Current Issues in Public Policy

Federal School Nutrition Programs

The U.S. Department of Agriculture (DOA) issued new guidance that required all schools that participated in the federal school nutrition program to provide notice and post flyers that detailed their obligations regarding sexual orientation/gender identity. If schools were to use their religious exemption, they had first to submit a written request to DOA, citing explicit reasons, and wait for approval before acting on the exemption.

However, there is no statutory authority for an agency to require a request or to grant an exemption: the religious institution has only to claim its exemption, not request it.

This August, responding to a great deal of advocacy by faith-based groups and a federal lawsuit filed on behalf of a Christian school in Florida, the UDSA agreed to revise its regulations.

The revision says:

  • “USDA regulations do not require a religious educational institution to submit a written request for a Title IX exemption in order to claim that exemption.”
  • The DOA advises: “Those that have neither sought nor received prior written assurance from USDA may still invoke their exemption after USDA receives a Title IX discrimination complaint or initiates Title IX compliance efforts.”

SBA and Treasury Announce PPP Re-Opening; Issue New Guidance

The Paycheck Protection Program (PPP) will re-open the week of January 11 for new borrowers and certain existing PPP borrowers.

To promote access to capital, initially only community financial institutions will be able to make First Draw PPP Loans on Monday, January 11, and Second Draw PPP Loans on Wednesday, January 13. The PPP will open to all participating lenders shortly thereafter.

This round of the PPP continues to prioritize millions of Americans employed by small businesses by authorizing up to $284 billion toward job retention and certain other expenses through March 31, 2021, and by allowing certain existing PPP borrowers to apply for a Second Draw PPP Loan.

Key PPP updates include:

  • PPP borrowers can set their PPP loan’s covered period to be any length between 8 and 24 weeks to best meet their business needs;
  • PPP loans will cover additional expenses, including operations expenditures, property damage costs, supplier costs, and worker protection expenditures;
  • The Program’s eligibility is expanded to include 501(c)(6)s, housing cooperatives, direct marketing organizations, among other types of organizations;
  • The PPP provides greater flexibility for seasonal employees;
  • Certain existing PPP borrowers can request to modify their First Draw PPP Loan amount; and
  • Certain existing PPP borrowers are now eligible to apply for a Second Draw PPP Loan.

A borrower is generally eligible for a Second Draw PPP Loan if the borrower:

  • Previously received a First Draw PPP Loan and will or has used the full amount only for authorized uses;
  • Has no more than 300 employees; and
  • Can demonstrate at least a 25% reduction in gross receipts between comparable quarters in 2019 and 2020.

The new guidance released includes:

Additional Funding for Catholic Schools in the December COVID-19 Relief Bill

The COVID-19 relief bill passed on December 21, 2020 grants the U.S. Department of Education $82 billion in a new Education Stabilization Fund (ESF) that has three parts:

  • Governors Emergency Education Relief Fund (GEER): $4.1 Billion. Of that money, $2.75 billion is reserved for non-public school students.
  • Elementary and Secondary School Emergency Relief Fund (ESSER): $54.3 Billion – public school students only participate in this fund.
  • Higher Education Emergency Relief Fund: $22.7 Billion.

NOTE: The information below is a first look at the new aid provided in the latest relief bill. There are a number of details that need further guidance for implementation. That information will be forthcoming from the U.S. Department of Education.

Private school participation in the GEER fund $2.75 billion private school fund

  • Allocation of the funds to the states will be based on the number of low-income school-aged children at or below 185% of the poverty level that attend non-public schools in the state.
  • The Secretary of Education invites the state governors to apply for the fund. If they do apply and are approved, the governors appoint their state education department (SEA) to administer the program and invite private schools to apply.
  • The SEA has 30 days to approve or deny grant applications under the program.
  • SEA shall prioritize assistance to non-public schools that enroll low-income students and are most impacted by the emergency.
  • Private schools may not apply for the GEER fund if they are applying for a second Paycheck Protection Program (PPP) loan. Schools must choose between the programs. If a school received a PPP loan in the first go-round, they may apply for the new PPP loan or the GEER but not both.
  • Reimbursements: the new bill permits the SEA/LEA agency to reimburse schools for certain allowable expenses that schools have incurred since the pandemic began. There is no guidance on how this is to be implemented.
  • No portion of the GEER fund may be used to provide tuition assistance to scholarship organizations or individual student scholarships or tuition aid to families.

Allowable expenditures in GEER funds include most that were covered under the original CARES Act: supplies to sanitize school facilities; personal protective equipment; improving ventilation; training for staff on COVID safety; physical barriers to facilitate distancing; other materials to implement public health protocols; expanding capacity to administer testing and tracing; educational technology; redeveloping instructional plans or addressing learning loss; transportation costs.

