UPDATED

U.S. Secretary of Education Betsy DeVos has made educational choice a priority during her tenure; her move last week to offer “microgrants” for parents using coronavirus emergency aid is one recent example. And her department just issued a new directive about that relief money that illustrates the extent to which she’s also focused specifically on private schools.

Under the Every Student Succeeds Act, children who are failing or a risk of failing, live in public school attendance areas with high concentrations of students from low-income families, and attend private schools, are entitled to receive what’s called “equitable services” from the local public school district. The local district and a private school can negotiate over what services will be provided and how they’ll be provided—but they’re paid for by the public school system.

These services, which are covered Title I and other ESSA programs, can be things like parent-training activities and professional development for educators teaching those private school students. More details from the U.S. Department of Education can be found here.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, which was signed into law in March and provides billions in aid to K-12 schools, says districts “shall provide equitable services in the same manner as provided under” ESSA’s Title I for educating disadvantaged students.

Late last week, the Education Department released guidance on equitable services for the CARES Act. This guidance, which amounts to the department’s interpretation of the law, says that when a school district sets aside CARES Act money for equitable services, “All students and teachers in a non-public school are eligible to receive equitable services under the CARES Act programs.”

Why? The new guidance notes that unlike Title I programs, CARES Act aid is “clearly available to all public school students” as well as their teachers. “For CARES Act services to be equitable in comparison to public school students and teachers,” the guidance continues, “it follows that the same principles must apply in providing equitable services to non-public school students and teachers.”

What could that interpretation mean in practical terms? Because the guidance says all students can receive equitable services and not just the student groups specified in ESSA, it could direct a lot more pandemic relief money to services for private school students. More on the potential financial impact for schools in a bit.

Notably, the guidance highlights several areas where, unlike what we highlighted above, providing equitable services under the CARES Act should work the same way it does under ESSA’s Title I, such as how funding for equitable services is determined. For-profit private schools, by the way, can’t participate in equitable services under the CARES Act, the guidance states.

(Governors and state education departments can set aside relatively small shares of CARES Act money for specific populations of students; the department says its new guidance for equitable services doesn’t apply to those set-asides.)

The Education Department’s guidance includes a basic chart for how this would work; in that chart, “GEER” is the governor’s CARES Act education fund, and “ESSER” is the CARES fund earmarked mostly for school districts:

Where could this have a sizeable impact? Think of a big city, for example, where there’s a school district with a large population of disadvantaged students, along with several private schools.

Private schools aren’t required to participate in equitable services. But this guidance could make negotiating for equitable services using CARES money a lot more interesting to private schools.

Under equitable services, districts don’t simply send cash to private schools: It’s about services, not strictly dollars. But money is fungible, and the potential for expanded equitable services from school districts could lead private schools to change how they allocate their resources. So if you think DeVos’ guidance could help private schools that are struggling during the coronavirus economic slide, you’re probably not alone.

‘Private Schools Have Been Hit Hard’

We asked Michael Schluttloffel, the executive director of the Council for American Private Education, about this guidance and what it could mean for private schools.

“Private schools have been hit hard by the coronavirus pandemic, as they must rely upon tuition and philanthropy in order to survive,” Schutlloffel wrote in an email. “With millions of Americans losing their jobs and the economy plunging into recession, the continued existence of many private schools is in question.” Of the 5 million students in private schools, he said, “many are low income.”

Schuttloffel noted that if private schools have to shut their doors, “untold numbers” of private school students would suddenly show up at public schools at the same time that public schools are seeking their own assistance to help them weather the slumping economy.

“It stands to reason that in a time of crisis, this policy would be reaffirmed so that private schools can continue to educate their students and provide a safe environment for all who enter their doors,” Schluttloffel wrote.

The Education Department stressed that the provision of the law in question provides services for private school students and not cash payments. The department did not respond to questions about the reasoning behind key aspects of the guidance, or whether the guidance is intended in part to help private schools.

