1. ESEA EQUITABLE SERVICES: SERVING PRIVATE SCHOOL STUDENTS, PARENTS AND STAFF
Jennifer S. Mauskapf, Esq.
Brustein & Manasevit, PLLC
Fall Forum 2012

2. APPLICABLE STATUTES Title IX, Uniform Provisions: § § 9501-9504
*Governs equitable services under NINE NCLB Programs
Title I-A: § 1120
Title V-A: § 5142
Title V-D-6: § 5466
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3. GUIDANCE
Title IX, Part E Guidance (Revised, March 2009)
Ensuring Eq. Servs. to Private School Children: A Title I Resource Toolkit:
Title I Services to Eligible Private School Students Guidance:
Title I Fiscal Guidance:
Benefits to Private School Students and Teachers
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4. THE BIG PICTURE
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5. NCLB Programs w/Eq. Part. Reqs.
Title I, Part A
Reading First (T1-B-1)
Even Start Family Literacy (T1-B-3)
Migratory Education Program (T1-C)
Title II, Part A
Mathematics and Science Partnerships (T2-B)
Enhancing Education Through Technology (T2-D)
English Language Acquisition, Language Enhancement, and Academic Achievement (T3-A)
Safe and Drug-Free Schools and Communities (T4-A)
21st Century Community Learning Centers (T4-B)
Innovative Programs (T5-A)
Gifted and Talented Students (T5-D-6)3
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6. GENERAL RULE
LEA must provide equitable services and benefits to eligible private school students, teachers, other educational personnel, and parents
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7. Services are Equitable when the LEA…
Spends an equal amount of funds to serve similar public and private school students
Provides services and benefits that are equitable in comparison to the services and benefits provided to public school students
Addresses the specific needs and educational programs on public and private school students on a comparable basis
Provides, in the aggregate, approximately the same amount of services
Provides equal opportunities to participate
Provides services that meet private school’s specific needs
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8. CONSULTATION
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9. CONSULTATION: Must be “Timely and Meaningful”
Before the LEA makes any decisions
Meaningful
Genuine opportunity for parties to express their views
Views seriously considered
Not unilateral offer without opportunity for discussion
On-going
BUT NOTE:
LEA has final decision
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10. Consultation must include… T1-A: 34 CFR 200.63 T9: § 9501(c)(1)
How students’ needs will be identified
What services will be offered
How, where, and by whom the services will be provided
How the services will be assessed and how the results of the assessment will be used to improve services
The size and scope of services
How and when the LEA will make decisions about the delivery of services
Amount of funds available for services and how determined
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11. Documenting Consultation
Retain documentation that shows:
Informed private school officials of available federal programs
Engaged in timely and meaningful consultation
Identified private schools’ needs
Allocated sufficient funds for private schools
Provided equitable services and benefits
Evaluated programs and services for effectiveness
Adequately addressed problems & complaints
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12. Disagreement Re: Third Party Providers
Thorough consideration of private school officials’ views required
If LEA disagrees with private school officials re: provision of services through a contract  must provide a written explanation of the reasons why LEA has chosen not to use a contractor
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13. Written Affirmation
LEAs must obtain written affirmation from private school officials stating timely and meaningful consultation occurred
Signed by officials from each school with participating children, or representative
Note Timing
Required by Title I-A, but not Title IX
Send to SEA and maintain in LEA’s files
Example in Guidance
T9 Note: Guidance (D-9) encourages use of ‘sign-off’ forms although not statutorily required
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14. Right to File a Complaint
Private School Official has the right to complain to the SEA that the LEA…
Did not engage in consultation that was meaningful and timely;
Did not give due consideration to the views of the private school official; or
Did not provide fair and equitable services to private school children.
Private School Official provides basis for complaint to SEA; LEA will be required to forward the appropriate documentation to the SEA
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15. SEA Resolution of Complaints
SEA must have written procedures for receiving, investigating, and resolving complaints from parents, teachers, or other individuals and organizations.
SEA decisions may be appealed to the U.S. Secretary of Education.
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16. FISCAL ISSUES Expenditures under Title IX
Deriving the Allocation, TI-A
Additional TI-A/TIX Expenditure Considerations
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17. Equal Expenditure Guidelines (T9)
Many LEAs calculate equal expenditures strictly on the basis of the relative enrollments of public and private school students
This is not required!
Assumes the numbers accurately reflect the relative needs of students and teachers in public and private schools.
LEAs may use other factors relating to need!
Both the number and the educational needs of the public and private school students must be taken into account.
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18. T9 Expenditures, cont.