Additional provisions that may impact Catholic schools:

Paycheck Protection Program - The Act creates a second round of PPP loans for borrowers with no more than 300 employees and meets other eligibility criteria. Religious organizations that meet the specified criteria are eligible for a loan.

Tax Provisions:

  • Employee retention credit and deferral of payroll tax provision in the original CARES Act are extended.
  • Charitable Contributions: The CARES Act legislation extends provision for tax year 2021 allowing single individuals to deduct up to $300 and couples to deduct up to $600 in charitable gifts, even if they do not itemize.

NEW CARES Act Guidance Providing Equitable Services to Students and Teachers in Non-Public Schools

On October 9, the U.S. Department of Education released Providing Equitable Services to Students and Teachers in Non-Public Schools under CARES Act Programs. This document revises former guidance issued previously that was vacated by three federal court decisions.

This new guidance applies to the Governor's Emergency Education Relief Fund (GEER) and the Elementary and Secondary School Emergency Relief Fund (ESSER) of the CARES Act. It conforms with the requirement to calculate the proportional share of funding for private schools “in the same manner as provided under section 1117" Every Student Succeeds Act.

Important takeaways:

The LEA (public school district) in which the private school is located is responsible for carrying out the equitable services provisions for all schools in that district.

All consultation is to be with the one district and must follow the required consultation topics.

Data used to calculate the proportional share may be that which was used for the 2019-2020 or 2020-2021 calculations.

The services that are allowable under the bill may be found here.

If there is disagreement between the private school officials and the LEA representatives, the ombudsman should be contacted.

Any prior consultations and calculations and delivery of services made in good faith under prior guidance when it was in effect (before September 4, 2020) may be honored.

Private school officials responsible for engaging with the LEA in the consultation process should download the document and bring it to all the consultation meetings.

Carry-Over Funds for ESSA Programs

Many schools were not able to expend all of the funds allotted for the various Title programs due to the school closures. While ESSA now requires that funds be used in the year in which they were allocated, there are circumstances in which they may be carried over into the next year. Section N-7 of the U.S. Department of Education guidance is available online. Schools are entitled to the unexpended funds from the prior year and should be discussed in the consultation process for the current year – apart from the CARES Act special funding.

There is now more flexibility in use of the ESSA funds due to waivers under the COVID crisis. Title IV has no limit on funding use for technology so schools might consider requesting that these funds be allocated to acquire devices to provide students with tools they need if they do not have home access to engage in virtual learning. Title II-A funds might also be used to provide teachers with additional training and materials to ensure more effective digital instruction. Think ahead—not just about reopening school but about what might be needed if the country experiences another shutdown during the next year.

New Regulations for ESSA Professional Development Activities

The U.S. Department of Education (Department), in consultation with the U.S. Department of Justice, has determined that provisions in ESSA that require an equitable services provider to be "independent of...any religious organization" are unconstitutional because they exclude religious organizations based solely on their religious identity and thus violate principles set forth in the Supreme Court’s decision in Trinity Lutheran.

This new regulation allows a school to request that registration fees or other allowable activities paid for with Title II-A or Title IV-A funds may be billed directly to NCEA or other programs provided by religious organizations.

Additional details are available online.

New National School Choice Federal Tax Credit Legislation Proposed

U.S. Secretary of Education Betsy DeVos, along with U.S. Sen. Ted Cruz and U.S. Rep. Bradley Byrne, unveiled the Education Freedom Scholarships (EFS) legislation that will be introduced into both houses of Congress. The bill proposes a $5 billion yearly investment to expand and improve the education options available to students across the country.

The program will make up to $5 billion yearly available for tax credits for locally controlled scholarship programs that grant scholarships to students to choose the learning environment and style that best meets their unique needs.

EFS will be funded through taxpayers’ voluntary contributions to state‐identified Scholarship Granting Organizations (SGOs). Those taxpayers will then receive a non‐refundable, dollar‐for‐dollar federal tax credit. EFS will not create a new federal education program but will have the states decide whether or not to participate and, if they choose to, how to select eligible students, education providers and allowable education expenses.

Some of the ways states could potentially expand students’ access to educational opportunities include, but are not limited to, scholarships that would fund participation in:

  • Advanced, remedial, and elective courses;
  • Apprenticeships and industry certifications;
  • Concurrent and dual enrollment;
  • Private and home education;
  • Special education services and therapies;
  • Transportation to education providers outside of a family’s zoned school;
  • Tutoring, especially for students in low‐performing schools; and
  • Summer and after-school education programs.
The Cruz bill also includes an additional $5 billion tax credit program to fund scholarships for career and technical education and workforce internships for expanding career training options for students while closing the skills gap for employers. 

