ESEA Flexibility
Guidance on Equitable Participation
Updated May 11, 2012 -- The U.S. Department of Education has invited state education departments to request waivers from certain requirements of the Elementary and Secondary Education Act. Extensive guidance and background information concerning these waivers are available here.
To help religious and independent school officials work with states and school districts in securing services within the waivers for their students and teachers, CAPE provides the following excerpts from the guidance and from official correspondence with the U.S. Department of Education.
B-22. What are the responsibilities of an SEA or LEA for the provision of equitable services to private school children and teachers with respect to funds being transferred?
Each program covered by the transferability authority is subject to equitable participation requirements, which may not be waived (see ESEA section 9401(c)(5)). Before an SEA or LEA may transfer funds, it must engage in timely and meaningful consultation with appropriate private school officials (ESEA sections 6123(e)(2) and 9501). With respect to the transferred funds, the SEA or LEA must provide private school students and teachers equitable services under the program(s) to which, and from which, the funds are transferred, based on the total amount of funds available to each program after the transfer. (Source: Q. B-22, ESEA Flexibility FAQs, USDE, 10/3/11)
A-17. May the Secretary waive the requirements for an LEA to provide for the equitable participation of private school students and teachers?
No. Under ESEA section 9401(c)(5), the Secretary may not waive any statutory or regulatory requirement related to the equitable participation of private school students, teachers, and families. (Source: Q. A-17, ESEA Flexibility FAQs Addendum, USDE, 11/10/11)
B-10a. Are the Title I, Part A funds that an LEA would otherwise spend for choice-related transportation and supplemental educational services (SES) or for professional development in LEAs identified for improvement subject to the requirements to provide equitable services to eligible private school children, their teachers, and their families?
Yes, to the same extent and under the same conditions as regular Title I, Part A funds. In general, an LEA allocates its Title I, Part A funds in two ways: it allocates the majority of those funds to its Title I schools consistent with ESEA section 1113(c); and it reserves some funds off the top of its allocation under 34 C.F.R. § 200.77 for both required and permissible activities. An LEA’s responsibility to provide equitable services to eligible elementary and secondary private school children, their teachers, and their families depends on the nature of the services provided. Equitable services apply to funds an LEA allocates to its Title I schools under ESEA section 1113(c). They also apply to off-the-top reservations that provide district-wide services to Title I schools. However, they do not apply to reservations from which an LEA provides services to a subgroup of students—e.g., homeless students, neglected and delinquent students—or if an LEA focuses the reserved funds on a specific subset of low-performing schools—e.g., schools in restructuring—because public Title I school students as a whole do not benefit from those services either. Accordingly, with respect to Title I, Part A funds freed up from not needing to meet the 20 percent obligation or the set aside for professional development under ESEA flexibility, the responsibility to provide equitable services depends on how an LEA uses those funds. If, for example, the LEA allocates the funds under ESEA section 1113(c) to its Title I schools, it must also provide equitable services with the funds. Similarly, if the LEA uses the freed up funds for an off-the-top reservation to provide summer school or professional development to all its Title I schools, or all its Title I schools at a particular grade level, the requirement to provide equitable services would apply. On the other hand, if the LEA uses funds from an off-the-top reservation to implement interventions in its priority and/or focus schools, the equitable services requirement would not apply. (Source: Q. B-10a, ESEA Flexibility FAQs Addendum, USDE, 11/10/11)
B-10b. Must an LEA consult with private school officials prior to deciding how to use Title I, Part A funds that may be freed up if the LEA is no longer required to meet the requirements in ESEA section 1116?
Yes. Under ESEA section 1120(b), an LEA must consult with private school officials during the design and development of the LEA’s Title I, Part A programs. That consultation must include meetings of LEA and private school officials and must occur before the LEA makes any decision that affects the opportunity of eligible private school children to participate in Title I, Part A programs, including decisions regarding the use of funds freed up under ESEA section 1116. (Source: Q. B-10b, ESEA Flexibility FAQs Addendum, USDE, 11/10/11)
(The following item was added December 22, 2011.)
On October 6, 2011, CAPE asked officials at the U.S. Department of Education, “When an LEA transfers funds from one allowable ESEA program to another, is it free, after consultation with private school officials, to allocate funds reserved for private school students differently, based on the needs of those students? On December 22, CAPE received the following response from the ESEA Flexibility Response Team.
