Court filing
Appendix in Support of Motion for Preliminary Injunction — State of Michigan v. Devos (Dkt. 35-2, N.D. Cal.)
Filed July 20, 2020 in State of Michigan v. Devos; one of 3 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of California |
|---|---|
| Filed | 2020-07-20 |
Cite this document
“Appendix in Support of Motion for Preliminary Injunction — State of Michigan v. Devos (Dkt. 35-2, N.D. Cal.).”
U.S. District Court for the Northern District of California, No. 3:20-cv-04478, Doc. 35-2, filed 2020-07-20. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/state-of-michigan-v-devos/2020-07-20-appendix-in-support-of-motion-for-preliminary-injunction-dkt-35-2/
, SHA-256 5fe20db76f39a4d22e2e042efc7a8364f10f621e6bdbd19014978367e5d750e5.Full text
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, DISTRICT OF
COLUMBIA, STATE OF HAWAII, STATE
OF MAINE, STATE OF MARYLAND,
STATE OF NEW MEXICO,
COMMONWEALTH OF
PENNSYLVANIA, STATE OF
WISCONSIN, THE BOARD OF
EDUCATION FOR THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW
YORK, BOARD OF EDUCATION FOR
THE CITY OF CHICAGO, CLEVELAND
MUNICIPAL SCHOOL DISTRICT
BOARD OF EDUCATION, and SAN
FRANCISCO UNIFIED SCHOOL
DISTRICT,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
APPENDIX IN SUPPORT OF MOTION
FOR PRELIMINARY INJUNCTION
Judge: Hon. Sallie Kim
Trial Date:
None set
Action Filed: July 7, 2020
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Appendix in Support of Motion for Preliminary Injunction
Case No. 3:20-cv-04478-SK
APPENDIX OF DECLARATIONS
Exhibit
Number
Declarant
1
MI
Kyle Guerrant, Deputy Superintendent, Michigan Department of
Education
2
CA
Lisa Constancio, Deputy Superintendent of Public Instruction,
Operations and Administration Branch, California Department of
Education
3
CA
Johanna Hoffmann, Strategic Resource Planning Specialist,
Oakland Unified School District
4
DC
Nikki Stewart, Assistant Superintendent, Division of Systems and
Supports, K-12, Office of the State Superintendent of Education
5
HI
Wanelle Kaneshiro-Erdmann, Director, Policy, Innovation,
Planning and Evaluation Branch, Office of Strategy Innovation
and Performance, Hawaii Department of Education
6
ME
A. Pender Makin, Commissioner of Education, Maine Department
of Education
7
MD
Karen B. Salmon, Ph.D., State Superintendent of Schools,
Maryland State Department of Education
8
MD
Dr. Monica E. Goldson, Chief Executive Officer, Prince George’s
County Public Schools
9
NM
Gabriel C. Baca, Director, Student, School and Family Support
Bureau, New Mexico Public Education Department
10
PA
Matthew Stem, Office of Elementary Education, Pennsylvania
Department of Education
11
WI
Benjamin R. Jones, Chief Legal Counsel, Wisconsin Department
of Public Instruction
12
Chicago
Dr. Janice K. Jackson, Chief Executive Officer, Chicago Board of
Education
13
Cleveland
Eric S. Gordon, Chief Executive Officer, Cleveland Municipal
School District
14
New York
City
Lindsey Oates, Chief Financial Officer, New York City
Department of Education
15
SFUSD
Meghan Wallace, Chief Financial Officer, San Francisco Unified
School District
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 2 of 355
EXHIBIT 1
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF KYLE GUERRANT
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Declaration of Kyle Guerrant (3:20-cv-04478-SK)
DECLARATION OF KYLE GUERRANT
I, KYLE GUERRANT, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true
and correct:
1.
I am the Deputy Superintendent for Finance & Operations at the Michigan
Department of Education (MDE), located in Lansing. My educational background includes a
Bachelors of Arts degree in psychology from Long Island University, and a Master of Social
Work degree from the University of Michigan. I have been employed as Deputy Superintendent
since April of 2014, and have been employed in other roles at the Michigan Department of
Education since August 2005.
2.
My responsibilities in this role include providing leadership, direction, and
oversight for the Office of Financial Management (OFM), Office of Health and Nutrition
Services (OHNS), the Library of Michigan (LOM), and Office of Administrative Law (OAL).
For the purposes of this declaration, it is important to note the OFM is responsible for the
accounting and auditing all federal and state funds MDE receives, and allocates to sub-recipients
(local education agencies (LEA), schools, child care providers, etc.), including Title I, Part A
funding.
3.
I submit this Declaration in support of the State of Michigan’s litigation against
Elisabeth D. DeVos, in her official capacity as Secretary of Education, and the United States
Department of Education (the “Department”) (collectively, Defendants) regarding the
Department’s April 30, 2020 guidance document, as updated June 25, 2020, entitled “Providing
Equitable Services Under the CARES Act Programs” (Guidance Document), and the recently
issued interim final rule, entitled Providing Equitable Services to Students and Teachers in Non-
public Schools, 85 Fed. Reg. 39,479 (July 1, 2020) (the “Equitable Services Rule” or the “Rule”).
I have compiled the information in the statements set forth below through personal knowledge,
through MDE personnel who have assisted me in gathering this information from our institution,
and on the basis of documents that have been provided to and/or reviewed by me. I have also
familiarized myself with the Guidance Document and the Rule in order to understand its
immediate impact on MDE and schools in Michigan.
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Declaration of Kyle Guerrant (3:20-cv-04478-SK)
MDE’s Role in K-12 Education in Michigan
4.
The Michigan Constitution charges the Michigan Legislature with “maintain[ing]
and support[ing] a system of free public elementary and secondary schools as defined by law.”
Mich. Const. art. VIII, § 2.
5.
The State Board of Education is vested with “[l]eadership and general supervision
over all public education.” Id. § 3. The State Board of Education “serve[s] as the general
planning and coordinating body for all public education, including higher education, and shall
advise the legislature as to the financial requirements in connection therewith.” Id.
6.
While the LEAs exercise primary responsibility over budgetary and other
decisions within their respective districts, MDE implements federal and state legislative mandates
in education and carries out the policies of the State Board of Education. See Mich. Comp. Laws
§ 388.1009.
7.
Michigan provides more than $13 billion each year to its approximately 836 public
school districts and 56 intermediate school districts. The 3,400 public school buildings in these
districts educate more than 1.5 million students each year.
8.
For the 2019-2020 school year, Michigan received $470,143,688 from the
Department in Title I-A funds, which are designated for districts and schools with a high
proportion of low-income students. In Michigan, 813 LEAs received Title I-A funds during the
2019-2020 school year. Within these LEAs, 1,840 schools received Title I-A funds (“Title I
schools”). These Title I schools educate approximately 731,500 students.
9.
Within the Michigan LEAs that receive Title I-A funds, approximately 105,000
students attend private schools, in which 4,580 students were free and reduced lunch eligible.
And while all of these private-school students are eligible for services under Title II of the ESEA,
only 4,580 of private school students were eligible to receive equitable services from Title I-A
funds during the 2019-2020 school year.
Effects of the COVID-19 Pandemic on Education in Michigan
10.
The COVID-19 pandemic has drastically impacted K-12 education in Michigan.
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11.
The State of Michigan closed all of its state-owned buildings to employees and the
public towards the end of March 2020 due to the COVID-19 pandemic. All state employees were
to work from home. MDE obtained security access to SOM-owned IT systems to continue
budgeting, programming, accounting, purchasing, payment activities and other activities
associated with MDE’s responsibilities. MDE is also experiencing temporary layoff days. The
vast majority of MDE employees are required to take one temporary layoff day each week for ten
weeks, the week of July 25, 2020.
12.
Michigan is facing severe revenue shortfalls in both fiscal years 2020 and 2021.
MDE and all other state departments expect further administrative reductions to account for the
fiscal years 2020 and 2021 revenue declines.
13.
Michigan schools were forced to take action to protect the health and safety of
students from the COVID-19 pandemic. Governor Whitmer closed Michigan schools to in-
person learning on March 16, 2020, and subsequently signed Executive Order 2020-35
suspending in-person learning K-12 instruction for the remainder of the 2019-2020 school year. 1
Educators faced the unprecedented challenge to educate all students, with a wide spectrum of
learning needs, who were required to stay in their home. The transition to learning at a distance
was difficult for most school districts, and required a significant transformation to provide
educational services to students. That included providing instruction to students in homes without
internet service, limited access to a digital device, and parents who worked during the day.
Schools continue to address these complex challenges for summer programming, as well as
planning for the 2020-2021 school year. Schools are planning for hybrid instructional models
that will blend in-person and learning at a distance instruction, as well as meeting the physical
and social-emotional needs of their students. The American Association of School
Administrators (AASA) and Association of School Business Officials (ASBO) estimate the
average school district may incur $1,778,139 to reopen this fall to in-person instruction.
1 Available at http://www.legislature.mi.gov/documents/2019-
2020/executiveorder/pdf/2020-EO-35.pdf.
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Declaration of Kyle Guerrant (3:20-cv-04478-SK)
14.
Per Executive Order 2020-35, LEAs were required to submit a Continuity of
Learning Plan (COL) on or before April 28, 2020 to ensure continuation of credits earned for the
remainder of the 2019-2020 school year. Instructions for developing and implementing the COL
Plans were included in Executive Order 2020-65.2 Subject matter experts throughout MDE, who
have assisted LEAs with questions and concerns since the pandemic started, helped LEAs
develop their COL Plans. MDE continues to provide guidance and assistance to LEA’s planning
for the 2020-2021 school year.
15.
Michigan uses official revenue estimates to create its budget. Under normal
circumstances, revenue estimates approved in January and May of each year are used to create the
budgets. But at the State Legislature’s May 2020 revenue conference, revenue estimates, which
were significantly decreased, were deemed not reliable based on all of the unknowns created by
the COVID-19 pandemic. The Legislature decided to recalculate revenue estimates in August
2020. It is expected that the estimates will show severe declines in revenues for both fiscal years
2020 and 2021.
CARES Act Funds Received by Michigan for K-12 Education
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
16.
In order to receive the ESSER funds designated for Michigan and as required by
the Department, I executed a Certification and Agreement form and submitted it to the
Department on behalf of MDE on April 27, 2020.3 A true and correct copy of the Certification
and Agreement completed by MDE and submitted to the Department is attached hereto as Exhibit
A.
17.
Within this Certification and Agreement, MDE agreed to the following terms:
I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of
2 Available at http://www.legislature.mi.gov/documents/2019-
2020/executiveorder/pdf/2020-EO-65.pdf.
3 U.S. Dep’t of Educ., Certification and Agreement for Funding under the Education
Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund (ESSER
Fund), CFDA Number 84.425D, April 24, 2020, available at
https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf.
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Declaration of Kyle Guerrant (3:20-cv-04478-SK)
the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act,
31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted
and amended as regulations of the Department in 2 CFR part 3485; and 18
USC § 1001, as appropriate.
. . .
4. LEAs receiving ESSER funds will provide equitable services to students
and teachers in non-public schools as required under 18005 of Division B
of the CARES Act.
. . .
5. LEA receiving ESSER funds will provide equitable services to students
and teachers in non-public schools located within the LEA in the same
manner as provided under section 1117 of the ESEA, as determined
through timely and meaningful consultation with representatives of non-
public schools.
[Ex. A at pp. 1-2.].
18.
At the time that I executed the Certification and Agreement form, the Department
had not yet published its Guidance Document or the Rule. Accordingly, MDE was unaware that
the Department would subsequently change the required proportional share calculation for
equitable services required under the CARES Act and the private school students eligible to
receive equitable services under the CARES Act.
19.
The Department distributed $389,796,984 in ESSER funds to MDE on April 29,
2020.
20.
MDE announced the ESSER formula grant application on May 8, 2020 for the
purpose of providing LEAs, including charter schools, with emergency relief funds to address the
impact that COVID-19 has had, and continues to have, on elementary and secondary schools
across Michigan. Eligible applicants are those school districts that received a 2019-20 Title I,
Part A allocation from the Michigan Department of Education. The ESSER formula application
consists of assurances, certifications, and narrative statements on the use of funds. Eligible
applicants must initiate an application in the Michigan Electronic Grants System Plus (MEGS+)
and either accept or refuse ESSER funds. Upon successful submission of an ESSER application,
designated MDE staff review each application. Once the application has been reviewed and all
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Declaration of Kyle Guerrant (3:20-cv-04478-SK)
portions of the grant are satisfactory, it is approved. Once approved, the grant is made “Grant
Funds Available” and an approval file is forwarded to the Cash Management System (CMS). The
system then notifies the sub-recipient that the federal funds are available. Funds must be spent on
approved budget items and the funds are drawn by the sub-recipients on a reimbursement basis.