The scholarships can cover allowable education expenses, such as:

  • Tuition for dual or joint enrollment courses online or in-person at local community colleges or short-term job training programs like a coding boot camp or accelerated training program;
  • Books and fees required by a technical program or community college of choice;
  • Industry-based exams and certification fees necessary for an in-demand occupation;
  • Transportation to an apprenticeship training center or worksite, magnet school, career and technical education academy, or public or private school of a family’s choice; and
  • Tools, supplies, and personal protective equipment required for in-person or online career and technical education programs.
There will be a number of challenges in attempts to gain bipartisan support for the bills in both houses of Congress and get a final bill passed. Coalitions of supporters will need to engage with one another and with parent groups to develop a blueprint for advocacy with their congressional delegates to dispel myths and promote benefits of the program. NCEA will work with others in the private school community to advocate for congressional passage. President Trump will sign it if it reaches his desk. A quick fact sheet is available online.

NCEA Annual Financial Report

Every school should have received an e-mail from CARA (Center for Applied Research in the Apostolate) regarding the annual financial survey conducted for NCEA. We ask that all schools participate so we may obtain a robust data set with high quality information and resources to share with all of our schools and dioceses to assist with their planning. PLEASE complete the survey as soon as possible so we may prepare the report in a timely manner. If you have any questions, please contact Sr. Dale McDonald.

Hurricane and Wildfire Disaster Assistance for Schools and Students

The U.S. Department of Education has finally begun the process of providing assistance to schools and students impact the hurricanes and wildfires that impacted parts of the United States and Puerto Rico and the U.S. Virgin Islands this past summer. States and territories impacted by the 2017 hurricanes and wildfires (Alabama, California, Florida, Georgia, Louisiana, South Carolina, Texas and Puerto Rico and the U.S. Virgin Islands) are eligible for rebuild funding, retroactively.

The Bipartisan Budget Act of 2018 (P.L. 115-123; February 9, 2018) provided funding for three programs to aid education:

  • Immediate Aid to Restart School Operations (Restart)
  • Temporary Emergency Impact Aid for Displaced Students
  • Assistance for Homeless Children and Youth (Private school students are not eligible for this program.)

Immediate Aid to Restart School Operations (Restart): Funds will be used to assist school administrators and personnel in restarting school operations, re-opening schools, and re-enrolling students. Private (non-public) schools are to be equitably included.

  • The Restart legislation defines a non-public school as a non-public elementary or secondary school that is accredited or licensed or otherwise operates in accordance with State law, and that was in existence one week prior to the date the major disaster or emergency was declared for the area.
  • The legislation requires that the services or assistance for non-public school students be provided in a timely manner. SEAs must work closely and promptly with representatives of non-public schools to ensure that this occurs.
  • However, a SEA may not subgrant Restart funds to a non-public school. When an SEA provides services or assistance under this program to non-public schools, the control of funds for these services or assistance must be maintained by a public agency. This agency could be the SEA itself, an LEA, or another appropriate public agency. (See Section F, “Serving Non-Public Schools under the Restart Program” in the guidance document for additional information.)
  • Restart funds may be used for the following activities:
    • Recovery of student and personnel data, and other electronic information;
    • Replacement of school district information systems, including hardware and software;
    • Financial operations;
    • Reasonable transportation costs;
    • Rental of mobile educational units and leasing of neutral sites or spaces;
    • Initial replacement of instructional materials and equipment, including textbooks;
    • Redeveloping instructional plans, including curriculum development;
    • Initiating and maintaining education and support services;
    • Other activities related to the purposes of the program subject to approval by ED;
    • The legislation expressly prohibits the use of Restart funds for construction or major renovation of schools. If necessary and reasonable, these funds may be used for minor remodeling and repair.

What information must an eligible SEA include in its initial application in order to receive a Restart allocation? In the initial application for Restart program funds, eligible SEAs will provide (1) data on the number of public and non-public schools closed as a result of a covered disaster or emergency, and the number of students enrolled during the 2016-17 school year in those schools; (2) a preliminary Restart plan that provides a brief description of how the State will use the funds to provide services or assistance to eligible LEAs and non-public schools and ensure accountability for the use of funds.

Schools located in the designated areas should have been contacted by the SEA or LEA regarding their participation. If you are eligible and have not been contacted, call your SEA immediately.

Temporary Emergency Impact Aid for Displaced Students: This program will provide payments to eligible LEAs to assist with the cost of educating students who were displaced by a covered disaster or emergency during the 2017-18 school year and who were enrolled in public schools, including charter schools, and non-public schools. Aid received under this program will provide tuition assistance for displaced students who enrolled in a different school due to the disasters.