You also asked about the potential impact of ESEA flexibility on the implementation of equitable services in the event that an LEA in a State approved for flexibility transfers funds from one allowable program to another. More specifically, we understand your question to be whether an LEA that transfers funds from one eligible program into another may retain the share of funds generated by private school students for the program from which funds are transferred and use those funds to provide equitable services under any authorized program.
ESEA flexibility permits an LEA in a State that is approved for that flexibility to transfer up to 100 percent of the funds received under the authorized programs designated in ESEA section 6123 among those programs and into Title I, Part A. See FAQ B-19 for a list of eligible programs. Only the limitations on the amount of funds that may be transferred are being waived; the other provisions regarding transferability remain the same. Accordingly, with the exception noted below, consistent with ESEA section 6123(e)(1), an LEA must follow the rules and requirements applicable to the program(s) to which the funds are transferred, including the requirements to provide equitable services to private school students. If, for example, an LEA transfers 50 percent of its Title II, Part D Educational Technology State Grant funds into Title I, Part A, the Title I equitable services requirements would apply to the transferred funds and the Title II, Part D equitable services requirements would continue to apply to the funds remaining in Part D. On the other hand, if an LEA transfers all of its Title II, Part D funds into Title I, Part A, the equitable services requirements under Title I, and only those requirements, would apply. See FAQ B-22. An LEA does not have discretion under ESEA flexibility to provide equitable services to private school students and teachers under a program for which it is not providing services to public school children and teachers.
The exception to this rule concerns Title II, Part A Improving Teacher Quality State Grant funds. ESEA section 9501(b)(3)(B) requires an LEA to provide, at a minimum, equitable services to private school teachers based on an amount of the LEA’s allocation under Title II, Part A that is not less than the aggregate amount of FY 2001 funds that the LEA used for professional development under the former Eisenhower Professional Development Program and Class-Size Reduction Program. Because the Department may not waive requirements related to the equitable participation of private school students and teachers (see ESEA section 9401(c)(5)), even if an LEA transfers most or all of its Title II, Part A funds into another authorized program, the law requires the LEA to reserve an amount of Title II, Part A funds for equitable services provided under that program for private school teachers and other educational personnel that is calculated on the assumption that the LEA is reserving for professional development under Title II, Part A at least as much as it did for FY 2001 under the two predecessor programs. (Source: Email from ESEA Flexibility Response Team to CAPE, December 22, 2011)
(The following item was added May 11, 2012.)
B-22a. Are there any limitations on an LEA’s ability to transfer 100 percent of its Title II, Part A Improving Teacher Quality State Grant funds into another authorized program?
Yes. ESEA section 9501(b)(3)(B) requires an LEA to provide, at a minimum, equitable services to private school teachers based on an amount of the LEA’s overall allocation under Title II, Part A that is not less than the aggregate amount of FY 2001 funds that the LEA used for professional development under the former Eisenhower Professional Development program and Class-Size Reduction program. Because the Department may not waive requirements related to the equitable participation of private school students and teachers (see ESEA section 9401(c)(5)), even if an LEA wishes to transfer most or all of its Title II, Part A funds into another authorized program, the law requires the LEA to reserve an amount of Title II, Part A funds for equitable services provided under that program for private school teachers and other educational personnel that is calculated on the assumption that the LEA is reserving for professional development under Title II, Part A at least as much as it did for FY 2001 under the two predecessor programs.
Assume, for example, that an LEA reserved a total of $30,000 in FY 2001 funds under the Eisenhower Professional Development program and the Class-Size Reduction program for professional development. In order to provide equitable services in a subsequent school year consistent with ESEA section 9501(b)(3)(B), the LEA would need to assume that it would spend at least $30,000 under Title II, Part A for professional development, including the amount of this $30,000 that it would use to provide equitable services to private school teachers and other educational personnel. The amount available for equitable services would be proportionate to the participating private school children compared to the total number of public and participating private school children in the LEA based on the most current enrollment data. For example, if there are 100 children enrolled in participating private schools and 900 children enrolled in public schools in an LEA in the 2012−2013 school year, the LEA would need to spend at least $3,000 ($30,000 1000 100 = $3,000) to provide equitable services in the form of professional development to private school teachers and other educational personnel. This requirement applies even if the LEA is in a State that receives ESEA flexibility and wishes to transfer 100 percent of its Title II, Part A funds to another authorized program. In this case, the LEA could transfer all but $3,000 of Title II, Part A funds to the other program, but would need to make the $3,000 of Title II, Part A funds available for equitable services in the form of professional development to private school teachers and other educational personnel. (Source: Q. B-22a, ESEA Flexibility FAQs Addendum #4, USDE, 5/7/12)