U.S. Department Of Education Issues Revised Guidance Regarding CARES Act Funding To Private School Students

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Nov 19, 2020

The U.S. Department of Education released updated guidance entitled” Providing Equitable Services to Students and Teachers in Non-Public Schools Under CARES Act Program” after three court cases—including brought by the State of California— successfully challenged the Department’s initial guidance issued on April 30, 2020. The CARES Act authorized the Education Stabilization Fund, which was a new appropriation of $30.75 billion that created funding streams for programs that addressed the impact of COVID-19 on educational services. Under these programs, the Department awarded governors, State educational agencies, and institutions of higher education to help states prevent, prepare for, and respond to the effects of COVID-19. Two programs required local educational agencies that received funds to provide equitable services to students and teachers in private schools.

Specifically, the original guidance advised LEAs to set aside money for “equitable services” for all local private school students. This was a departure from how federal law typically handled those services, which were provided normally only to disadvantaged and at-risk students in private schools. Under the original guidance, if private school students represented 8% of total enrollment within the LEA’s boundaries, the LEA must set aside 8% of the total funds the LEA received under a CARES Act program for equitable services for these students at private schools.

However, in August and September, three federal trial courts issued decisions that concluded an LEA must determine the proportional share available to provide equitable services to non-public school students and teachers in accordance with Section 1117(a)(4)(A) of the Elementary and Secondary Education Act—meaning, the calculation of the equitable service is based now on the number of low-income children who attend private schools. Accordingly, the Department released revised guidance on October 9, 2020, that aligned with the courts’ decisions. 

An institution of higher education or education-related entity that receives funds through the CARES Act is not required to provide equitable services to students and teachers in nonpublic schools.

Read the revised guidance here.


The multistate lawsuit against the Secretary of Education, in which the State of California joined, argued the federal rule threatened tens of millions of dollars in California intended to help K-12 public schools confront the effects of the COVID-19 pandemic. Specifically, the State successfully argued the federal rule violated requirements established by Congress, the Administrative Procedure Act, and the U.S. Constitution. Now that the Department has revised the rule, LEAs are no longer required to divert CARES Act funding intended for low-income students to private school students regardless of economic status.