As of July 1, 2020, MDE has approved $82,236,042 to 263 eligible LEAs within Michigan,
which represents 32.1% of LEA eligible to receive ESSER Funds.
21.
Of the 817 eligible applicants there are 554 that have either not completed an
application or not yet been approved. Of these 544, 106 districts have not yet initiated the
application, while another 427 districts are still working on their applications. Upon information
and belief, many districts have not yet submitted their applications as they wait on state budget
details for the 2020-21 school year. Districts have had to determine where their greatest needs
are, include which instructional model(s) the district will implement in the Fall of 2020, as they
consider submitting their ESSER fund application.
22.
Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), LEAs in Michigan would reserve $5,107,921
in ESSER funds to provide equitable services to private-school students and teachers.
23.
However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, see 34 C.F.R. § 76.665(c)(1)(ii), LEAs in
Michigan would reserve $21,604,648.63 in ESSER funds to provide equitable services to private
school students and teachers. Thus, under the Department’s preferred proportional share
calculation, private school students in Michigan would have access to an additional
$16,497,727.63, and public schools would lose this same amount of funds.
B. Governor’s Emergency Education Relief (GEER) Funds
24.
Michigan received $89,432,673 from the GEER Fund on May 19, 2020.
25.
GEER funding has not yet been distributed to LEAs in Michigan as MDE is
awaiting direction from the Governor’s office.
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Declaration of Kyle Guerrant (3:20-cv-04478-SK)
The Department’s Rule Significantly Harms MDE
26.
For every dollar that is diverted from public schools to private schools by LEAs
following the Department’s Guidance Document and the Rule, MDE will be required to backfill
these dollars in the LEAs budgets. At a time when MDE faces an estimated $611,065,000 hole in
its education budget for public education as a result of the pandemic, MDE will need to assist
LEAs find $16,497,727.63 to fill the budgets of public schools that the CARES Act funds were
supposed to fill.
27.
Even if every LEA in Michigan followed Option #1 (Title I-schools only Option)
in proportioning the CARES Act funds for equitable services, MDE will need to assist LEAs with
significant funding for the over 2,000 of non-Title I schools in Michigan that were expecting to
receive CARES Act funds. In addition, MDE will need to assist LEAS with significant funding
for Title I schools that may risk supplanting violations if they use CARES Act funds to supplant
their budgets, which have been slashed due to the pandemic.
28.
This increase in funding for public schools will be required immediately. As
Michigan remains in the throes of the pandemic, public schools remain desperate for funding as
they continue to transition to remote learning and preparing for next school year. Policies and
procedures must be developed for remote learning; teachers must be trained to use remote
learning techniques; technologies must be purchased and provided to students and staff to enable
certain remote learning plans; school buildings must be thoroughly sanitized; and personal
protection equipment (PPE) must be purchased. The costs of reacting to this pandemic are drastic
for public schools and without the funds the CARES Act was intended to provide, MDE must
immediately assist the LEAs adjust to the new realities presented by the pandemic.
29.
Beyond the additional funding that Michigan will be required to expend in lieu of
the designated CARES Act funds, the Department’s Guidance Document and Rule have imposed
signification administrative burdens on MDE directly.
30.
MDE has issued drafted and issued six memoranda to LEAs regarding proportioning
of CARES Act funds. Ten staff members spent approximately 80 hours developing these
memoranda to date.
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31.
MDE staff provided and continue to provide LEAs and schools with extensive
technical assistance, problem solving, and other assistance with completing applications for
funds. Over ten MDE staff were dedicated part-time to this effort.
32.
MDE will assign a manager to be responsible for developing the ESSER funds
monitoring team. The team will be responsible for developing procedures and checklists for all
monitoring activities, including ensure compliance with the Office of Management and Budget 2
CFR 200 Uniform Administrative Requirements, Cost Principles, and Audit requirements for federal
awards, 34 CFR the Education Department General Administrative Regulations, and the terms and
conditions of the ESSER grant award notification. MDE will use its current monitoring processes
for all ESSER grants. The effort for the first year will focus on the ESSER formula grants. This will
include reviewing the delivery of equitable services as it is required in the CARES Act. While some
monitoring requirements are ESSER specific, the program and fiscal monitoring is standard for all
federal grants. MDE’s ESSER subrecipient monitoring program will serve several important
purposes:
a. To ensure that subrecipients of ESSER grants, especially ESSER formula grants,
have appropriate internal controls; promote operating efficiency; and achieve
compliance with applicable statutory and regulatory requirements.
b. To track MDE’s progress in implementing goals of the grant programs.
c. To ensure LEAs/PSAs provide equitable access to students and teachers in non-
public schools as required under the CARES Act, and in accordance with USED
guidance.
d. To identify potential or existing problem areas or weaknesses.
e. To identify areas where additional technical assistance is warranted.
f. To identify areas of strength, as state assets, to build a network to share best practices,
lessons learned, and resources.
Both program and fiscal monitoring will be designed to be conducted as desk reviews. MDE
will develop monitoring protocols with check sheets for each grant program. MDE will request
specific documents to be uploaded into GEMS/MARS for review.
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33.
Finally, the Department’s Guidance Document and Rule place MDE in legal
jeopardy. MDE was required to certify in its ESSER Fund application that it will comply, and
will ensure that LEAs comply, with the equitable services provision of the CARES Act (§ 18005)
and “any other applicable law or regulation.” (Ex. A at p. 1.) Because the Guidance Document
and the Rule require LEAs to calculate the proportional share for equitable services and
determine eligibility of private school students for equitable services contrary to the proportional
share calculation and eligibility requirements in the CARES Act, MDE (and its LEAs) cannot
satisfy both the Rule and the CARES Act. Accordingly, the Department’s Rule forces MDE
choose whether to comply with Section 18005 of the CARES Act or the Guidance Document and
the Rule, either way placing MDE in breach of the certification in the Certification and
Agreement and subjecting MDE to “liability under the False Claims Act, . . . [and the] OMB
Guidelines to agencies on Governmentwide Debarment and Suspension (Nonprocurement).” (Ex.
A at p. 1.)
34.
As the LEAs in Michigan need to use the ESSER funds as soon as possible to
assist with the numerous pandemic-related challenges, this legal jeopardy will impact MDE
immediately.
The Department’s Rule Significantly Harms Michigan’s K-12 Students
35.
The Department’s Guidance and Rule will result in less funding being distributed
to public K-12 schools in Michigan.
36.
If LEAs in Michigan calculate the proportional share of CARES Act funds for
private school students under Option #1 in the Rule, non-Title I schools in LEAs receiving
CARES Act funds will receive no funds. In Michigan, there are over 2000 non-Title I schools in
LEAs that are eligible to receive CARES Act funds that would not receive any funding. Like all
schools in Michigan, these schools are equally impacted by the COVID-19 pandemic and would
greatly benefit from the influx of CARES Act funds to assist them through the pandemic. In
addition, there are approximately 1840 Title I schools in Michigan that would risk supplanting
violations—and future Title I-A funding—if they use CARES Act funds to respond to and
prepare for the pandemic, as the schools cannot supplant State and local funding sources under
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the Rule. This would significantly impact the Title I schools, as many are in desperate need of
additional funding to cope with the pandemic, and to assist students with online, remote learning
tools that students often cannot afford within these Title I schools.
37.
If LEAs in Michigan calculate the proportional share of CARES Act funds for private
school students under Option #2 in the Rule, approximately $16,496,727.63 will be diverted from
public schools to private school students, which represents 7% of Michigan’s total ESSER funding for
education.
a. In Detroit, this amounts to $2,251,130.61 less for public school students, or 2.64
of the total ESSER funds available to the Detroit Community School District;
b. In Grand Rapids, this amounts to $2,643,213.87 less for public school students, or
33.08% of the total ESSER funds available to Grand Rapids Public Schools;
c. In Flint, this amounts to $1,474,676.48 less for public school students, or
15.60% of the total ESSER funds available to Flint Public School District.
38.
For every $259 diverted from the public schools (Title I or non-Title I schools), a
public-school student in Michigan loses out on a needed Chromebook that could allow the student
to access online learning while schools are closed due to the pandemic.
39.
For every $35,339 diverted from the public schools (Title I or non-Title I schools),
a public-school teacher in Flint, Michigan may lose their position and, leaving the district with
fewer resources to provide students with access to learning during the pandemic.
40.
Regardless of how LEAs proportion the CARES Act funds in Michigan, the Rule
requires that all private school students receive equitable services. In Michigan, during the 2019-
2020 school year, approximately 4,580 private school students were eligible to receive equitable
services under Title I-A as they were at-risk students within a LEA receiving Title I-A funds. As
the Rule requires all private school students to receive equitable services, the approximately 4,580
private-school students who received equitable services under Title I-A last year will receive less
services as the CARES Act funds proportioned for equitable services will be spread amongst all
private school students.
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Declaration of Kyle Guerrant (3:20-cv-04478-SK)
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this 16 day of July, 2020, at Lansing, Michigan
________________________________________
KYLE GUERRANT
Deputy Superintendent
Michigan Department of Education
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EXHIBIT A
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Dr. Michael F. Rice, Ph.D
517-241-0494
Mr. Kyle L. Guerrant
Deputy Superintendent, Finance and Operations
P.O Box 30008.
Lansing, MI 48909
517-241-0062
guerrantk@michigan.gov
Michigan
Michigan Department of Education
80-533-6641
Dr. Michael F. Rice, Ph.D
P.O Box 30008, Lansing, MI 48909
04/27/2020
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EXHIBIT 2
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF LISA
CONSTANCIO
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Declaration of Lisa Constancio (3:20-cv-04478-SK)
DECLARATION OF LISA CONSTANCIO
I, Lisa Constancio, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
1.
I am a resident of the State of California and over eighteen years of age, am
competent to testify to the matters contained herein, and testify based on my personal knowledge and
information.
2.
I am the Deputy Superintendent of Public Instruction over the Operations and
Administration Branch at the California Department of Education (CDE). My educational
background includes a Bachelor of Science degree in Psychology from California State University,
Sacramento and a Master’s degree in Organizational Management from the University of Phoenix. I
have been employed by CDE since 2006 and have been in my current position as Deputy
Superintendent since December 1, 2019. While at CDE I have also held Director positions with the
Charter Schools Division and School Fiscal Services Division.
3.
In my role as Deputy Superintendent, I oversee the Charter Schools Division, Fiscal
and Administrative Services Division, Human Resources Division, School Facilities and
Transportation Division, and School Fiscal Services Division.
4.
I submit this Declaration in support of the State of California’s litigation against
Elisabeth D. DeVos, in her official capacity as Secretary of Education; the United States Department
of Education (the Department); and the United States of America regarding the recently issued Rule
entitled CARES Act Programs; Equitable Services to Students and Teachers in Non-Public Schools,
85 Fed. Reg. 39479 (July 1, 2020) (the “Equitable Services Rule” or the “Rule”). I have also
familiarized myself with the Rule in order to understand its immediate impact on the CDE and
public schools in California.
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Declaration of Lisa Constancio (3:20-cv-04478-SK)
CDE’s Work in Education and State’s Education Programs
5.
The State of California is the legal and political entity with plenary responsibility for
educating all California public school students. California has the constitutional responsibility to
establish and maintain the system of common schools and a free education. Under the California
Constitution, the State is responsible for ensuring basic educational equity.
6.
The CDE is a state administrative agency responsible for administering and enforcing
laws related to education throughout California. Cal. Educ. Code §§ 33300, 33301, 33306 & 33308.
7.
California funds and oversees the operation of the largest common system of public
schools in the nation, which serves over 6.2 million children in more than 11,800 schools. In state
fiscal year (FY) 2018–2019, California provided $55.9 billion in General Funds to its 944 public
school districts, 1,277 charter schools, and 58 county offices of education.
8.
For FY 2019-2020, 866 local public school districts, 727 independent charter
schools, and 46 county offices of education were allocated $1.8 billion dollars in Title I-A funds. In
FY 2018-2019, Title I-A funds were expended at 7,074 California public schools.
9.
There are about 2,895 private schools in California, of which at least 1,277 nonprofit
private schools are located in the 157 LEAs which received Title I-A funds and provided Title I
equitable services. Some of the private schools located in Title I-A-recipient LEAs have annual
tuition comparable to private four-year colleges.
The Effect of the COVID-19 Pandemic on Education in California
10.
The COVID-19 pandemic has caused enormous upheaval in California’s K-12
education system.
11.