Criteria for determining eligible non-public school displaced students under this act:

  • Student resided in impacted area a week prior to disaster;
  • Student was enrolled in different elementary and secondary school from original school in 2017-2018 school year due to disaster impact;
  • Student attends an eligible not-for-profit school;
  • School is accredited or operates in accordance with law;
  • School was in operation on day of event;
  • Includes one family that has applied for assistance under the program;
  • Displaced non-public school students must have enrolled in a non-public school prior to Feb. 9, 2018;
  • Parents must submit application to LEA (or SEA if it is so designated);
  • Parents/guardians have to provide evidence children meet definitions of displaced; submit required data and documentation to LEA or SEA as directed.

Funding: Maximum aggregate aid per student (Students may be counted in only one of the following categories):

  • $8,500 for those not disabled or English Learners;
  • $9,000 for students who are English Learners;
  • $10,000 for those with a diagnosed disability;
  • Non-public school student aid: Whatever the lesser amount of that listed above or published school tuition.

Funds can be used, retroactively, only for 2017-2018 school year expenses.

The deadline for submission of State applications for these programs is May 25, 2018. If you have now, or had in the past few months, students who were displaced by the disasters, contact your LEA immediately to have your eligible students counted – even if they are no longer with you but you can prove they were in your school on specific dates.

The U.S. Department issued a Dear Colleague Letter and published a Notice Announcing Availability of Funds and Application Deadlines for these programs in the Federal Register on April 25, 2018.

They have provided a sample application that the LEA must send to the SEA that details they necessary the data points required.

School principals must complete and submit a Non-Public School Certification form for your LEA.

Principals should attempt to locate displaced families who would generate this tuition reimbursement. The parents/guardians of displaced students have to complete an application as well.

NB: States may use their own forms to collect similar information so be sure to check with LEA about the proper forms.

For further Information, refer to the Department of Education’s Hurricane Help website which has links to all K-12 program applications and sample forms. You may also email ONPE.

The Office of Non Public Education (ONPE) will be releasing FAQs pertaining to private school participation. They will be published on the NCEA website as soon as they become available.

Tax Cuts and Jobs Act (new tax reform bill)

There are several education provisions in the new tax law that may benefit Catholic school students and teachers. The first three items were targeted for elimination but were preserved thanks to some advocacy and support from thousands of members of the Catholic and private school communities who contacted their senators and representatives.

  • Free or reduced tuition for children of Catholic school employees will remain tax-free.
  • Educational assistance of up to $5,250 annually (tuition, professional development, etc.) for school employees will remain tax-free.
  • Teacher tax deduction: A $250 deduction for expenses incurred by elementary and secondary school teachers for professional development or instructional materials they purchase for their classroom is continued. The attempts to increase that to $500 were not successful.
  • Expansion of 529 Accounts. In the past, funds invested in 529 savings accounts could only be used for college expenses. Under the new bill, up to $10,000 can be distributed annually to pay for the cost of sending a child to a "public, private or religious elementary or secondary school as well as for college expenses and earning on gains are not federally taxed.

The 529 expansion is a significant step in the ongoing quest for financially supported school choice. This will benefit many families who can contribute funds into accounts for their children where the gains may be withdrawn tax-free. In many states, the principal contributed to the plan is deductible for state income taxes but state laws on this point vary widely. Also, the availability of an account with tax advantages for contributors in certain states may incentivize assistance from friends or family who may not have otherwise assisted.

Catholic schools should work with their all of their families to alert them to this new provision of the 529 program. For those families, immediate and extended, who can contribute to a 529 account it is important to follow implementation guidance from the IRS as well as consultation with an accountant or financial adviser to determine if a 529 account is appropriate.

However, most families of modest or low income may not be able to take advantage of such a program and will need assistance such as tax-credit scholarship programs, vouchers, education savings accounts and other choice programs to enable them to exercise their right to select the best school for their children. The private school community will continue to advocate for the $20 billion tax credit program that was part of President Trump’s campaign promises.

Institutional Safety

The White House has released guidance documents for developing high-quality emergency operations plans for schools, institutions of higher education and houses of worship. These guides have been jointly produced by the U.S. Departments of Homeland Security, Justice, Education and Health & Human Services on this critical topic.

These emergency planning guides are customized to each type of community and can be used to revise or create new plans and align them with emergency planning practices at the national, state, and local levels.

Guide for Developing High-Quality School Emergency Operations Plans

In addition, the FEMA Emergency Management Institute is offering a free independent study program online: Preparing for Mass Casualty Incidents - A Guide for Schools, Higher Education and Houses of Worship.

IDEA and 504

IDEA is a federal education law that provides services to some students in private schools, depending upon the funding available.

504 is a civil rights law that indicated the nature of a person's disability and the accommodations required. Private schools, even if they participate in the federal nutrition programs, are not required to write 504 plans — that is the responsibility of the local public school district.

The Catholic school accommodations plan is sufficient. See this article pertaining to 504 plans.

Restart Guidance
(Adobe PDF File)