Federal Legislative Report 116-18

Delivered via email: August 6, 2020


As posted in Federal Legislative Report (FLR) 116-17, legislation passed both chambers that would significantly streamline the Unemployment Insurance process related to the reimbursement provision provided in the CARES Act. The President signed the legislation into law this week on August 3. The U.S. Department of Labor is finalizing guidance to states for the administration of the new law.


The House passed its version of a fourth stimulus package back in May, and information about it is in FLR 116-14. It had been hoped that the Senate would vote on its version of a fourth stimulus package before the August recess, but Senators just released a draft of their version last week on July 27.
The Senate Republicans’ plan has a total funding level of approximately $1 trillion. It addresses public education in a variety of ways. The proposed legislation includes approximately $70 billion for K-12 education. However, two-thirds of that funding is only available to districts with approved re-opening plans that must be submitted to and approved by the governor. Plans that have more than half of their students returning for in-person instruction would be automatically approved. Plans with a smaller percentage of their students returning for in-person instruction would receive funding on a proportionate basis. Republican leaders are referring to the comprehensive legislative section focused on appropriations as the HEALS Act (Health, Economic Assistance, Liability Protection, and Schools).
The legislation in its current form has significant opposition but it will be used as a starting point for negotiations with the Democrats. It is expected it will change significantly as it moves through the legislative process. The following is a summary of the major legislative sections impacting public schools:
Education Stabilization Fund
The total legislative package contains $105 billion for education (K-12 and higher education combined) overall. The funds are available through September 30, 2021, and some are allocated as follows:
  • $2 billion for governors for distribution for education purposes.  The funds will be distributed with 60% going by population age 5-24 and 40% based on the Title I eligible population. Allowable uses in the proposal are similar to the ones contained in the CARES Act. The funds must be spent within six months and may be used to provide emergency support through grants to local education agencies (LEAs) that the state deems to have been most significantly impacted by COVID-19. Funds may also be used to provide emergency support to institutions of higher education.
  • $69.6 billion for K-12 is allocated based on the proportion of the state's Title I funding, with 90% sub-allocated to LEAs by Title I proportion, one-third must be passed to LEAs "not less than" 15 days after the Secretary provides the funds to the state education agency (SEA), two-thirds are awarded only after the LEA submits a school reopening plan to the governor who then must approve the plan. 
    • LEA plans that provide "in-person instruction for at least 50 percent of its students where the students physically attend school no less than 50 percent of each school-week, as it was defined by the local educational agency prior to the coronavirus emergency, shall have its plan automatically approved."  An LEA that provides “in-person instruction to at least some students where the students physically attend school in-person but does not satisfy the 50/50 requirements shall have its allocation reduced on a pro rata basis as determined by the governor." If there is no in person schooling the district will not receive a share of the two-thirds set aside.
    • Allowable uses for the funds are much narrower than the CARES Act. Set asides for low income students at private schools are better spelled out in this proposal, which appears to repudiate U.S. Secretary of Education Betsy DeVos' interpretation of the CARES Act's equitable services provision.The draft does not, however, include language reversing the U.S. Department of Education (USDE) interpretation and final interim rule of that provision.
  • Maintenance of Effort - requires states to maintain their funding for education at least at the same proportional levels as in 2019 as a condition for receiving Education Stabilization Fund grants.
Private Education Provisions
The HEALS Act includes provisions for the school choice program that Secretary DeVos has proposed for Education Freedom Scholarships. These provisions would authorize a one-time emergency appropriation for scholarship-granting organizations in each state. Such organizations would provide families with "direct educational assistance, including private school tuition and home schooling expenses." While the bill authorizes the creation of these scholarships, it does not fund them. Please ask our Senators and House members to oppose the inclusion of this provision in the final stimulus package so as not to divert public funds needed by public schools to private schools.
The legislation includes schools in its liability coverage. State tort liability laws are essentially eliminated under the legislation for issues arising from COVID-19 and replaced with a federal cause of action in which the plaintiff must prove their case through a clear and convincing evidence standard which is a higher standard than the normal one. Plaintiffs will need to prove that the defendant was not making reasonable efforts to comply with applicable government standards and /or guidance and was engaged in gross negligence or willful misconduct. Please ask our Senators and House members to push for the inclusion of this provision in the final stimulus package.
Homework Gap
The legislation does not address the homework gap leaving this critical issue students are facing unresolved in this current proposal. Addressing the digital divide in education is an allowable use under the funds but this will create a competitive environment with many other important programs.


