March 21, 2019

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AASA Feedback on Changes to Equitable Services

Earlier this month, USED handed down a clarification related to equitable services in ESSA that would allow third party or outside players to be religiously affiliated. For background: Under ESSA, public schools have to offer/provide the same services to vulnerable students in private schools that are available to students in the public schools. Under current practice, some schools make that work by providing a teacher or the related salary. Or, while current law prohibits the money from going directly to the private school, districts consult with the private school leaders to determine what services need to be provided and if they need to use an outside contractor. Under previous interpretation, there was a prohibition against any such organization being religious in affiliation. In light of Trinity Lutheran (The SCOTUS case the is a foot-in-the-door approach to vouchers and allows for public dollars to go to private schools in narrow circumstances), USED was clarifying that prohibition against these contractors being religious was illegal. This means that schools can now consider proposals or bids from religious groups. While this is not likely sizeable in terms of dollars that may ultimately flow to private providers that are religiously affiliated, it is a seismic shift in that public dollars will end up in private schools. 

In response to the change, AASA submitted the following comment to USED:

On Monday, March 11, the US Education Department (USED) announced that in light of the U.S. Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), eligible organizations cannot be disqualified from receiving a public benefit solely because of their religious character, USED will no longer enforce statutory provisions of the Elementary and Secondary Education Act (ESEA) that previously restricted school districts from contracting with religious organizations to provide equitable services on the same basis as any other organization. The Trinity decision expanded federal law to allow provision of public dollars to private entities/schools in a narrow circumstance, and we want to ensure that this USED application of this interpretation does not spill over into a further expansion. That is, it is a creative interpretation of legal logic to expand a decision that is it ok for a contractor to use public funds to resurface a playground in a private school to then allow that flexibility to apply to a contractor who will provide instructional services. 

We share USED’s goal to support school districts in providing high-quality educational services to students and teachers. To that end, we encourage USED to consider and make clear those ways in which it will prevent fraud, waste, and abuse in circumstances where school districts choose to contract with religious organizations to provide equitable services, and in turn instruct states as to how to effectively include this in their monitoring. In addition, we encourage USED to remain diligent in its enforcement of other applicable statutory provisions and we encourage LEAs to ensure that their activities are compliant with those provisions, including the requirement that any contractor be independent of the private school for which it is providing services (i.e., the contractor does not have administrative or fiscal direction and control over the private school) and that the educational services and other benefits being provided by the contractor are “secular, neutral, and nonideological.” As with any other contractual arrangement funded by federal dollars, transparency and accountability in these arrangements are critical to supporting students’ and teachers’ success and the responsible allocation of limited financial resources. 

 


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