Letter to The Honorable Betsy DeVos, U.S. Department of Education - Tester, Casey to Betsy Devos: Scrap Distorted Guidance and Get Emergency Funding to K-12 Schools without Delay
Letter
Dear Secretary DeVos:
As the novel coronavirus (Covid-19) pandemic continues to spread across our Nation, our
education system is facing unprecedented disruption. During this time, it is critical that we
provide school districts with resources as quickly as possible, and that we target these funds to
districts with the highest need, which is what the Coronavirus Aid, Relief, and Economic
Security (CARES) Act sought to do. Accordingly, we are writing to express our strong
opposition to the interim final rule published in the federal register on July 1, 2020. This interim
final rule contradicts the plain language of the CARES Act, contradicts congressional intent, and
has caused unnecessary delays in getting emergency education funds to school districts. We
respectfully urge you to withdraw this rule.
The CARES Act included $30.750 billion for an Education Stabilization Fund for states, school
districts, and institutions of higher education to address disruptions caused by the pandemic. Of
this funding, approximately $13.5 billion was allocated to states for coronavirus-response
activities in elementary and secondary schools. Section 18005(a) of the CARES Act directs
school districts to provide assistance to certain students attending non-public schools consistent
with Title I of the Elementary and Secondary Education Act (ESEA). The Department suggests
the interim final rule is needed to clarify ambiguity in Section 18005(a). However, Section
18005(a)'s plain meaning is clear and unambiguous.
Section 18005(a) states "a local educational agency receiving funds under sections 18002 or
18003 of this title shall provide equitable services in the same manner as provided under section
1117 of the ESEA of 1965 to students and teachers in non-public schools..."1 ESEA section 1117
states that "expenditures for educational services and other benefits to eligible private school
children shall be equal to the proportion of funds allocated to participating school attendance
areas based on the number of children from low-income families who attend private schools"
within the school district. A plain reading of the CARES Act in this matter could not be
clearer--Congress directed school districts to calculate equitable services in the same manner as
provided for under Section 1117--based on private schools' enrollment of low-income students.
1 Public Law No: 116-136
2
The interim final rule would result in allocations being based on the total number of students
enrolled in non-public schools in the school district. This rule disregards Congress' clear
mandate that allocations be based on the number of low-income students attending non-public
schools in the school district. This is not the "same manner as" equitable services are provided
under Section 1117 and therefore is inconsistent with the plain language of the CARES Act.
Direction to provide funds according to section 1117 was intentional. Indeed, Congress had
several models of equitable services to choose from when crafting the CARES Act. It could
have directed school districts to provide equitable services consistent with Section 8501 of
ESEA, which directs local educational agencies (LEAs) to reserve funds for equitable services
based on the number of participating private school students. Instead, Congress deliberately and
clearly directed that equitable services be provided in the same manner as under Section 1117,
which is based on poverty. The interim final rule not only misinterprets the CARES Act
language, but it also contradicts well-established interpretations of equitable services under
section 1117 by the Department as recently as October 2019.2
The interim final rule suggests that the words "in the same manner" are facially ambiguous and
therefore necessitate the Department's regulation. While we contend the ordinary meaning of
this provision is clear, even if the Department's contention were true, it does not follow that the
correct interpretation would be to simply omit certain procedural requirements.
The interim final rule provides that LEAs may choose to calculate the equitable services share
based on poverty, but only if they limit CARES Act funds to public school students in Title I
schools. This rule is not only contrary to Congressional intent, but is beyond the statutory
authority that the law gives to the Secretary. The Department has justified this departure from the
law using flawed reasoning suggesting that that because funds from the CARES Act can be used
for all public school students regardless of need, equitable services funds should be allocated to
private school students regardless of need. Though CARES Act funds can be used for all public
school students, the bulk of funds are allocated based on the prior fiscal year Title I allocations,
which directs money to school districts based on poverty. School districts that receive funds can
use those funds to benefit any student, but this is not relevant in terms of how the funds are
allocated. Just as funds for school districts are allocated based on poverty, funds to provide
services for students in private schools should be allocated based on poverty. Equitable services
is about how funds are generated, not how those funds are spent.
Though all communities are affected by Covid-19, they are not all affected equally. Low-income
children have far more challenges accessing online education, nutrition, and health care.
According to the Pew Research Center, about 29 percent of adults with household incomes
below $30,000 do not own a smartphone, more than 44 percent do not have broadband services,
about 46 percent do not have a traditional computer, and a majority do not own a tablet, while
nearly all adults in households earning $100,000 or more have access to all of these
technologies.3 While all schools have faced disruptions, school districts serving higher numbers
of low-income students have had to not only transition academic services, but also ensure
children have access to school meals and necessary technology. As federal funds are allocated, it
is critical that they be targeted to school districts serving students and families with the greatest
need.
2 https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-services-guidance-100419.pdf
3 https://www.pewresearch.org/fact-tank/2019/05/07/digital-divide-persists-even-as-lower-incomeamericans-make-gains-in-tech-adoption/
3
Finally, the CARES Act sought to provide emergency federal appropriations to address
immediate education needs. School districts throughout our Nation whose academic years were
abruptly disrupted sought to quickly adjust in order to continue meeting the needs of students.
This interim final rule is creating confusion and compounding uncertainty at a time when schools
are making decisions about modes of instruction and reopening in the fall. Getting funds to
school districts quickly and efficiently should be the priority.
As members of the United States Senate who helped to craft and voted for the CARES Act, we
strongly oppose this interim final rule and urge you to rescind it.
Sincerely,
Robert P. Casey, Jr.
United States Senator
Jon Tester
United States Senator
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