Must consult with private school officials on the method for determining equal expenditures
Resulting methodology should reasonably reflect the relative numbers and educational needs of the public and private school students
Example of how an LEA may provide private school officials with information about funding allocations for services and per pupil expenditures
T9 Guidance, J-14: Sample Funding Allocations for Services Notification Form
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19. Deriving the Allocation, TI-A
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20. Equitability: Deriving Allocation
General Formula:
Based on number of…
Private school students
From low-income families
Who reside in Title I-participating public school attendance areas
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21. Calculating Allocation for Instruction:
Rank public school areas: highest to lowest
Identify participating areas
Calculate PPA for each area
Calculate allocation amount for each area
Must include nonpublic low-income #
Reserve nonpublic amount
PPA x # of nonpublic low-income in each area
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22. Set-asides
Private school students also must get equitable share of some set-asides…
Off the top for districtwide instruction
*Off top for parental involvement
*Off top for professional development
*Par. Inv. and Prof. Dev. for families and teachers of participating nonpublic students can be provided…
In conjunction with the LEA or
Independently
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23. Five Options for Calculating Poverty Data on Private School Students
Data from same source
Survey, with extrapolation
Comparable data from different source
Proportionality
Correlated measure
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24. Poverty Data, cont. Proportionality Correlated measure
Applying low-income % of each public school attendance area to number of private school children who reside in that area
Correlated measure
Determining the proportional relationship between two sources and applying that ratio to known source or private school students
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25. Poverty Data: Guidance
Preferred method: Same source (FRPL)
BUT – Legis. and Regs. say equally available
May use >1 method
Use comparable income levels
No duplication
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26. Poverty Data: Collect Annually or Biennially
Purpose: to reduce burden
Subject to consultation
Not necessary to have uniform procedure for all private schools
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27. What if LEA chooses to “skip” a public school on its list?
If LEA meets the 3 requirements in order to “skip” public school on its list, eligible private school students who reside in that public school attendance area still must: 1) generate funds, and 2) receive services, if eligible.
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28. Additional TI-A/TIX Expenditure Considerations
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29. Distributing the Funds
Two options:
Pooling:
T1-A: Pool all the funds to use for students with greatest educational need anywhere in LEA
T9: Pool funds for the 2+ private schools interested in this option, use in some or all of these schools
May NOT pool funds across multiple NCLB programs
School-by-School:
T1-A: Funds follow child to private school for educationally needy child in that school
T9: Based on number of children enrolled in the school
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30. Administrative Costs
Off the top!!
Before public and private school allocations are calculated
LEA administrative costs for public and private school program
Third party provider (contractors/private companies) administrative cost (including fee or profit)
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31. Carryover
If the LEA does not use all funds designated for service to private school students, how is money treated?  IT DEPENDS.
If LEA provided equitable services in first year…
 then carryover funds revert to regular program pot.
If LEA did not provide equitable services,
 then must earmark funds for services to private school students in the carryover year.
 Use in Year 2, in addition to entire amount of new allocation.
EITHER WAY: Funds remain in control of LEA.
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32. SERVICE DELIVERY
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33. Eligibility for Services
Title I-A
Reside in participating public school attendance area; AND
Meet §1115 criteria
Educationally Needy
Status eligibility: homeless, Head Start, ERF, etc.
Title IX
Enrolled in nonprofit private school located in LEA
Meet specific eligibility/participation criteria of given program
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34. # of low-income ≠ # eligible for service
Selection Criteria
Determined by LEA, in consultation
Multiple, educationally-related objective
Achievement tests, teacher referrals, grades
NOTE: Preschool-Grade 2
Poverty is NOT a criterion
# of low-income ≠ # eligible for service
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35. QUESTION….
What if child resides in LEA X but attends a private school located in LEA Y?
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36. Delivery and Provision of Services
Directly, through private company, or another LEA
May be on-site at private school, with safeguards
Neutral, secular and non-ideological
LEA controls
Benefit of students, not private school
LEA controls finances
*Includes maintaining title to materials, equipment, and property purchased with those funds
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37. Examples
Instruction provided by LEA employees or third- party contractors
Extended-day services
Family literacy
Counseling
Computer-assisted instruction
Home tutoring
Take home computers
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38. Timing of Services To begin at same time as public program
If not  LEA should provide additional services during the remainder of the year and carry over any unspent funds
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39. § 1119 Staff Qualifications
Do NOT apply to:
Private school teachers or paraprofessionals
Third party contractor teachers or paraprofessionals
DOES apply to:
LEA teachers teaching private school students
LEA paraprofessionals
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40. Professional Development
For private school teachers of participants
Not for LEA teachers of participants
Consult over appropriate services
Private school officials cannot arrange, then submit invoice to LEA
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41. Accountability Must assess participating private school students
Need NOT be state assessment
Consultation
Compare against relevant adequate progress measure
No school improvement consequences (choice, supplemental services, etc.)
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42. Questions?
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43. Disclaimer
This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with Brustein & Manasevit. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.
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