On March 4, 2020, Governor Newsom declared a state of emergency in California in
response to the COVID-19 pandemic. On March 13, 2020, Governor Newsom signed an executive
order that would allow school districts to shift from a physical classroom environment to a distance-
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Declaration of Lisa Constancio (3:20-cv-04478-SK)
learning environment. On March 19, 2020, Governor Newsom issued a stay at home order for the
entire state.
12.
Against this backdrop, on March 17, 2020, the California Department of Public
Health, in collaboration with CDE, issued guidance to schools shifting to distance learning
environments.
13.
During this period, numerous school districts quickly shifted to distance learning
environments across the state. California school districts have had to rapidly create distance learning
environments for teachers and students; deploy technology, internet access, or instructional material
to students learning at home; provide meals to students who depend on free or reduced price meals
from schools for nutrition; provide suitable special education services to students learning at home;
and respond to the needs of children experiencing trauma or disturbance from the effects of the
COVID-19 pandemic. A limited number of schools have continued to operate or resumed physical
classroom teaching during the pandemic, but many of California’s classroom schools continue to
utilize distance learning. While school districts had broadly planned to resume some level of normal
classroom learning in the coming school year, the recent surge of COVID-19 cases in California
jeopardizes these plans.
14.
CDE continues to monitor the COVID-19 pandemic and is working closely with
school districts and other state agency partners to meet the challenges of the moment. Every week,
CDE has been issuing new updates and guidance to school districts to respond to a rapidly changing
situation. Among other activities, CDE has published guidance documents and conducted webinars
to aid other education partners in addressing subjects like providing distance learning, providing
internet access to students, providing special education in a distance learning setting, and providing
mental health in response to the crisis.
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Declaration of Lisa Constancio (3:20-cv-04478-SK)
15.
California’s fiscal year begins on July 1 of each year, and the State must prepare a
budget for its operations in advance of the fiscal year. Typically, the budget process begins with a
proposal by the Governor in January, a revision in May, and a budget enacted by July 1. The budget
is developed in negotiation with the Legislature.
16.
The COVID-19 pandemic has severely impacted the state’s economy and reduced
the California’s General Fund revenues, which are derived from income tax and sales tax. Section 8
of Article XVI of the California constitution sets forth rules calculating a minimum annual funding
level for K-12 and community college education in California, based on a number of factors
including state tax revenues. Reflecting the sudden economic decline brought about by the COVID-
19 pandemic, the funding provided by this formula dropped $13.9 billion. The Governor and the
Legislature developed a budget to protect local K-12 LEAs by, in part, allocating flexible federal
funding from the CARES Act, including substantial funding not specifically directed to education by
the CARES Act.
CARES Act Funds Received by California For K-12 Education
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
17.
In order to receive the ESSER funds designated for California and as required by the
Department, Dr. Linda Darling-Hammond, President of the California State Board of Education
(SBE) executed a Certification and Agreement form which was jointly submitted by CDE and SBE
to the Department on April 28, 2020.1 A true and correct copy of the Certification and Agreement is
attached hereto as Exhibit A.
18.
Within this Certification and Agreement, SBE agreed to the following terms:
1 U.S. Dep’t of Educ., Certification and Agreement for Funding under the Education
Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund (ESSER
Fund), CFDA Number 84.425D, April 24, 2020, available at
https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf.
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Declaration of Lisa Constancio (3:20-cv-04478-SK)
I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of
the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims
Act, 31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on
Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR
part 180, as adopted and amended as regulations of the Department in 2 CFR
part 3485; and 18 USC § 1001, as appropriate.
. . .
4. LEAs receiving ESSER funds will provide equitable services to students
and teachers in non-public schools as required under 18005 of Division B
of the CARES Act.
. . .
5. LEA receiving ESSER funds will provide equitable services to students
and teachers in non-public schools located within the LEA in the same
manner as provided under section 1117 of the ESEA, as determined
through timely and meaningful consultation with representatives of non-
public schools.
[Ex. A at pp. 1-2.]
19.
At the time that the SBE President executed the Certification and Agreement form,
the Department had not yet published its Guidance Document or the Rule. Accordingly, California
was unaware that the Department would subsequently issue rules to change the required proportional
share calculation for equitable services required under the CARES Act and the private school
students eligible to receive equitable services under the CARES Act.
20.
The Department awarded $1,647,306,127 from the ESSER Fund to California on
May 1, 2020. Under Cal. Education Code sections 12033 and 12034, the State Treasurer is the
custodian of federal grant funds, which are paid out on warrants drawn by the State Controller. Cal.
Const., Article 16, § 7 provides that "[m]oney may be drawn from the Treasury only through an
appropriation made by law and upon a Controller's duly drawn warrant." Therefore, the CDE lacked
authority to expend or distribute any ESSER funds, including subgrants to LEAs, until the
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Legislature enacted a specific appropriation and authorization for that purpose in the budget for the
fiscal year beginning July 1, 2020.
21.
In California, of the ten percent of ESSER funds not distributed to the local entities
by the formula described in section 18003(c) of the CARES Act (“State Reserved ESSER Fund”),
approximately $112.2 million is budgeted to provide up to $0.75 for each breakfast and lunch
provided by LEAs to eligible children due to unanticipated school closures related to COVID-19.
California LEAs participating in the National School Lunch Program, School Breakfast Program,
Summer Seamless Option or Summer Food Service Program that continue to serve meals between
March and August of 2020 are eligible for this funding to help ensure access to nutritious meals.
The federal Child Nutrition Programs provide free and reduce-priced, nutritionally sound meals to
students from low-income families. These funds will enable LEAs to address food insecurity in their
communities due to unanticipated school closures. During the pandemic, some LEAs consolidated
operations within their school districts and with other LEAs to better support their community in
providing meals.
22.
About $45 million of the State Reserved ESSER Fund is budgeted to provide LEAs
with grants to coordinate or expand community schools to increase access to health, mental, health,
and social support for high-need students. These funds will enable improved delivery of mental
health and social-emotionally supportive services for students experiencing the stress, anxiety, and
trauma caused by the COVID-19 pandemic.
23.
About $6 million of the State Reserved ESSER Fund is budgeted to provide educator
professional development for providing high-quality distance learning and addressing learning loss
in mathematics, science, and English language arts due to the COVID-19 pandemic.
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24.
Per section 18003(e) of the CARES Act, up to one-half of one-percent of the ESSER
funds may be retained by CDE to administer the CARES Act education funds. CDE will retain
about one-tenth of one-percent for this purpose.
25.
Specific to Section 18003(c) ESSER funds, as part of California’s Certification and
Agreement for Funding under the Education Stabilization Fund Program Elementary and Secondary
School Emergency Relief Fund, California made assurances that funds will be used for “allowable
purposes in accordance with cash management principals”. In addition, prior to receiving Section
18003(c) ESSER funds, LEAs were required to submit assurances to CDE and the application
deadline to be included in the first apportionment of ESSER was July 15, 2020. To comply with
federal cash management principals, LEAs that submit assurances by July 15, 2020 to the CDE will
receive funding equal to 25 percent of the LEA’s allocation. CDE estimates that LEAs should
receive funds around early September 2020. Thereafter funds will be released consistent with cash
management principals to LEAs as expenditure data is reported to CDE. LEAs that didn’t apply by
July 15, 2020 or newly operational charter schools commencing instruction in the 2020-21 school
year may apply after the initial deadline and will receive funding consistent with the apportionment
methodology outlined previously.
26.
Using the proportional share calculation set forth in Section 1117 of the Elementary
and Secondary Education Act (ESEA), LEAs in California would reserve approximately $5,449,992
in ESSER funds to provide equitable services to private school students.
27.
However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, LEAs in California would reserve approximately
$60,249,538 in ESSER funds to provide equitable services to private school students. Thus, under
the Department’s proportional share calculation, private school students in California would have
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access to an additional $54,799,545 in services, and public schools would lose this same amount of
funds.
B. GEER Funds
28.
California was awarded $355,227,235 from the GEER Fund on May 13, 2020.
29.
In response to the expected negative impact of learning loss from the COVID-19
pandemic and associate school closures, the Governor and Legislature combined the GEER funds
with more than $4.4 billion in Coronavirus Relief Funds provided under section 5001 of the CARES
Act, and $540 million from the State’s general fund, to establish Learning Loss Mitigation Block
Grants. These grants are intended to be distributed to LEAs based on a formula that prioritizes
students expected to be the most heavily impacted by school closures and the pandemic, and are to
be used in a way that is expected to mitigate the negative impact of the pandemic on learning. The
grants may be used to provide instructional support, increase instructional minutes or days, provide
additional academic services for pupils, and provide other integrated supports to address barriers to
learning. A large portion of these funds will be allocated to LEAs based on the number of students
with disabilities requiring instruction outside a regular school program, and another large portion
will be allocated to LEAs based on the concentration of students from low-income families, English
learners, and foster youth. While these funds are directed to LEAs based on a critical need, some of
the students that are intended to be served by the grants may not attend Title I-A eligible schools. As
part of California’s Certification and Agreement for Funding under the Education Stabilization Fund
Program Governor’s Emergency Education Relief Fund, California made assurances that funds will
be used for “allowable purposes in accordance with cash management principals”. In addition, LEAs
will be required to submit assurances to CDE in order to receive an apportionment from the GEER
fund. The assurances are still under development but when available the apportionment process will
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follow a similar structure as the ESSER, Section 18003(c) funding to comply with federal cash
management principals.
The Department’s Rule Significantly Harms California
30.
The Department’s Guidance Document and Rule place California in legal jeopardy.
California was required to certify in its ESSER Fund application that California LEAs will comply
with the equitable service provision of the CARES Act (§ 18005) and “any other applicable law or
regulation.” (Ex. A at p. 1.) Because the Guidance Document and the Rule require LEAs to
calculate the proportional share for equitable services and determine eligibility of private school
students for equitable services contrary to the proportional share calculation and eligibility
requirements in the CARES Act, California (and its LEAs) cannot satisfy both the Rule and the
CARES Act. Accordingly, the Department’s Rule forces California to violate Section 18005 of the
CARES Act, placing California in breach of the certification in the Certification and Agreement and
subjecting California to “liability under the False Claims Act, . . . [and the] OMB Guidelines to
agencies on Governmentwide Debarment and Suspension (Nonprocurement).” (Ex. A at p. 1.)
31.
As the LEAs in California may wish to use the ESSER and GEER funds as soon as
possible to assist with the numerous pandemic-related challenges, this legal jeopardy will impact
California schools immediately.
The Department’s Rule Significantly Harms California’s K-12 Students
32.
The Department’s Guidance and Rule will result in less funding being allocated to
public K-12 schools in California.
33.
If LEAs in California calculate the proportional share of CARES Act funds for
private school students under Option #1 in the Rule, non-Title I schools in LEAs receiving CARES
Act funds will receive no funds. In California, there are approximately 3,057 non-Title I schools in
LEAs that are eligible to receive CARES Act funds that would receive no funding. Like all schools
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in California, these schools are equally impacted by the COVID-19 pandemic and would greatly
benefit from the influx of CARES Act funds to assist them through the pandemic. In addition, there
are approximately 7,043 Title I schools in California that would be prohibited from using CARES
Act funds to respond to and prepare for the pandemic as the schools cannot supplant State and local
funding sources under the Rule. This would significantly impact the Title I schools as many are in
desperate need of additional funding to cope with the pandemic, and to assist students with online,
distance learning tools that students often cannot afford within these Title I schools.
34.
California has allocated a portion of the ESSER program fund retained by the state to
be directed to supplement school meal programs operated during the pandemic. Some of these
moneys will be directed towards supporting school meal programs that support students attending
non-Title I schools.
35.
If LEAs in California calculate the proportional share of CARES Act funds for
private school students under Option #2 in the Rule, approximately $54,799,545 will be diverted
from public schools to private school students.
36.
Regardless of how LEAs proportion the CARES Act funds in California, the Rule
requires that all private school students receive equitable services. In California, during the 2019-
2020 school year, approximately 14,296 private school students were eligible to receive equitable
services under Title I-A as they were at-risk students within a LEA receiving Title I-A funds. As the
Rule requires all private school students receiving equitable services, the approximately 14,296
private school students who received equitable services under Title I-A last year will receive fewer
services as the CARES Act funds proportioned for equitable services will be spread amongst all
private school students.
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EXHIBIT A
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EXHIBIT 3
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF JOHANNA
HOFFMANN
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DECLARATION OF JOHANNA HOFFMANN
I, Johanna Hoffmann, pursuant to 28 U.S.C. § 1746, hereby declare that the following is
true and correct:
1.
I am a resident of California and over the age of 18, competent to testify as to
the matters herein, and make this declaration based on my personal knowledge and
information.
2.
