Elementary and Secondary School Emergency Relief I (ESSER I) Fund

ESSER I Equitable Services in Non-Public Schools

Under the CARES Act Elementary and Secondary School Emergency Relief (ESSER) fund, school districts are required to offer equitable services to eligible nonprofit private schools: those located within and outside of the district boundaries that are serving students who live in a Title I attendance area. This does not apply to charter school districts, regional vocational school districts, or virtual schools.

In general, districts are required to follow the same outreach and consultation with private schools as required under ESSA. Districts must contact nonprofit private school officials to notify them of the opportunity for their students and teachers to obtain equitable services under the CARES Act Program, including private schools that declined to participate in other FY2020 federal grants. DESE has modified the sample offer of consultation letter to include the ESSER fund. If a private school declines to participate in ESSER or does not respond to a district's good-faith effort to make contact, the district's responsibility to provide services to that school ends, although thorough documentation of efforts is required.

DESE has modified the Affirmation of Consultation form to include the ESSER fund. Districts must use this document to keep a record of the topics that were discussed and programmatic services that were agreed to. The public school official and participating private school official should each maintain a copy of this form on file. The Department will collect these Affirmation of Consultation forms during the first quarterly ESSER data collection from districts, scheduled to take place in September 2020. If a private school does not sign or return an affirmation of consultation within a reasonable time, districts should notify DESE's ombudsman .

Please note that the federal guidance on how to calculate the reservation of funds for CARES Act ESSER Equitable Services has been in flux since its passage on March 27, 2020. After issuing non-regulatory guidance in late April of 2020 that suggested one way to do the calculation, USED instituted an Interim Final Rule (IFR) on July 1, 2020, which had the force and effect of law that provides two additional options for the calculation. As of September 4, 2020, the U.S. District court for the District of Columbia issued a and order vacating USED's Interim Final Rule regarding equitable services under the CARES Act ESSER fund. On September 9, 2020, USED acknowledged on its website that the Interim Final Rule "is no longer in effect." Subsequently, on September 25, 2020, Secretary DeVos issued a letter to the chief state school officers stating that USED will not appeal the ruling.

Accordingly, the Interim Final Rule has no effect on the calculation and allocation of ESSER funds for equitable services for private schools or on applicable GEER funds. Districts should use the Title I methodology to calculate reservations and allocation of services for eligible participating private schools. The Title I methodology is based on the number of students from Title I-eligible families attending private schools. Title I eligible students are students who would have attended a Title I-served school had they attended their home district public school.

In light of this development, DESE advises that districts take the following actions:

• Use DESE's ESSER equitable services calculator to recalculate the ESSER equitable services reservation per the Title I methodology.
• Communicate with private schools about the necessary shifts, as detailed below:
  1. Offer consultation to private schools that are outside of the district's geographic boundaries and that are serving students that live in a Title I attendance area. This is necessary because the Interim Final Rule and USED's nonregulatory guidance stated that all private schools within the district boundaries were eligible to participate in equitable services, whether or not they enrolled Title I-eligible students. Because the Interim Final Rule is now invalid, this is no longer the case. Therefore, certain private schools outside of the district's geographic boundaries may now be eligible, and certain private schools within the district's geographic boundaries may now be ineligible.
  2. Reach out to private schools that were eligible under the Interim Final Rule but are no longer eligible under the Title I methodology. Districts should not continue to provide, nor begin to provide, equitable services to private schools that are not eligible.
  3. Consult with private schools that remain eligible but whose reservation for equitable services will likely change under the Title I methodology.
• Keep lines of communication open with your private school colleagues. In these difficult times for all schools, both public and private, and for families and students, the shifting of these federal rules for providing equitable services has been challenging. Open communication is essential as we all do our best to serve our students and comply with the current federal requirements. To help reinforce your communication efforts, DESE will send a copy of this alert to its private school contacts.

The restrictions imposed by the Interim Final Rule on districts' use of funds are also no longer valid. This means ESSER funds are not subject to supplement not supplant requirements, and the use of ESSER funds in Title I schools does not violate Title I supplement not supplant requirements. Districts may use their ESSER funds for any ESSER-allowable purpose and are not limited to spending funds only for Title I schools.

Districts should consult with their legal counsel for advice on their particular circumstances. These may include considerations regarding money already expended for private schools that do not qualify for CARES Act funding under the Title I methodology, or the methodology for determining the number of eligible low-income private school students.

Massachusetts and its school districts, along with many other states, acted in good faith from the inception of the CARES Act in following the now-vacated USED Interim Final Rule. Secretary DeVos, in her September 25, 2020 letter, noted that no action will be taken against districts for having followed these rules at the time they were in effect. However, now that the Interim Final Rule has been found invalid and is without legal effect, districts must take steps to comply with the language in the law. DESE will continue to work with you to support your efforts in service of all students. Should you have questions about these changes, or about making amendments to your ESSER applications, please reach out to your federal grants liaison .

Last Updated: May 25, 2022