by Secretary DeVos’ guidance allows private schools to receive funding at the expense of public schools.

Unfortunately, Secretary DeVos has ramped up her commitment to fund private schools by issuing a rule on the new equitable services policy. If adopted, this will force states to implement the new calculation, rather than it being a non-binding action as recommended in the Secretary’s guidance. It will be even harder for school districts to provide core services and supports such as hiring reading coaches and mental health professionals, implementing expanded learning time, or developing and carrying out personalized learning plans for low-income students.

Secretary DeVos’ ploy to redirect public school dollars to private schools during a global pandemic by asking states to include the total student population in a district’s calculation of its equitable services legal obligation, combined with her unilateral move to create school voucher-like microgrants using discretionary CARES Act funds, is a renewal of her failed attempt to expand a federal tax-credit scholarship. She is using her authority to misdirect funds in an effort to advance her personal interest of expanding school privatization, and is doing so at the expense of students who attend public schools.

Why states should ignore the Secretary’s equitable services guidance and reject the proposed rule

– Section 18005(a) of the CARES Act states that a school district receiving funds under ESSER “shall provide equitable services in the same manner as provided under section 1117 of [Title I of] the ESEA of 1965 to students and teachers in non-public schools.” ESEA explicitly says that the proportion of federal funds allocated to serving private school students shall be equal to the proportion of students from low-income families who attend private schools. DeVos ignores the directive outlined in the CARES Act to allocate equitable services funding based on a district’s percentage of low-income students, and in doing so, ignores congressional intent as well as established law under the Every Student Succeeds Act (ESSA).

– The CARES Act ESSER funding is distributed to states and school districts based on the proportional share of students from low-income families, not total student enrollment of public and non-public schools. To issue guidance and propose to mandate that all school districts provide a proportional share of CARES Act funding to private schools based on the school district’s total share of all public and nonpublic schools inherently puts public schools at a disadvantage. Public schools enroll a higher number and percentage of students from low-income families, and the changes in allocation would leave public schools less-equipped to use federal K-12 funds to serve students who live in poverty.

– Private schools have already successfully lobbied to receive federal Paycheck Protection Program (PPP) funds authorized in the CARES Act. These additional resources are not afforded to public schools. With this new equitable services guidance, private schools would be effectively double-dipping in ESSER as well as PPP funds, and would be receiving a dramatically greater amount of ESSER funds than intended under federal law.

– The Center on Budget and Policy Priorities (CBPP) now estimates a state budget shortfall of $765 billion over the next three years due to the coronavirus pandemic, and Southern states, in particular, will be tremendously impacted. For example, in Arkansas, likely the most heavily impacted state from a fiscal standpoint, FY2021 revenue shortfall is expected to be $1.7 billion, which represents roughly 80 percent of Governor Hutchinson’s proposed K-12 budget from earlier this year. Public schools will need all available resources to meet their constitutional responsibility to provide a free public education.

– There is bipartisan pushback against the guidance. Key Democratic congressional education leaders sent Secretary DeVos a letter expressing their serious concerns with the guidance. Senator Lamar Alexander (R-TN), Chairman of the Senate Health, Education, Labor and Pensions (HELP) committee, also believes the Secretary should revisit the guidance. It’s clear that if Congress wanted to allow private schools to receive more CARES Act funding, they would have explicitly written it into the law. The U.S. House of Representatives has taken steps to codify that equitable services distribution in any federal COVID-19 relief package should be consistent with ESSA. Even state leaders in Maine and Indiana have already publicly opposed DeVos’ guidance and instructed local superintendents to ignore the equitable services directive.

Secretary DeVos’ efforts to make a rule on this topic invites a process of accepting public comments.  While the public and state education leaders should provide official written comments opposing the equitable services rule, states can and should ignore the guidance in the meantime while no mandate is in place. If State Education Chiefs and local superintendents follow the guidance expressed by Secretary DeVos, hundreds of millions of dollars will be robbed from public schools and directed to private schools, diluting the share of resources remaining for public schools. We urge state leaders to ignore the guidance set forth by Secretary DeVos and oppose any future rule on the subject. Our public schools need every public resource available to address the academic and social needs stemming from the devastating coronavirus.

Fred Jones is SEF’s Director of Government Affairs and Public Policy.