I submit this declaration in support of a motion for preliminary injunction
against enforcement by the United States Department of Education (the “Department”) of its
interim final rule issued on July 1, 2020 (the “IFR” or “Rule”), which changes how funding is
distributed under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). I
have compiled the information in the statements below through my personal knowledge or
based on documents that I have reviewed. In the course of my work, I have attempted to
become familiar with the information contained in the CARES Act sections regarding
elementary school, secondary school and non-public school funding, the Department’s written
guidance pre-dating the IFR (“Guidance Document”), and the IFR.
3.
I have served as a Strategic Resource Planning Specialist for the middle school
network and private school equitable services within the Oakland Unified School District
(OUSD) since September 2019. My responsibilities include preparation and oversight of
OUSD’s provision of services to private schools funded by federal money under Title I of the
Elementary and Secondary Education Act of 1965, as amended most recently in December
2015 as the Every Student Succeeds Act. I survey private schools to determine their intention
to seek to participate in OUSD’s equitable services program and oversee the determination of
which schools will participate and how many students in those schools meet the criteria for
eligibility. I am involved in calculating the amount of funds that OUSD allocates for equitable
services to private schools. I participate in communications with the California Department of
Education (CDE) and the United States Department of Education on equitable services to
private schools as well as training provided by the same.
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GENERAL OVERVIEW OF DISTRICT
4.
OUSD serves approximately 35,865 K-12 public school students at
approximately 83 district-run public schools.
5.
Of that number, 31,043 students (including students who were themselves Title I
eligible and other students) attended 71 schools that received Title I-A funds. OUSD received
$17,598,916 in Title I-A funds received for 2019-20 school year. The number of students who
met the eligibility criteria for Title I-A was 24,461.
6.
According to information submitted by private schools in their annual
affidavit to the CDE and published by the CDE, in 2019-20 there were 5,948 private school
students attending 29 non-profit private schools within the OUSD boundary.
7.
OUSD supports eligible Title I students with Programs through the central
office and at school sites. Centrally, OUSD programs include Summer School, Saturday
School, and Early Childhood Education Programs during the 2019-20 school year. Each
school operating a Schoolwide Title I Program receives an allocation of grant funds with
which to design programs. The School Site Council guides and approves the programs at the
school site on an annual basis.
EFFECTS OF THE COVID-19 PANDEMIC ON EDUCATION IN OUSD
8.
The COVID-19 pandemic has drastically affected K-12 education in OUSD.
9.
The transition to distance learning has been particularly challenging for
OUSD’s lower income students and, because of the high percentage of low-income students
within our district, OUSD is significantly impacted by these challenges. Low-income
students lack technology access, which prevents them from accessing remote learning
materials. OUSD serves a large number of students that lack access to devices and high-
speed internet at home, leaving the students unable to learn remotely without the District or a
District-partner providing them with the necessary devices and internet access. From what we have
seen, private school students are more likely to live in homes with good internet access and
computers. That is supported by survey information such as at https://parents-
together.org/parentstogether-survey-reveals-remote-learning-is-failing-our-most-vulnerable-
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students/?referringSource=articleShare. Additionally, of the 24 private schools interested in
participating in CARES-related equitable services, two schools listed technology purchases
related to supporting distance learning as their lowest need and seven schools did not indicate
a need to technology purchases whatsoever.
10.
Because of COVID-19, distance learning began with the closure of all OUSD
schools on March 16. One of the biggest challenges faced by our students and families has
been the inequitable access to technology and the internet. OUSD schools loaned out more
than 18,000 Chromebooks to students who need them at home, along with hotspots to give
them access to the internet and their education. The majority of students who received these
devices were lower income students.
11.
Since the shelter in place began, and so many families lost jobs, another major
challenge for them has been access to food. OUSD Nutrition Services team has been
supplying meals to OUSD students and their families as well as children in Oakland since
day one. In the past four months, the team has distributed more than 3.5 million student
meals, 450,000 adult meals, nearly 900,000 pounds of groceries, more than 400,000 diapers,
and 13 tons of pet food, among many other things. Here are details from a June press
release: https://t.e2ma.net/message/9due5c/hkkxog.
12.
To make the impact of the pandemic more concrete, I have obtained
information about one public school in the district, Oakland International High School. It
serves Newcomer Immigrant and Refugee students, which is a population of students who
are much more densely situated in Oakland public schools than in neighboring private
schools. Currently, 1 in 7 high school students in Oakland Unified School district is a
Newcomer who has arrived in the United States in the last 3 years. There are virtually no
Newcomer students who are being served by local private schools.
Technology Access Inequities: At the onset of shelter in place, 94% of
OIHS's students either lacked internet connectivity at home, lacked a computer or
tablet, or both. Three staff members worked throughout shelter in place to ensure that
students got donated computers, loaner computers, and hotspots. Once the supply
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chain for internet hotspots was disrupted/overloaded, OIHS supported families with
direct cash assistance in order to upgrade their phones to serve as internet hotspots.
Food Insecurity: 152 OIHS families requested additional emergency food
from Oakland International High School, citing that the food provided by the district's
federal food program was not sufficient to meet their needs, and they could not afford
to buy food due to job losses.
Transportation Access: OIHS conducted 118 individual food dropoffs for
families who had no reliable or safe transportation access during shelter in place.
Because public transportation is limited to 25% capacity for safety reasons, our
families have a very limited ability to access school, work, food, and social services.
Income Insecurity: Of OIHS's 387 enrolled students, 188 families (many of
whom had two or more students at our school), were referred for income insecurity
support during the Spring Semester because they had lost their jobs. These families
were in immediate need of money to buy food, pay their phone bills, and pay rent
(until the rent moratorium was issued. OIHS devoted a tremendous amount of human
resources to fundraise and manage a direct-assistance fund to ensure that students
could eat and had a roof over their head.
13.
The disruption of California’s economy has caused a contraction of the State’s
budget, and the State’s funding for K-12 public schools will be reduced by a substantial
amount that remains to be determined. The disruption is expected to last for the foreseeable
future. Because State funding will be reduced and the cost of providing an education to
students in public schools has substantially increased, the COVID-19 crisis has magnified the
impact of the reduction in the federal funding for public schools that would occur if OUSD
distributes equitable services to private schools based on total student enrollment.
CARES ACT FUNDS ALLOCATED TO OUSD FOR K-12 EDUCATION
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
14.
OUSD applied for money from the California Department of Education (CDE)
for all ESSER funds available on July 13, 2020.
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15.
CDE has provided a preliminary ESSER fund allocation of $14,493,191.00 to
OUSD based upon the proportional share of our Title I award for the 2019-20 school year.
16.
According to the proportional share calculation set forth in Section 1117 of
the Elementary and Secondary Education Act (ESEA), using 2019-20 enrollment for both
OUSD district schools (24,461 eligible students) and eligible private schools (268 eligible
students at 4 schools), the proportional share for equitable services for the 2019-2020 school
year was 1.08% or $190,068.00. Applying this share to OUSD’s anticipated ESSER fund
allocation, the allocation for ESSER equitable services is $156,526.46.
17.
However, the above number does not include consideration of the private
school students (435 at 8 schools) that want to participate in Title I, Part A equitable services
during the 2020-21 school year that did not participate in 2019-2020 nor does it include
private school students (936 at 24 schools) interested in participating only in CARES-related
equitable services.
18.
OUSD had already completed the notification and scheduled initial
consultation with private schools for the 2020-21 school year by the time the CARES Act
became effective. Consequently, we notified private schools within our boundary of the
CARES-related equitable services opportunity after we determined which private schools
would participate during the 2020-21 school year.
19.
As part of my role as Specialist, I initiated the notification and consultation
process with private schools within our district boundary, receiving confirmation from 24
private schools interested in receiving ESSER fund-related equitable services. The estimated
enrollment of low-income students at these 24 schools is 936 for the 2020-21 school year.
We have not yet verified enrollment or low-income eligibility with the 24 private schools
interested in CARES-related equitable services.
20.
OUSD’s ESSER allocation is based upon our 2019-20 Title I award. It would
be consistent for CARES-related equitable services to be based on 2019-20 data, meaning
that OUSD would provide equitable services in the amount of $156,526.46.
21.
OUSD would reserve $156,526.46 in ESSER funds to provide equitable
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services to private school students.
22.
However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, OUSD would reserve $2.160 million in
ESSER funds to provide equitable services to private school students. Thus, under the
Department’s preferred proportional share calculation, private school students within OUSD
boundary would have access to services amounting to an additional $2.160M; an amount that
would be diverted from district schools. I do not believe this was the intent of Congress and
public schools would lose this same amount of funds.
B. Governor’s Emergency Education Relief (GEER) Funds
23.
OUSD has not yet received the amount of its allocation from the Learning
Loss Mitigation Block Grant Fund/GEER Fund. It is my understanding that OUSD’s
allocation of GEER funds would be subject to the same rules as ESSER funds, meaning that
if OUSD is bound by the Department’s guidance and interim rule, a greater portion of our
allocation would be diverted to private school students than would be if OUSD followed the
language in the CARES Act.
USE OF TITLE I FUNDS TO EQUITABLE SERVICES FOR NON-PUBLIC
SCHOOLS
24.
Before the IFR, it was my responsibility to plan for OUSD’s allocation and use
of Title I funding for equitable services to private schools.
25.
When I started working at OUSD, the funding allocations for the 2019 school
year were completed and my role was to assist with management of equitable services. As part
of my role, I began preparing the equitable services program for the 2020-21 school year. To do
so, OUSD sent out notices to eligible private schools. We identified schools by looking at a
directory annually distributed by the State of California and identifying schools within and
bordering our district. Of the 80 schools that received notices, around 8 schools opted to
participate in Title I and 11 total schools opted to participate in at least one of the programs
offered through Titles I-IV.
26.
As part of OUSD’s annual budget development process, which begins in the
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early Spring, I assist with determining the equitable services allocation. The allocation
calculation is determined once a year and is based on the number of eligible Title I private
school students as a percentage of Title I public and private school combined enrollment of
eligible students. We use the enrollment data from the previous year and apply the percentage
to total Title I funding. For example, for the 2020-21 school year, around $300,000 was set
aside for equitable services under Title I. However, administration expenses of around $45,000
were deducted from this amount, so approximately $255,000 was available for Title I equitable
services for the 2020-21 school year.
27.
In order to receive their allocated equitable services, individuals at a private
school (staff and/or teachers) submit requests seeking reimbursement or funding for activities
identified in their needs assessments. Title I private schools must seek approval from OUSD
prior to engaging in the activity and submit verification of participation and/or expenditures
within 10 days after its completion in order to be reimbursed. As the fiscal agent for equitable
services, OUSD cannot provide public funds to any private schools, but rather OUSD
contracts directly with service providers and is only able to reimburse individual teachers
and/or staff for pre-approved and allowable expenditures.
28.
When my colleagues and I initially read the CARES Act, we thought we could
use CARES Act funding to serve any district schools, and that the portion of funding available
for equitable services would be based on Title I eligible students attending private schools in
OUSD’s boundary. We envisioned distributing CARES Act funding to private schools as
described above. Given that our budget development process had already begun, myself and
others planning for the 2020-21 school year relied on the language in the CARES Act for
approximately a month until the Department’s written guidance pre-dating the IFR and the IFR
drastically changed our initial understanding.
29.
In the IFR the Department appears to be giving us additional options for
distributing CARES Act funding between private and public schools, when in fact, the
restrictions in Option 2 essentially swallow any benefit it may purport to provide. The
Department gives us the option to choose to distribute funds either based on Title I low-income
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student proportion (“Option 1”) or in proportion to total student enrollment (“Option 2”) as
long as all CARES funds are used to serve only students and teachers in public schools
participating under Title I. However, if we use any portion of the Act’s funding for non-Title I
schools, then we must distribute funds based on enrollment, irrespective of income. If we elect
to distribute funds based on Title I proportional share, we must comply with supplement not
supplant requirements, which imposes additional restrictions on how we spend the funds.
30.
One example of how the supplement not supplant restriction swallows the Title I
distribution option can be illustrated by OUSD’s efforts to purchase PPE supplies. Under
Option #1 of the IFR, OUSD could use Elementary and Secondary School Emergency Relief
(“ESSER”) funds at our Title I schools only, and we would be unable to use them for the same
materials at our non-Title I schools. Additionally, if anything was paid for with state and/or
local funds during the 2020-21 school year, we cannot then pay for the same thing with Title I
funds during the 2021-22 school year. That the Department waited until April 30, 2020 to issue
guidance and until July 2, 2020 to publish the IFR significantly burdens OUSD since our
budget development process for the 2020-21 school year was complete by that time.
31.