Senators Roger Wicker (R-MS) and Debbie Stabenow (D-MI) are the primary sponsors of the Lifting Our Communities through Advance Liquidity (LOCAL) Infrastructure Act (S. 4129), bipartisan legislation that would reinstate advance refunding into the federal tax code. Advance refunding helps school districts and other units of government secure lower interest rates for municipal bonds, thereby yielding a savings to taxpayers.
Please ask our Senators to be co-sponsors and push for its passage in the Senate, and House members to push for passage of this legislation when it comes over, and/or the inclusion of this language in the next stimulus package.


On July 31, the House passed a $1.3 trillion “minibus” spending package for FY21.  The legislation passed on a party line vote of 217-197.  This bill combines six different spending measures, including $73.5 billion for the USDE, into a single legislative vehicle. The $73.5 billion for the USDE is an increase of $716 million for FY20 enacted levels. 
Progress on appropriations in the Senate is much further behind and comparable legislation has yet to be introduced in the Senate.  It remains unclear if lawmakers in that chamber will pass their own appropriations legislation prior to the beginning of the next federal fiscal year (beginning October 1) or if lawmakers will pursue a Continuing Resolution to extend current funding for a shorter period of time.


The USDE announced last week a request for public comment on planned data collections required, in part, by the CARES Act. As part of the Elementary and Secondary School Relief (ESSER) Fund authorized by the CARES Act, USDE is required to collect information from states and school districts related to how they distributed these funds and how the funding was used. This data would be published on an annual basis beginning on January 29, 2021. The Department is seeking comment on the feasibility of some elements of this data collection and other areas for potential improvement. Comments are due back to the Department by September 28, 2020. More information on this request can be found on the Federal Register website.


The House left for their August recess on July 31, although they are expected to come back next week if there is a vote.  The Senate was scheduled to leave for recess tomorrow (August 7), but it is unlikely they will do that now and will most likely delay their recess to continue working on the fourth stimulus package.


On July 23, the Centers for Disease Control and Prevention (CDC) released updated guidelines strongly encouraging students to physically return to school this fall.  The guidance argues that K-12 students are "less likely" to contract COVID-19 than adults and stresses that attending school, in-person, is important for students' social and emotional learning. The document noted that schools offer other important resources for students and families such as nutritional programs, counseling, special education services, and after-school programs that often benefit low-income and other disadvantaged student populations the most. Ultimately the document contends that the risks from the pandemic are lower than the associated health and academic risks facing students if they were to continue to stay home from school.


USDE published notice on a discretionary grant program for the Office of Elementary and Secondary Education: "Education Innovation and Research (EIR) Program - Early-Phase Grants" - The EIR program was established under the Elementary and Secondary Education Act (ESEA) and provides funding to "create, develop, implement, replicate, or take to scale entrepreneurial, evidence-based, field initiated innovations to improve student achievement and attainment for high-need students; and rigorously evaluate such innovations."  For FY20, the Department will be awarding two types of grants: "early-phase" and "mid-phase" grants.  The goal of early-phase grants is to determine in what ways new practices can improve student achievement and attainment for high need students. The estimated available funds for both the early-phase and mid-phase grants total $178,600,000. Applications are due by September 10, 2020, and further information is available on the Federal Register website.
This Federal Legislative Report was written with assistance from the National School Boards Association.