Federal Legislative Report 116-14

Delivered via email: May 18, 2020


The U.S. Department of Education (USDE) recently released non-binding guidance that requires education funds distributed from the Coronavirus Aid, Relief, and Economic Security (CARES) Act to be shared with private schools under a provision, called "equitable services requirements," in federal law that requires local education agencies (LEAs) that receive certain funds to provide equitable services with those funds to students and teachers in non-public schools in their jurisdiction. However, there is significant concern because the guidance changes how the funds are calculated to meet that requirement from using the number of students at or below poverty level served to the total enrollment regardless of income, which will significantly increase funds required to be allocated to services for non-public schools.

The "equitable services requirements" currently apply to some provisions (specifically, Title I) in the Elementary and Secondary Education Act (ESEA), the latest version of which is known as the Every Student Succeeds Act (ESSA). According to the guidance, the LEA must make a "good faith effort" to contact officials in all non-public schools in their jurisdiction and notify them of the opportunity for their students and teachers to obtain equitable services. LEA's are not to send funds to non-public schools, but must make certain opportunities available for non-public school students and teachers to participate in if so desired.

Since the guidance was released, there has been an intense push for Secretary DeVos to reverse the guidance and/or for Congress to clarify in the next stimulus package that this guidance incorrectly changes how this allocation gets calculated. This is especially important since the CARES Act funds, specifically the Elementary and Secondary School Emergency Relief (ESSER) funds, are allocated to states and LEAs based on their respective share of Fiscal Year 2019 Title I dollars, which means the funding directed by ESSER is based on the number of low-income students, not total enrollments.

The USDE has released separate additional guidance on spending ESSER funds.


On Friday, the House voted to pass a version of the next stimulus package supported by Democrats. The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, introduced on Tuesday, calls for $3 trillion in additional funding focused on numerous aspects related to the COVID-19 response. It includes $100.15 billion for education, $90 billion of which would go into a State Fiscal Stabilization Fund for grants to states to support statewide and local funding for elementary and secondary schools and public post-secondary institutions. $58 billion of that would go towards K-12 education and would flow through the states to be distributed to local school districts based on the Title I formula. Higher education and some administrative costs would receive the balance of the funding.

The bill also authorizes $5 billion in funding for the E-Rate program to help with the homework gap, but only appropriates $1.5 billion for the program. It is unclear why this distinction was made between the authorization and the actual appropriated funding. The appropriated funding is far below the $4 billion figure included in the Senate's bipartisan legislation addressing the homework gap, and the $2 billion figure included in the House's bipartisan legislation addressing the same.

The bill additionally addresses the non-binding "equitable services requirements" guidance issue, referenced above, concerning how the non-public schools share is calculated for CARES Act funding. It amends the CARES Act by inserting language that states funds are only for "children identified under section 1115(c) of the ESEA in the school district served by a local educational agency who are enrolled in private elementary schools and secondary schools.'' This move would shift the calculation back to one based on Title I eligibility rather than total enrollment regardless of income. It also seeks to prevent the secretary from making any future changes in allocation.

Two other provisions affecting education included in the bill are $3 billion for school meal providers and the U.S. Department of Agriculture's (USDA) Child and Adult Care Food Program, and a doubling of the deduction for certain unreimbursed out-of-pocket expenses for elementary and secondary school teachers from $250 to $500.

Focus regarding a fourth stimulus package now turns to the U.S. Senate where Senate Majority Leader Mitch McConnell (R-KY) has called for a slower process, arguing that the CARES Act should be allowed to work before Congress takes additional action. As a result, it is not expected that Senate leaders will release language for their version of a fourth stimulus package anytime soon.


On May 6, the USDE published the final Title IX rule, which will take effect on August 14, 2020. Among the many changes adopted by the agency, the rule defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex. It requires elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment. That would represent a change from rescinded guidance developed by the President Obama Administration that made K-12 schools responsible for incidents they "reasonably should" have known about. Under the new rule, elementary and secondary schools are not required to hold hearings in response to complaints that they receive from students.

According to U.S. Secretary of Education Betsy DeVos, the new rule "bolsters the rights of the accused, reduces legal liabilities for schools and colleges, and narrows the scope of cases schools will be required to investigate." Specifically, she points out that the new rule "adds dating violence and stalking to the definition of sexual harassment. But, it otherwise offers a narrow definition of harassment, requiring that it be severe and pervasive, as well as objectively offensive." She adds that the new rule "recognizes we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence, and due process." 

Women's rights groups have come out strongly opposed to the new rule stating it would allow assailants and schools to escape responsibility, discourage victims from coming forward, and make educational environments less safe for women. Lawsuits have been filed attempting to challenge enforcement of the changes and are pending.


On Friday, the USDA announced the extension of three nutrition waivers until August 31, 2020. The waivers include:
  • Non-Congregate Feeding: allows meals to be served to children outside of the normally required group setting to support social distancing.
  • Parent Pickup: allows parents and/or guardians to pick up meals and bring them home to their children.
  • Meal Times: waives the requirements that meals be served at certain standard times to allow for grab-n-go options. This also allows for multiple days-worth of meals to be provided at once.
Read more about the waivers in the USDA press release.


The Institute of Education Sciences (IES) will award grants, under the Education Research and Special Education Research Grant Program, to support "national leadership in expanding knowledge and understanding of: (1) developmental and school readiness outcomes for infants and toddlers with or at risk for a disability; (2) education outcomes for all learners from early childhood education through postsecondary and adult education; and (3) employment and wage outcomes when relevant (such as for those engaged in career and technical, postsecondary, or adult education)." The announcement covers eight research competitions through two of the IES centers.
  • IES National Center for Education Research: Four competitions focus on education research, education research training, education research and development centers, and systematic replication in education.
  • IES National Center for Special Education Research: Four competitions focus on special education research, special education research training, National Assessment of Educational Progress (NAEP) process data, and systematic replication in special education.
The estimated range of awards varies according to the specific competition. Applications for all competitions are due August 20, 2020, and further information is available at the Federal Register.

The USDE announced a new $3 million grant competition for school districts to support student-centered funding programs. The competition, authorized by ESSA, will allow school districts to combine eligible federal funds with state and local funds in order to allocate resources based on students' individual needs.
This Federal Legislative Report was written with assistance from the National School Boards Association.