U.S. Department of Education Releases $13 Billion for K-12 Schools Through CARES Act Emergency Funding Provisions

On Thursday, April 23, 2020, the U.S. Department of Education (ED) announced the release of over $13 billion in emergency assistance for K-12 schools under the Elementary and Secondary School Emergency Relief (ESSER) fund established by the Coronavirus Aid, Relief and Economic Security (CARES) Act. As described in our previous summary of CARES Act education stabilization funds, these ESSER funds are provided to State educational agencies (SEAs), which must then provide at least 90% of their respective allocations to local educational agencies (LEAs), including to public charter schools that have LEA status under state law, for purposes specified by the CARES Act. ED has published allocations for each state, as well as for the District of Columbia and Puerto Rico, using the fiscal year 2019 allocations of Title I, Part A funds under the Elementary and Secondary Education Act (ESEA), as required by the CARES Act.

To receive its ESSER funding, each SEA must submit a Certification and Agreement for Funding to ED no later than July 1, 2020. While the CARES Act indicates that ED must approve or deny each application within 30 days, ED has indicated that it “intends to process each submitted form within three business days of receipt.” Upon receiving their ESSER fund allocations, SEAs have one year to obligate funds for permissible purposes. Funds not obligated by the SEA in that year will be returned to ED for reallocation to other states.

SEAs must award ESSER funds consistent with the following CARES Act requirements:

• At least 90% in sub-grants to LEAs (including public charter schools), in the same proportion as that set forth by the ESEA.
• Up to 0.5% may be reserved for the SEA’s administrative costs.
• An SEA may reserve the remainder for emergency needs relating to the coronavirus.

Permissible uses of ESSER funds distributed to LEAs include:

• Existing purposes under the ESEA, the Individuals with Disabilities Education Act (IDEA) and other laws.
• Preparedness coordination among government agencies, including among State, local, Tribal, and territorial educational and public health agencies.
• Providing resources for principals and school leaders to address individual school needs.
• Providing activities to address the needs of certain disadvantaged students, including low-income students or children, children with disabilities, homeless students, and others requiring outreach and delivery of services.
• Training regarding sanitation and the minimization of infectious disease spread.
• Purchasing of sanitation supplies for the facilities of the LEA, or for facilities it operates.
• Planning and coordination for long-term school closures, including planning for the provision of meals, online learning technology, and IDEA and other educational services to students who require them, consistent with existing law.
• Purchasing educational technology — “including hardware, software, and connectivity” — for students, including assistive or adaptive devices and equipment.
• Provision of mental health services and support.
• Planning and implementing summertime and after-school educational resources.
• Providing, planning or purchasing other activities that are necessary for the continued operation of, and provision of services by, the LEA, including its continued employment of staff (provided, that ESSER funds may not be used to subsidize or offset executive salaries and benefits of individuals who are not employees of the SEA or LEAs, or for expenditures related to state or local teacher or faculty unions or association).
• Providing equitable services to students and teachers in non-public schools as required under the ESEA.

Any ESSER funds reserved by the SEA may be used for “emergency needs” to “address issues responding to coronavirus,” and may be provided expended through grants or contracts. In expending their ESSER funds, SEAs and LEAs may also apply for a waiver of certain statutory requirements, if needed, including specific provisions of the ESEA and of the McKinney Homeless Assistance Act. However, no civil rights provisions may be waived. ED has published a template waiver for such requests, and has indicated that while it will accept, process, and approve any appropriate waiver request, ED “plans to respond in one business day” to any SEA that uses the published template to file its waiver request.

Each SEA, LEA and any other entity that receives ESSER monies must, to the greatest extent practicable, continue to compensate its employees and contractors during the period of any disruptions or closures related to COVID-19. Both the CARES Act and the Certification and Agreement for Funding also include a “maintenance of effort” requirement, pursuant to which a State must maintain support for elementary and secondary education and State support for higher education (which must include State funding to IHEs and State need-based financial aid, and may not include support for capital projects or for research and development or tuition and fees paid by students) in fiscal years 2020 and 2021 at least at the levels of such support that is the average of such State’s support for elementary and secondary education and for higher education in the three fiscal years preceding March 27, 2020. ED may waive the requirement that a State maintain effort for the purpose of relieving fiscal burdens on States that have experienced a precipitous decline in financial resources.

We are continuing to closely monitor developments from ED and other education regulatory authorities related to the coronavirus pandemic. Should you have questions regarding this matter, or other educational regulatory matters, please do not hesitate to contact any member of our Education team, or your usual contact at Faegre Drinker.