Some say the guidance distorts the purpose of equitable services in general. “It’s not a program to provide funding for the rich kid in the private school,” said Noelle Ellerson Ng, the associate executive director of AASA, the School Administrators Association. “It’s a misallocation of federal dollars.”

Since districts’ share of CARES Act aid is based on their enrollment of disadvantaged kids used for their share of Title I aid, it doesn’t make sense, critics argue, to force school districts to turn around and set aside money for equitable services for all private school students. Ng added that she’s still waiting for the department to put out guidance on other key issues, such as the extent to which states must maintain current K-12 spending in order to tap CARES money.

Rep. Rosa DeLauro, D-Conn., the chairman of the House subcommittee that oversees the education department’s budget, said the CARES Act clearly intends equitable services to focus on “low-income student populations” and not all students attending private schools. “Secretary DeVos appears to be exploiting emergency relief legislation in order to advance her political agenda,” DeLauro said in a statement about the new guidance. “The Trump administration cannot pick and choose which parts of the CARES Act they agree with to implement—the Secretary needs to implement the law as it was written.”

There’s a certain logic to what the department is proposing, because the pandemic is having a broad, negative affect on all schools and students, said Julia Martin, the legislative director for Brustein and Manasevit, an education-focused law firm. But ultimately, the guidance runs counter to what Congress intended when it passed the CARES Act, she said.

“The people who are best insulated from the pandemic are white-collar people who send their kids to private schools,” she said. “I think there are more arguments against it than in favor of it.”

A Louisiana analysis of the guidance’s potential impact on the state found that it could result in a $22.9 million increase, or a 267 percent rise, in the amount of money 69 school districts would have to reserve for equitable services for private schools. That represents roughly 10 percent of the state’s CARES money that is earmarked for school districts.

For a little context, recent data from the National Center for Education Statistics found that Louisiana had 1.6 percent of the nation’s private schools, and 2.6 percent of the nation’s private school student enrollment.

And the Council of Chief State School Officers wrote to DeVos Tuesday to criticize the move—in the letter, CCSSO Executive Director Carissa Moffat Miller told the education secretary that the guidance could significantly harm the vulnerable students who were intended to benefit the most from the critical federal COVID-19 education relief funds.”

Miller asked DeVos to “clarify” the guidance by advising districts to set aside the same share of CARES aid for equitable services as they previously did under Title I; however, that clarification would essentially overturn the key point in the guidance. Other education groups, including the two national teachers’ unions, sent a similar letter to DeVos on Tuesday as well.

Remember that this new document from the feds is guidance. The guidance doesn’t constitute regulations and it doesn’t have the force of law. And it doesn’t impact equitable services under ESSA. Yet as with any form of federal guidance, many districts might not want to run afoul of the department’s interpretation of the law.

Private schools have played an interesting role in federal coronavirus emergency relief:

• Some private schools sought and received money through the Paycheck Protection Program that distributes loans—which can convert to grants under certain circumstances—intended help qualifying small businesses and nonprofit organizations retain staff during economic turmoil caused by the pandemic. When news outlets reported that well-heeled private schools had obtained this aid, they were scolded U.S. Treasury Secretary Steve Mnuchin, who said they should return the money. Mnuchin’s children, as it happens, attend a private school that got a PPP loan.
• On April 26, we noted that in its application for state education agencies to seek CARES Act money, the department emphasized equitable services a few times. In retrospect, perhaps the Education Department was telegraphing additional forthcoming guidance on the issue.

In 2018, DeVos eased restrictions on contractors with religious affiliations providing equitable services. The secretary said those restrictions ran counter to the Supreme Court’s 2017 ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, which found that a Missouri program that denied a church the opportunity to apply for a grant for playground resurfacing was unconstitutional.

Also in 2018, DeVos change the department’s organizational chart so that its office of nonpublic education would report directly to her office.

Photo: Secretary of Education Betsy DeVos walks in with Rep. Tom Cole, R-Okla., right, to testify before a House committee hearing. (Pablo Martinez Monsivais/AP-File)