The election to distribute CARES Act funding based on Title I low-income
student proportion also affects our ESSER and GEER funding as it imposes supplement not
supplant restrictions that would not otherwise exist. ESSER and GEERS funds help us assist all
public schools not just Title I schools. Under the Department’s restrictions, low-income
students that are not at a Title I school would be not able to access this funding. Alternatively,
if we elect to distribute equitable services based on total student enrollment, then ESSER and
GEER funding will be diverted from low-income public schools to private school students to
the tune of approximately $2 million. Moreover, the application of the supplement not supplant
restriction in the IFR is in direct contradiction to the Department’s own guidance documents.
ENFORCEMENT OF THE IFR WOULD CAUSE SUBSTANTIAL HARM TO
OUSD
32.
If we were to distribute the CARES Act funds based on low-income private
school pupils, each pupil would receive around $452; however, if we were to distribute the
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CARES Act funds to all private school pupils, then each pupil would receive around $24. Low-
income private school students would receive significantly less funding, which simply cannot
be the result that Congress intended.
33.
Because of the restrictions imposed by the Department in its written guidance
pre-dating the IFR, and the IFR, OUSD has set aside approximately $2.2 million dollars of
ESSER funds for equitable services. Whereas for the 2019-20 school year, 268 of a total of
5,136 pupils from private schools participated in Title I-A, under the restrictions imposed by
the Department, we must allocate equitable services based on total private school pupil
enrollment. This means funding will be diverted from public schools and the distribution per
pupil at private schools will be diluted leaving, the most vulnerable pupils with less assistance.
34.
For every dollar that is diverted from public schools in OUSD as a result of the
Department’s Guidance Document and IFR, OUSD will have fewer dollars to serve district
schools.
35.
The Department’s Guidance and IFR interpretation of the equitable service
requirements represent such a departure from OUSD’s interpretation as well as the guidance
OUSD has received from the CDE and Alameda County Office of Education, we are unsure
how to proceed. While setting aside the $2.2 million difference between two enrollment counts
of eligible private school students participating in equitable services with ESSER funds is an
attempt to ensure we are able to comply with the grant provisions should a final determination
be made that the total private school enrollment count be used, the impact on OUSD students is
immediate. With access to the full amount of the ESSER funds we believe Congress intended
to distribute, OUSD would be able to support our schools and students by immediately having
access to $2.2 million rather than holding those funds in limbo for an undetermined amount of
time.
36.
Enforcement of the IFR also would impose substantial harm on OUSD in the
form of increased effort and expense for administration. Servicing a greater number of private
schools is an administrative burden, which takes time away from servicing public schools.
Similarly, ensuring compliance with supplement not supplant restrictions is administratively
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burdensome and costly. This is time that is being taken away from securing resources and
aiding students. Although the administrative burdens have increased, we are uncertain as to
what percentage of the CARES Act funding we are entitled to set aside to cover administrative
fees.
37.
Administrative fees are not the only aspect of the Department’s guidance that
lacks clarity. In fact, the Department is constantly changing the restrictions on CARES Act
funding to address what they claim to be ambiguities, but instead of addressing actual
ambiguities, the Department has confused what was otherwise clear direction. Doing so is
creating even more uncertainties. We are concerned that auditors will fine us for spending Title
I time on CARES Act funding issues. Instead of addressing issues related to the pandemic, we
are wasting even more time attempting to address auditing concerns.
38.
The Department’s Guidance and IFR will result in less funding being distributed
to public K-12 schools in OUSD.
39.
If OUSD calculates the proportional share of CARES Act funds for private
school students under Option #1 in the IFR, non-Title I schools in OUSD receiving CARES
Act funds will receive no funds. In OUSD, there are approximately 10 non-Title I schools that
are eligible to receive CARES Act funds that would not receive any funding. Like all schools
in OUSD, these schools are affected by the COVID-19 pandemic and would greatly benefit
from the influx of CARES Act funds to assist them through the pandemic.
40.
In addition, there are 71 schools in OUSD receiving Title I-A funding that
would be prohibited under the IFR from using CARES Act funds to respond to and prepare for
the pandemic in ways that would supplant State and local funding sources. For example,
OUSD has relied on other funds and philanthropic gifts for part of the finding for COVI-19
technology response. Supplement not supplant restrictions might be interpreted to apply to
such uses of CARES-Act funding. This would significantly reduce the flexibility of the Title I
schools to meet the specific need created by COVID-19.
41.
The new supplement not supplant requirement of Option #1 has created
significant confusion and administrative burdens for the OUSD, as prior to issuing the IFR, the
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Department had explicitly communicated that supplement not supplant rules did not apply to
CARES Act funds.1 The OUSD budget developed without this requirement in mind will need
to be revamped, and the flexibility in how school districts may use these funds to address
COVID-19 has been significantly curtailed.
42.
For example, if we wanted to buy disinfecting wipes for our schools, we fear that
supplement not supplant restrictions could be interpreted to only be able to spend out of the
ESSER funds and for the other non-Title I schools we would need to look elsewhere for funding.
43.
If OUSD calculates the proportional share of CARES Act funds for private
school students under Option #2 in the IFR, approximately $2.2 million will be diverted from
public schools to private school students, which represents 14.9% of OUSD’s total CARES Act
funding for education.
SUBSTANTIAL CARES ACT FUNDING IS AVAILABLE TO PRIVATE
SCHOOLS BUT NOT TO PUBLIC SCHOOLS
44.
The Department’s stated purpose for equally apportioning CARES Act funding
between public and private schools is that it would be unfair to exclude private schools who
have also been affected by the pandemic. However, non-public entitles, including private
schools, are eligible for a range of support under the CARES Act, including the Paycheck
Protection Program (PPP) loans OUSD cannot benefit from many of the provisions of the
CARES Act that private schools are able to receive. It is my belief that private schools already
receive a greater benefit through PPP loans and various tax credits than OUSD receives via
ESSER and GEER. The scales are already tipped in favor of private schools with the
previously referenced support and would be further and significantly tipped in favor of private
schools should OUSD be required to provide equitable services based on the total number of
students enrolled at private schools within our boundary. Nine of the private schools within
OUSD that are interested in equitable services from CARES Act applied for PPP loans. These
1 U.S. Dep’t of Educ., Elementary and Secondary School Emergency Relief Fund, Frequently
Asked Questions about the Elementary and Secondary School Emergency Relief Fund (ESSER
Fund), available at https://oese.ed.gov/files/2020/05/ESSER-Fund-Frequently-Asked-
Questions.pdf.
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nine schools are eligible to receive between 5.5M and 13.7M in PPP loans. Importantly, these 9
schools serve a total of around 2,500 students, which means that they are receiving almost as
much money as OUSD was allocated in its ESSER fund ($14M) to serve less than a tenth of
the students OUSD serves.
45.
I have read the published IFR, including the Department’s statement that
“Nothing in the CARES Act suggests Congress intended to differentiate between students
based upon the public or non-public nature of their school with respect to eligibility for relief.”
If this statement is understood to suggest that without the IFR’s diversion of money, the non-
public schools would receive too little CARES Act relief compared with public schools, it
cannot be accepted as true. Major categories of CARES ACT relief are available to non-public
schools and denied to public schools. One example is that private schools in OUSD’s
geographic area have obtained loans, which may be forgiven based on meeting requirements
aimed at maintaining employment, under the Payroll Protection Program (PPP).
46.
The United States Department of the Treasury maintains a website at
https://home.treasury.gov/policy-issues/cares-act/assistance-for-small-businesses/sba-
paycheck-protection-program-loan-level-data. It contains listings of the recipients of PPP loans
to date, including one list of recipients of loans less than $150,000 and one of recipients of
loans over $150,000. For loans of over $150,000, the names of the borrowers are disclosed,
along with their NAICS industry codes, locations, and other descriptive information. The
specific loan amounts are not disclosed. Instead, each loan is classified as within a range of
amounts: $150,000-350,000; $350,000-1 million; $1-2 million; $2-5 million; and $5-10
million.
47.
I have reviewed both lists, paying particular attention to recipients of PPP loans
of $150,000 or more located in Oakland, California and classified as NAICS code 611110,
which designates “Elementary and Secondary Schools.” (See https://www.naics.com/naics-
code-description/?code=611110). Public schools are not eligible for PPP loans, so the loan
recipients listed are private schools in Oakland, California. Twenty-seven entities in Oakland
are listed. I have checked the names on the list to remove charter schools and three entities that
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are not primary or secondary schools. The remaining PPP recipients are private (including
parochial and religious) primary and secondary schools that have received at least $7,850,000
in PPP loans. That is the total of the low-end amounts of each reported range for a private, non-
charter school in Oakland that received a loan over $150,000 in NAICS code 611110. Using
the amount in the middle of each reported range, the total would be $13,300,000. The total of
the high-end amounts from the ranges would be $18,750,000. As a reminder, OUSD
anticipates receiving a total of just over $14 million dollars in ESSER funds before equitable
services are calculated and a portion is allocated to private schools.
48.
I have checked for the names of the 24 private schools that have applied for
CARES-funded equitable services on the list of names of recipients of PPP loans of $150,000
or more. Nine of the schools that wish to receive CARES-funded equitable services are listed
as having received a minimum of $5,700,000 in PPP funding. If the actual loan amounts
averaged the midpoint of the reported ranges, the total is $9,700,000. At the top end of the
reported ranges, the PPP funding to these private schools would have been $13,700,000.
49.
For comparison, the entire amount of CARES-Act ESSER funding that OUSD
will receive — for both public and private schools — is $14,492,191. As I have explained
above, under the formula of Section 1117 private schools would receive $157,000 of that
funding, but if the full enrollment of participating private schools is used, we estimate that the
amount would be $2,160,000 —resulting in a diversion of $2 million from funds for OUSD
public schools.
50.
These amounts demonstrate that there is no basis for contending that Congress
made not distinctions between public and non-public schools, and no basis to say that the
proportion of equitable services to private schools pursuant to Section 1117 would leave
privates schools with too little relief under the CARES Act, compared with private schools.
I declare under penalty of perjury pursuant to 28 U.S. Code § 1746 that the foregoing
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EXHIBIT 4
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF NIKKI STEWART
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DECLARATION OF NIKKI STEWART
I, Nikki Stewart, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
1.
I am the Assistant Superintendent of the Division of Systems and Supports, K-12
(SSK12) at the Office of the State Superintendent of Education (OSSE) located in the District of
Columbia. My educational background includes a Bachelor of Arts from Spelman College, a Master
of Arts from the University of Maryland, a Master of Science from Full Sail University, and a
Certification in Public Management from the George Washington University. I have been employed
as Assistant Superintendent of the Division of K-12 Systems and Support since September 2019. I
am an education leader in the District of Columbia, having previously served as a master teacher,
local education agency leader, and statewide assessment developer.
2.
As the Assistant Superintendent of Division of Systems and Supports, K-12
(SSK12), I manage a diverse portfolio of work streams in K-12, overseeing all K-12 federal
education programs and related grants administered in the District of Columbia including the
Title programs under the Elementary and Secondary Education Act, and the Individuals with
Disabilities in Education Act.
3.
I submit this Declaration in support of the District of Columbia’s litigation against
Elisabeth D. DeVos, in her official capacity as Secretary of Education, and the United States
Department of Education (the “Department”); and the United States of America regarding the
recently issued Rule entitled Providing Equitable Services to Students and Teachers in Non-public
Schools, 85 Fed. Reg. 39,479 (July 1, 2020) (the “Equitable Services Rule” or the “Rule”). I have
compiled the information in the statements set forth below through personal knowledge, through
OSSE personnel who have assisted me in gathering this information from our institution, and on the
basis of documents that have been provided to and/or reviewed by me. I have also familiarized
myself with the Rule in order to understand its immediate impact on the Office of the State
Superintendent of Education and public schools in the District of Columbia.
4.
Historically, the District of Columbia Board of Education was the central
policymaking entity on education matters for traditional public schools in DC. The DC School
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Reform Act of 1995 (SRA) established public charter schools in the District of Columbia,
authorized by the DC Public Charter School Board (PSCB), an independent body governed by the
SRA. The State Education Office Establishment Act of 2000 created the office of the State
Superintendent of Education, a state level education agency serving as the District’s liaison to the
U.S. Department of Education and working closely with the District’s traditional and public
charter schools to ensure compliance with local and federal law. In 2007, the Public Education
Reform Amendment Act of 2007 (PERAA) effectuated mayoral control of the District of
Columbia public school system, including the District of Columbia Public Schools (DCPS) and
OSSE. Under the PERAA, DCPS and OSSE are cabinet-level, subordinate agencies under the
Mayor. At the executive level, the Deputy Mayor for Education (DME) provides additional
oversight and partnership for the education sector by working closely with DCPS, PCSB and
OSSE to promote equity and implement District-wide education program goals.
5.
OSSE is the state education agency (SEA) for the District of Columbia charged with
raising the quality of education for all DC residents. As DC’s SEA, OSSE works urgently and
purposefully, in partnership with education and related systems, to sustain, accelerate, and deepen
progress for DC students. OSSE’s vision is to close the achievement gap and ensure people of all
ages and backgrounds are prepared to succeed in school and in life. OSSE’s functions include:
overseeing all federal education programs and related grants administered in the District of
Columbia; developing state-level standards aligned with school, college, and workforce readiness
expectations; ensuring access to high-quality child care and universal pre-kindergarten for eligible
District families; providing resources and support to assist the District’s most vulnerable student
populations; administering the annual Partnership for Assessment of Readiness for College and
Careers (PARCC), the statewide student academic achievement exam; providing regional, door-to-
door transportation to school for District children with special needs; awarding higher education
financial assistance to eligible District students at public and private colleges and universities in DC
and across the country; increasing health and physical education awareness as well as ensuring
access to free meals year-round; providing common, comparable information for families and
educators about all public schools in the District of Columbia through the DC School Report Card.
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6.
The FY 2020 budget for DCPS is $918 million. The FY 2020 budget for public
charter schools is $905 million. School funding starts with a base amount per student, which varies
by grade. Schools receive additional resources for students who are English Language Learners,
special education students, or students at risk of academic failure. The school funding formula—
known as the Uniform Per Student Funding Formula (UPSFF)—applies both to DCPS and public
charter schools.
7.
The District of Columbia has 67 local education agencies (LEAs), including the
DCPS and 66 public charter LEAs serving 93,708 students in 240 schools. 17 percent of students
receive specialized education services; 11 percent of students receive English learner services; and
52.8 percent of students attend DCPS. DCPS served approximately 47,100 pre-kindergarten to
grade 12 students across 108 schools. About half of D.C.’s public school students were considered
to be “at-risk” for academic failure (a local statutory designation covering students receiving public
benefits, experiencing homelessness, being in the foster care system, or being over-age in high
school).
8.
Title I is the largest source of federal funding for public education. Schools
receive Title I funds as part of the Elementary and Secondary Education Act, as amended by
Every Student Succeeds Act (ESSA). Title I funds are used solely to help ensure that children,
regardless of family income, can acquire an equitable and quality education that will allow
students to become academically proficient. A DCPS school is eligible to become a Title I
School-wide Program if 40% or more of the students qualify for free or reduced lunch. Eligible
schools are permitted to use Title I, Part A funds in combination with state and local resources
and other federal education program funds to enhance the educational program of the school and
raise the academic achievement of all students. A DCPS school is eligible to become a Title I
Targeted Assistance Program if 35-40% of the students qualify for free or reduced lunch. The
term “targeted assistance” means that services are provided to a select group of children,
identified as academically failing or most at risk of failing, rather than to all students for overall
school improvement. Schools with fewer than 35% of students eligible for free or reduced lunch
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are considered Non-Title I. DCPS has 87 Title I Schools (86 schoolwide and 1 Targeted
Assistance) and 26 Non-Title I Schools.
9.
The District of Columbia is a unique jurisdiction due to its political status as a
District as opposed to a state. In terms of its relationship with the U.S. Department of Education,
DC is a state but unlike most other states, DC only has one LEA that has an obligation to provide
equitable services to private schools, as the school reform act exempts public charter schools from
this requirement.
10.
DC received $45,198,598.00 of Title I-A funds received for 2019-20 school year.
43 LEAs in DC received Title I-A funds in school year 2019-20 (with 79,587 K-12 students at
those schools, including 52,232 low-income K-12 students).
11.
For the 2020 school year, there were 108 private schools in Washington, District
of Columbia, serving 19,305 students.
Effects of the COVID-19 Pandemic on Education in the District of Columbia
12.
The COVID-19 pandemic has drastically impacted K-12 education in the District
of Columbia.
13.
Due to the COVID-19 pandemic, OSSE has effectuated remote operations, with a
majority of staff moving to telework, as schools also shifted to distance learning. OSSE has
worked closely with DCPS, PSCB, and DME to engage in robust stakeholder engagement to
ensure continued public education service delivery, even in the remote learning environment,
including promulgating emergency regulations, developing policy guidance, and establishing new
health and safety requirements in response to the public health emergency.
14.
The COVID-19 pandemic has had a significant impact on K-12 schools in DC.
School buildings were closed and transportation services discontinued. DCPS deployed distance
learning, and DC public charter schools followed suit. OSSE waived the requirements for in-seat
attendance for the 2019-20 school year by requiring schools to submit distance learning plans that
outlined how schools intended to provide for students’ educational needs in a remote learning
environment, including serving students who may be experiencing challenges with access to
technology, students with disabilities, English language learners and other vulnerable populations.
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15.
OSSE is working closely with the DME, DCPS and the charter sector on
developing policies and plans to support the safe re-opening of schools, with a focus on recovery
of learning loss, which poses a significant risk to vulnerable student populations. OSSE has
issued guiding principles for continuous education that will provide LEAs with resources to
create a coherent academic foundation within their continuous education model in order to uphold
existing academic standards across all grade levels and core content areas while ensuring
continuous use of rigorous curricula and ongoing assessment of student progress.
16.
Due to the economic impact of the pandemic, many of the risk factors experienced
by students and families (employment, poverty, homelessness, etc.) have increased. As of July 6,
2020, DC has 44,312 at risk students, which is nearly a 4% increase since April 6, 2020. This
means that many DCPS students are more vulnerable than ever and any funding intended to
support these students is critical to support their educational stability and success and should be
made available without restriction.
CARES Act Funds Received by District of Columbia for K-12 Education
17.
In order to receive the ESSER funds designated for the District of Columbia and as
required by the Department, the Office of the State Superintendent of Education executed a
Certification and Agreement form and submitted it to the Department on May 6, 2020.1 A true
and correct copy of the Certification and Agreement completed by OSSE and submitted to the
Department is attached hereto as Exhibit A.
18.
Within this Certification and Agreement, the Office of the State Superintendent of
Education agreed to the following terms:
I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of
the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act,
31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted
and amended as regulations of the Department in 2 CFR part 3485; and 18
USC § 1001, as appropriate.
1 U.S. Dep’t of Educ., Certification and Agreement for Funding under the Education
Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund (ESSER
Fund), CFDA Number 84.425D, April 24, 2020, available at
https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf.
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. . .
4. LEAs receiving ESSER funds will provide equitable services to students
and teachers in non-public schools as required under 18005 of Division B
of the CARES Act.
. . .
5. LEA receiving ESSER funds will provide equitable services to students
and teachers in non-public schools located within the LEA in the same
manner as provided under section 1117 of the ESEA, as determined
through timely and meaningful consultation with representatives of non-
public schools.
[Ex. A at pp. 1-2.].
19.
At the time that OSSE executed the Certification and Agreement form, the
Department had not yet published its Guidance Document or the Rule. Accordingly, OSSE was
unaware that the Department would subsequently issue rules to change the required proportional
share calculation for equitable services required under the CARES Act and the private school
students eligible to receive equitable services under the CARES Act.
20.
The Department distributed $42,006,354.00. from the ESSER Fund to OSSE on
May 7, 2020.
21.
Of the ESSER funds received by OSSE, 10% is available for the state to award at its
discretion, based on locally determined needs. For D.C., this is $4,200,635.40. OSSE intends to use
9.95% of these funds contractual needs to be determined in the 2020-21 school year to support
recovery learning in accordance with OSSE’s principles for continuous education. The remainder, a
0.05% administrative set aside permitted by the CARES Act, will be used for data systems and
informational technology infrastructure development.
22.
OSSE provided all eligible LEAs with preliminary CARES-ESSER allocations by
May 14, 2020. DCPS is the only DC LEA subject to equitable services. DCPS’s preliminary
allocation is $21,749,742.49. On July 9, 2020, OSSE awarded DCPS 30 percent of its total
award, $6,524,922.75. Later this summer, OSSE will provide LEAs with final allocations based
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on updates for new and expanding charter schools. LEAs will complete an application later this
summer for FY2021 funds and then in summer 2021 for FY2022 funds, if applicable.
23.
Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), the DCPS would reserve $1,435,483 in
ESSER funds to provide equitable services to private school students.
24.
However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, DCPS would reserve $5,002,440.77 in ESSER
funds to provide equitable services to private school students. Thus, under the Department’s
preferred proportional share calculation, private school students in DC would have access to an
additional $3,566,957.77 and public schools would lose this same amount of funds.
The Department’s Rule Significantly Harms the District of Columbia
25.
COVID-19 places unprecedented operational and fiscal strain on DCPS, and an
effective government response that prioritizes student health and safety, as well as maintains our
academic gains, is required. The $3.6M loss of funding exacerbates that problem at a time when
there is a growing number of at-risk students who are in need of additional educational,
technological, and social/emotional supports. This will require increased resources, including
funding, being directed toward programs supporting vulnerable students and families in the
District. This loss of funding due to the Department’s proposed rule will significantly reduce
DCPS’s ability to adequately serve these students. Even if DCPS followed Option #1 (Title I-
schools only Option) in proportioning the CARES Act funds for equitable services, DC will be
required to provide significant funding to the 26 non-Title I schools in District of Columbia that
were expecting to receive CARES Act funds. In addition, the District would have to identify
local funding to Title I schools impacted by the pandemic that are not allowed to use the CARES
Act funds to supplant their budget.
26.
This increase in funding for public schools will be required immediately. As DC
remains in the throes of the pandemic, public schools remain desperate for funding as they
continue to transition to remote learning and prepare for next school year. Policies and
procedures must be developed for remote learning; teachers must be trained to use remote
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learning techniques; school buildings must be thoroughly sanitized, protective equipment must be
procured, and physical changes to school buildings must be implemented. The costs of reacting
to this pandemic are drastic for public schools and without the funds the CARES Act was
intended to provide, OSSE must immediately assist LEAs to adjust to the new realities presented
by the pandemic.
27.
Beyond the additional funding that the District will be required to expend in lieu of
the designated CARES Act funds, the Department’s Guidance Document and Rule have imposed
signification administrative burdens on OSSE directly.
28.
OSSE staff have collectively spent hundreds of hours navigating communications,
discussing programmatic effects, considering legal implications and participating in inter-agency
engagement regarding CARES Act funding, and the confusing and shifting equitable services
guidance in particular. DCPS has looked to OSSE for clarification and guidance and OSSE SSK-
12 leadership has coordinated closely with the Office of the General Counsel to develop a rational
and legally defensible position that could be communicated to DCPS and discussed with DCPS,
DME and other education stakeholders.
29.
Staff time is a limited, non-renewable resource particularly in the face of staff
shortages due to the hiring freeze imposed because of the pandemic-related budget shortfalls. Thus,
the hours of OSSE staff time that has been dedicated to navigating the equitable services issue thus
far has diverted this precious resource from other pandemic-related challenges including
developing polices for childcare, issuing school re-opening guidance, and finalizing emergency
regulations for other subject matter areas.
30.
As the SEA for the District of Columbia, OSSE is responsible for the distribution
and oversight of state-administered federal education funds. As such, OSSE is responsible for
providing sub-grantees with clear guidance, policies, and technical assistance related to the local
and federal statutes, regulations, and non-regulatory guidance governing its federal education
funds.
31.
As the oversight agency for federal education programs, OSSE uses a risk-based
monitoring process to ensure that LEAs or other sub-recipients meet the requirements of federal
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and local laws and regulations, as applicable and in alignment with OSSE’s Sub-recipient
Monitoring Policy. Each year, OSSE conducts on-site and desktop compliance monitoring for a
select group of sub-recipients, based on a calculation of risk as aligned with OSSE’s Sub-
recipient Monitoring Policy. This process includes record reviews, document reviews, and
interviews which are intended to identify any noncompliance, assess progress toward federal and
local targets, and provide recommendations intended to support continuous improvement.
OSSE’s risk-based monitoring takes two forms: 1) on-site monitoring and 2) desktop monitoring.
OSSE’s monitoring of Title I, Part A includes monitoring for the provision of equitable services,
which involves collecting evidence that DCPS consulted with appropriate private school officials
during the design and development of the program to deliver equitable services on topics
including: (A) how the children's needs will be identified; (B) what services will be offered; (C)
how, where, and by whom the services will be provided; (D) how the services will be
academically assessed and how the results of that assessment will be used to improve those
services; (E) the size and scope of the equitable services to be provided to the eligible private
school children, and the proportion of funds that is allocated under subsection (a)(4) for such
services; (F) the method or sources of data that are used under subsection (c) and section
1113(c)(1) of Title I, Part A to determine the number of children from low‐income families in
participating school attendance areas who attend private schools; (G) how and when the agency
will make decisions about the delivery of services to such children, including a thorough
consideration and analysis of the views of the private school officials on the provision of services
through a contract with potential third‐party providers; and (H) how, if the agency disagrees with
the views of the private school officials on the provision of services through a contract, the local
educational agency will provide in writing to such private school officials an analysis of the
reasons why the local educational agency has chosen not to use a contractor. In addition to
compliance, OSSE’s monitoring process is designed to provide sub-grantees with meaningful
feedback to improve the quality and implementation of their educational programs and to
ultimately raise student achievement in the District of Columbia.
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32.
OSSE will be required to develop and deploy a monitoring tool for CARES Act
funding that will also include equitable services similar to the Title I, Part A monitoring protocol.
Because a greater number of private schools are eligible for funding under the Department’s rule
than would be otherwise, DCPS will be obligated to engage in increased consultation with private
schools that have not participated in Title I, Part A, and OSSE will be required to monitor DCPS
for compliance.
33.
Finally, the Department’s Guidance Document and Rule place OSSE in legal
jeopardy. OSSE was required to certify in its ESSER Fund application that the SEAs and the
LEAs will comply with the equitable service provision of the CARES Act (§ 18005) and “any
other applicable law or regulation.” (Ex. A at p. 1.) Because the Guidance Document and the
Rule require LEAs to calculate the proportional share for equitable services and determine
eligibility of private school students for equitable services contrary to the proportional share
calculation and eligibility requirements in the CARES Act, OSSE and DCPS cannot satisfy both
the Rule and the CARES Act. Accordingly, the Department’s Rule forces OSSE to violate
Section 18005 of the CARES Act, placing OSSE in breach of the certification in the Certification
and Agreement and subjecting OSSE to “liability under the False Claims Act, . . . [and the] OMB
Guidelines to Agencies on Government wide Debarment and Suspension (Nonprocurement).”
(Ex. A at p. 1.)
34.
As DCPS needs to use the ESSER funds as soon as possible to assist with the
numerous pandemic-related challenges, this legal jeopardy will impact OSSE immediately.
The Department’s Rule Significantly Harms the District of Columbia’s K-12 Students
35.
Due to the confusion created by the Department’s interpretation of the equitable
services requirement, DCPS could not immediately plan for CARES-ESSER funds or submit its
application for FY20 funding, which creates pressure and risk for spending funds in fiscal year
2020.
36.
The Department’s Guidance and Rule will result in less funding being distributed
to DCPS.
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37.
If LEAs in the District of Columbia calculate the proportional share of CARES
Act funds for private school students under Option #1 in the Rule, non-Title I schools in LEAs
receiving CARES Act funds will receive no funds. In the District of Columbia, there are
approximately 26 non-Title I schools in LEAs that are eligible to receive CARES Act funds that
would not receive any funding. Like all public schools in DC, these schools are equally impacted
by the COVID-19 pandemic and would greatly benefit from the influx of CARES Act funds to
assist them through the pandemic. In addition, there are approximately 87 Title I DCPS schools
that would be prohibited from using CARES Act funds to respond to and prepare for the
pandemic as the schools cannot supplant State and local funding sources under the Rule. This
would significantly impact the Title I schools as many are in desperate need of additional funding
to cope with the pandemic, and to assist students with online, remote learning tools that students
often cannot afford within these Title I schools.
38.
If DCPS is forced to follow Option #2 in the Rule for proportioning CARES Act
funds, approximately $3,566,957.77 in ESSER funds would be diverted from public school funds in
order to provide equitable services to all private school students. If DCPS distribute the ESSER
moneys in the same manner that Title I-A funds are usually distributed for equitable services based
on low-income private school students, as the plain language of the CARES Act requires, then only
$1,435,483 will be distributed for equitable services to eligible private school students. Thus, if the
Department’s Rule stands and LEAs used Option #2 to proportion their CARES Act funds, a total of
$3,566,957.77 in ESSER moneys will be diverted from low-income public schools to private
school students that are not qualified for Title I-A funds - 12% of the total ESSER moneys that
DC received.
39.
Regardless of how LEAs proportion the CARES Act funds in the District of Columbia,
the Rule requires that all private school students receive equitable services. In DC, during the 2019-
2020 school year, approximately 2,142 private school students were eligible to receive equitable
services under Title I-A as they were at-risk students within a LEA receiving Title I-A funds. As the
Rule requires all private school students receiving equitable services, the approximately 2,142 private
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school students who received equitable services under Title I-A last year will receive less services as
the CARES Act funds proportioned for equitable services will be spread amongst all private school
students.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this ____ day of July, 2020, at __________________________________
_____________________________________
Nikki Stewart
Assistant Superintendent
Division of Systems and Supports, K-12
Office of the State Superintendent of Education
District of Columbia
15th
Washington, DC
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EXHIBIT A
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U.S. Department of Education
Certification and Agreement
for Funding under the
Education Stabilization Fund Program
Elementary and Secondary School Emergency Relief
Fund (ESSER Fund)
CFDA Number: 84.425D
OMB Number: 1810-0743
Expiration Date: 10/31/2020
Paperwork Burden Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless
such collection displays a valid OMB control number. The OMB control number for this information collection is 1810-
0743. The time required to complete this information collection is estimated to average 5 hours per response, including time
for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. The obligation to respond to this collection is required to obtain benefit
under the Coronavirus Aid, Relief, and Economic Security Act. If you have any comments concerning the accuracy of
the time estimate, suggestions for improving this individual collection, or if you have comments or concerns regarding
the status of your individual form, application or survey, please contact Christopher Tate, Office of Elementary and
Secondary Education, U.S. Department of Education, 400 Maryland Ave., S.W., Room 3E229, Washington, D.C. 20202
directly.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 84 of 355
PROGRAM BACKGROUND INFORMATION
Purpose
Under the Elementary and Secondary School Emergency Relief Fund (ESSER Fund), the
Department awards grants to State educational agencies (SEAs) for the purpose of providing local
educational agencies (LEAs), including charter schools that are LEAs, with emergency relief funds
to address the impact that Novel Coronavirus Disease 2019 (COVID-19) has had, and continues to
have, on elementary and secondary schools across the nation. LEAs must provide equitable services
to students and teachers in non-public schools as required under the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act).
Eligibility
SEAs in any of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
Timeline
The SEA will have one year, from the date of its ESSER award, to award funds. Any funds not
awarded by the SEA within one year of receiving its award will be returned to the Department to be
reallocated to other States consistent with the CARES Act.
Uses of Funds
SEAs:
The SEA must use no less than 90 percent of its allocation to make subgrants to LEAs, including
charter schools that are LEAs, based on each LEA’s share of funds received under part A of title I
of the ESEA in fiscal year 2019. With the funds not subgranted to LEAs, the SEA may reserve up
to an amount equal to ½ of 1 percent of the total allocation for administrative costs, and the
remaining funds may be used for emergency needs as determined by the SEA to address issues
responding to COVID-19. These emergency needs may be addressed through the use of grants or
contracts.
LEAs:
LEAs may use funds for any purposes listed in section 18003(d) of the CARES Act. (See Appendix
A.)
Program Contact
For additional information, please contact Christopher Tate by telephone at (202) 453-6047 or by
email at ESSERF@ed.gov.
ii
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CERTIFICATION AND AGREEMENT INSTRUCTIONS
To receive an ESSER Fund allocation, SEAs must submit to the Department the following
information:
x
A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
x
Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
x
Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
x
Other assurances and certifications. (Part D of the Certification and Agreement)
For purposes of this document, the term “Certification and Agreement” is the application that an
SEA is required to file under section 18003(a) of Division B of the CARES Act.
Certification and Agreement Submission Information
An SEA must submit a Certification and Agreement to the Department no later than July 1, 2020.
Please submit your Certification and Agreement to the Department as follows:
Email an electronic version of the ESSER Fund Certification and Agreement in .PDF (Portable
Document Format) to ESSERF@ed.gov.
APPENDICES
Appendix A – Authorizing Statute
Appendix B – State Allocation Table
iii
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ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF
FUND (ESSER FUND)
STATE EDUCATIONAL AGENCY
PART A: CERTIFICATION AND AGREEMENT COVER SHEET
State:
CFDA Number: 84.425D
Legal Name:
DUNS Number:
Chief State School Officer:
Mailing Address:
State Contact for Elementary and Secondary School Emergency Relief Fund:
Position and Office:
Mailing Address:
Telephone:
Email address:
To the best of my knowledge and belief, all the information and data in this agreement are true and correct. I
acknowledge and agree that the failure to comply with all Assurances and Certifications in this Agreement, all
relevant provisions and requirements of the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act, 31 U.S.C. § 3729, et seq.; OMB
Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180,
as adopted and amended as regulations of the Department in 2 CFR part 3485; and 18 USC § 1001, as
appropriate.
Chief State School Officer or Authorized Representative (Typed Name):
Telephone:
Signature of Chief State School Officer or Authorized Representative:
Date:
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
District of Columbia
Office of the State Superintendent of E
603893657
Hanseul Kang
1050 First St. NE, Washington DC 20002
Nikki Stewart
Assistant Superintendent, Systems and Supports, K-12
1050 First St. NE, Washington, DC 20002
(202) 899-6142
nikki.stewart@dc.gov
(202) 355-8088
Hanseul Kang
05/06/2020
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PART B: PROGRAMMATIC, FISCAL, AND REPORTING ASSURANCES
The [Chief State School Officer or his/her authorized representative] assures the following:
1. The SEA will allocate no less than 90 percent of the grant funds under this program to local
educational agencies (LEAs) (including charter schools that are LEAs) in the State. Under the
ESSER Fund, the SEA will award grants by formula to State educational agencies (SEAs) for
the purpose of providing LEAs, including charter schools that are LEAs, with emergency relief
funds to address the impact that the Novel Coronavirus Disease 2019 (COVID-19) has had, and
continues to have, on elementary and secondary schools across the Nation. This includes both
continuing to provide educational services, such as remote learning, while schools and
campuses are closed, and developing and implementing plans for the return to normal
operations. The SEA will allocate these funds to LEAs on the basis of their respective shares of
funds received under title I, part A of the Elementary and Secondary Education Act of 1965 in
fiscal year 2019.
2. The SEA will use the remaining funds (hereafter SEA reserve) for emergency needs as
determined by the SEA to address issues related to COVID-19, which may be addressed through
the use of grants or contracts. From an SEA’s reserve, the SEA may use not more than 1/2 of 1
percent of the SEA’s total grant for administrative costs.
3. The SEA will ensure that LEAs use ESSER funds for activities allowable under section
18003(d) of Division B of the CARES Act. (See Appendix A.)
The Department generally does not consider the following to be an allowable use of ESSER
funds, under any part of 18003: 1) subsidizing or offsetting executive salaries and benefits of
individuals who are not employees of the SEA or LEAs or 2) expenditures related to state or
local teacher or faculty unions or associations.
4. The SEA will ensure that LEAs receiving ESSER funds will provide equitable services to
students and teachers in non-public schools as required under 18005 of Division B of the
CARES Act.
5. The SEA will ensure that an LEA receiving ESSER funds will provide equitable services to
students and teachers in non-public schools located within the LEA in the same manner as
provided under section 1117 of the ESEA, as determined through timely and meaningful
consultation with representatives of non-public schools.
x
The SEA will ensure that a public agency will maintain control of funds for the services
and assistance provided to a non-public school under the ESSER Fund.
x
The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
x
The SEA will ensure that services to a non-public school with ESSER funds will be
provided by a public agency directly, or through contract with, another public or private
entity.
6. The SEA will comply with the maintenance of effort provision in Section 18008(a) of Division
B of the CARES Act absent waiver by the Secretary pursuant to Section 18008(b) thereof.
7. The SEA and each LEA and any other entity that receives ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
2
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any disruptions or closures related to COVID-19 in compliance with Section 18006 of Division
B of the CARES Act. In addition, each entity that accepts funds will continue to pay employees
and contractors to the greatest extent practicable based on the unique financial circumstances of
the entity. CARES Act funds generally will not be used for bonuses, merit pay, or similar
expenditures, unless related to disruptions or closures resulting from COVID-19.
8. The SEA must assure that, when applicable, it will provide technical assistance to LEAs on the
use of ESSER funds for remote learning, which includes both distance education as defined in
section 103(7) of the HEA and distance learning as defined in ESEA section 8101(14), so that
students can continue learning during school closures.
9. The SEA will comply with all reporting requirements, including those in Section 15011(b)(2) of
Division B of the CARES Act, and submit required quarterly reports to the Secretary at such
time and in such manner and containing such information as the Secretary may subsequently
require. (See also 2 CFR 200.327-200.329). The Secretary may require additional reporting in
the future, which may include: the methodology LEAs will use to provide services or assistance
to students and staff in both public and non-public schools, the uses of funds by the LEAs or
other entities and demonstration of their compliance with Section 18003(d), such as any use of
funds addressing the digital divide, including securing access to home-based connectivity and
remote-use devices, related issues in supporting remote learning for all students, including
disadvantaged populations.
10. The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
x
A budget for the SEA’s reserve that includes information about the up to 1/2 of 1 percent
of the SEA’s total grant for administrative costs and the uses of funds for emergency
needs to address issues related to COVID-19; and
x
An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
11. The SEA will ensure that every recipient and subrecipient of ESSER funds will cooperate with
any examination of records with respect to such funds by making records available for
inspection, production, and examination, and authorized individuals available for interview and
examination, upon the request of (i) the Department and/or its Inspector General; or (ii) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
12. The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within 1 year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Signature:
Date:
3
Signature:
05/06/2020
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PART C: USES OF ELEMENTARY AND SECONDARY SCHOOL
EMERGENCY RELIEF FUNDS
Section 18003 of Division B of the CARES Act provides in relevant part that grants awarded under
the Elementary and Secondary School Emergency Relief Fund be used to support the ability of local
educational agencies (LEAs) to continue to provide educational services to their students. The
Department requests the following:
1. Information that the SEA may request LEAs to include in their subgrant applications to the
SEA. For example, an SEA might propose to include the following in developing its subgrant
application:
x
How the LEA will determine its most important educational needs as a result of COVID-
19.
x
The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
x
The extent to which the LEA intends to use ESSER funds to promote remote learning.
x
How the LEA intends to assess and address student learning gaps resulting from the
disruption in educational services.
The above considerations are in addition to the application information requirements from
sections 442 and 427 of the General Education Provisions Act (GEPA) (20 U.S.C. § 1232e and
§ 1228a).
4
We are developing a streamlined application to allow LEAs to access funds quickly and
developing coordinated resources to support LEAs in planning for their current needs as
well as projected needs for the 2020-21 school year and into the future.
In our ESSER application, we will ask LEAs to describe how they plan to spend ESSER
funds and categorize their budgets to allow for tracking and reporting based on state
priorities and allowable costs (e.g., distance learning, recovery learning, support for
students with disabilities, wrap-around services, organizational capacity building,
infrastructure, academic interventions, talent).
We will also collect assurances that LEAs will comply with all applicable federal
requirements, including allowable uses of funds, reporting, financial management,
equitable services, and recordkeeping requirements.
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2. The extent to which the SEA intends to use any portion of its SEA reserve (up to 10 percent of
its ESSER Fund award) to support:
x
technological capacity and access – including hardware and software, connectivity, and
instructional expertise – to support remote learning. If so, please describe the strategies
the SEA intends to use to serve disadvantaged populations listed in Sec. 18003(d)(4) of
the CARES Act; and
x
remote learning by developing new informational and academic resources and
expanding awareness of, and access to, best practices and innovations in remote learning
and support for students, families, and educators.
5
OSSE is currently collecting plans from LEAs that describe their approaches to distance
learning implementation during school closures during the 2019-20 school year. These
plans serve as an important input into assessing needs, including those around
instructional continuity, supporting special populations, and continuing to support
students after the emergency. OSSE plans to use these plans and continue to engage
stakeholders to finalize how best to deploy our ESSER state-level activities funds given
the emergency needs in in our state.
Based on engagement to date, these plans may include additional strategic investments to
pilot innovative models to maximize teaching and learning in this new and challenging
environment; support educator effectiveness; provide instructional supports to students
with disabilities; partner with families and communities; and create and manage secure
technology infrastructure for learning outside the school building.
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PART D: OTHER ASSURANCES AND CERTIFICATIONS
The [Chief State School Officer or his/her authorized representative] assures or certifies the
following:
1. The SEA will comply with all applicable assurances in OMB Standard Forms 424B and D
(Assurances for Non-Construction and Construction Programs), including the assurances
relating to the legal authority to apply for assistance; access to records; conflict of interest; merit
systems; nondiscrimination; Hatch Act provisions; labor standards; flood hazards; historic
preservation; protection of human subjects; animal welfare; lead-based paint; Single Audit Act;
and the general agreement to comply with all applicable Federal laws, executive orders and
regulations.
2. With respect to the certification regarding lobbying in Department Form 80-0013, no Federal
appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with the making or
renewal of Federal grants under this program; the SEAe will complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying,” when required (34 C.F.R. Part 82,
Appendix B); and the SEA will require the full certification, as set forth in 34 C.F.R. Part 82,
Appendix A, in the award documents for all subawards at all tiers.
3. Any LEA receiving funding under this program will have on file with the SEA a set of
assurances that meets the requirements of section 442 of the General Education Provisions Act
(GEPA) (20 U.S.C. 1232e).
4. To the extent applicable, an LEA will include in its local application a description of how the
LEA will comply with the requirements of section 427 of GEPA (20 U.S.C. 1228a). The
description must include information on the steps the LEA proposes to take to permit students,
teachers, and other program beneficiaries to overcome barriers (including barriers based on
gender, race, color, national origin, disability, and age) that impede equal access to, or
participation in, the program.
5. The SEA will comply with the Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (Uniform Guidance) requirements in Subpart D—Post
Federal Award Requirements (2 CFR §§200.300-345) and Subpart E—Cost Principles (2 CFR
§§200.400-475) to ensure that LEAs, including charter schools that are LEAs, are using ESSER
funds for purposes that are reasonable, necessary, and allocable under the CARES Act.
6. The SEA and other entities will comply with the provisions of all applicable acts, regulations
and assurances; the following provisions of Education Department General Administrative
Regulations (EDGAR) 34 CFR parts 76, 77, 81, 82, 84, 97, 98, and 99; the OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part
180, as adopted and amended as regulations of the Department in 2 CFR part 3485; and the
Uniform Guidance in 2 CFR part 200, as adopted and amended as regulations of the Department
in 2 CFR part 3474.
Chief State School Officer or Authorized Representative (Printed Name):
Signature:
Date:
6
Signature:
05/06/2020
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Appendix A: Relevant Excerpts from Title VIII of Division B of the CARES
Act, the Emergency Appropriations for Coronavirus Health Response and
Agency Operations
DEPARTMENT OF EDUCATION
EDUCATION STABILIZATION FUND
For an additional amount for ‘‘Education Stabilization Fund’’, $30,750,000,000, to remain available
through September 30, 2021, to prevent, prepare for, and respond to coronavirus, domestically or
internationally: Provided, That such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency
Deficit Control Act of 1985.
GENERAL PROVISIONS
EDUCATION STABILIZATION FUND
SEC. 18001. (a) ALLOCATIONS.—From the amount made available under this heading in this Act
to carry out the Education Stabilization Fund, the Secretary shall first allocate—
(1) not more than 1/2 of 1 percent to the outlying areas on the basis of their respective needs, as
determined by the Secretary, in consultation with the Secretary of the Interior;
(2) one-half of 1 percent for the Secretary of Interior, in consultation with the Secretary of
Education, for programs operated or funded by the Bureau of Indian Education; and
(3) 1 percent for grants to States with the highest coronavirus burden to support activities under this
heading in this Act, for which the Secretary shall issue a notice inviting applications not later than
30 days of enactment of this Act and approve or deny applications not later than 30 days after
receipt.
(b) RESERVATIONS.—After carrying out subsection (a), the Secretary shall reserve the remaining
funds made available as follows:
(1) 9.8 percent to carry out section 18002 of this title.
(2) 43.9 percent to carry out section 18003 of this title.
(3) 46.3 percent to carry out section 18004 of this title.
ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF FUND
SEC. 18003. (a) GRANTS.—From funds reserved under section 18001(b)(2) of this title, the
Secretary shall make elementary and secondary school emergency relief grants to each State
educational agency with an approved application. The Secretary shall issue a notice inviting
applications not later than 30 days of enactment of this Act and approve or deny applications not
later than 30 days after receipt.
(b) ALLOCATIONS TO STATES.—The amount of each grant under subsection (a) shall be
allocated by the Secretary to each State in the same proportion as each State received under part A
of title I of the ESEA of 1965 in the most recent fiscal year.
(c) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—Each State shall allocate not less
than 90 percent of the grant funds awarded to the State under this section as subgrants to local
educational agencies (including charter schools that are local educational agencies) in the State in
proportion to the amount of funds such local educational agencies and charter schools that are local
educational agencies received under part A of title I of the ESEA of 1965
in the most recent fiscal year.
(d) USES OF FUNDS.—A local educational agency that receives funds under this title may use the
funds for any of the following:
7
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(1) Any activity authorized by the ESEA of 1965, including the Native Hawaiian Education Act and
the Alaska Native Educational Equity, Support, and Assistance Act (20 U.S.C. 6301 et seq.), the
Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) (‘‘IDEA’’), the Adult
Education and Family Literacy Act (20 U.S.C. 1400 et seq.), the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) (‘‘the Perkins Act’’), or subtitle B of title
VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.).
(2) Coordination of preparedness and response efforts of local educational agencies with State,
local, Tribal, and territorial public health departments, and other relevant agencies,
to improve coordinated responses among such entities to prevent, prepare for, and respond to
coronavirus.
(3) Providing principals and others school leaders with the resources necessary to address the needs
of their individual schools.
(4) Activities to address the unique needs of low-income children or students, children with
disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and
foster care youth, including how outreach and service delivery will meet the needs of each
population.
(5) Developing and implementing procedures and systems to improve the preparedness and
response efforts of local educational agencies.
(6) Training and professional development for staff of the local educational agency on sanitation
and minimizing the spread of infectious diseases.
(7) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including
buildings operated by such agency.
(8) Planning for and coordinating during long-term closures, including for how to provide meals to
eligible students, how to provide technology for online learning to all students,
how to provide guidance for carrying out requirements under the Individuals with Disabilities
Education Act (20 U.S.C. 1401 et seq.) and how to ensure other educational services can continue
to be provided consistent with all Federal, State, and local requirements.
(9) Purchasing educational technology (including hardware, software, and connectivity) for students
who are served by the local educational agency that aids in regular and substantive
educational interaction between students and their classroom instructors, including low-income
students and students with disabilities, which may include assistive technology
or adaptive equipment.
(10) Providing mental health services and supports.
(11) Planning and implementing activities related to summer learning and supplemental afterschool
programs, including providing classroom instruction or online learning
during the summer months and addressing the needs of low-income students, students with
disabilities, English learners, migrant students, students experiencing homelessness, and
children in foster care.
(12) Other activities that are necessary to maintain the operation of and continuity of services in
local educational agencies and continuing to employ existing staff of the local educational agency.
(e) STATE FUNDING.—With funds not otherwise allocated under subsection (c), a State may
reserve not more than 1/2 of 1 percent for administrative costs and the remainder for emergency
needs as determined by the state educational agency to address issues responding to coronavirus,
which may be addressed through the use of grants or contracts.
(f) REALLOCATION.—A State shall return to the Secretary any
funds received under this section that the State does not award within 1 year of receiving such funds
and the Secretary shall reallocate such funds to the remaining States in accordance with
subsection (b).
8
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ASSISTANCE TO NON-PUBLIC SCHOOLS
SEC. 18005. (a) IN GENERAL.—A local educational agency receiving funds under sections 18002
or 18003 of this title shall provide equitable services in the same manner as provided under section
1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in
consultation with representatives of non-public schools.
(b) PUBLIC CONTROL OF FUNDS.—The control of funds for the services and assistance
provided to a non-public school under subsection (a), and title to materials, equipment, and property
purchased with such funds, shall be in a public agency, and a public agency shall administer such
funds, materials, equipment, and property and shall provide such services (or may contract for the
provision of such services with a public or private entity).
CONTINUED PAYMENT TO EMPLOYEES
SEC. 18006. A local educational agency, State, institution of higher education, or other entity that
receives funds under ‘‘Education Stabilization Fund’’, shall to the greatest extent practicable,
continue to pay its employees and contractors during the period of any disruptions or closures
related to coronavirus.
DEFINITIONS
SEC. 18007. Except as otherwise provided in sections 18001– 18006 of this title, as used in such
sections—
(1) the terms ‘‘elementary education’’ and ‘‘secondary education’’ have the meaning given such
terms under State law;
(2) the term ‘‘institution of higher education’’ has the meaning given such term in title I of the
Higher Education Act of 1965 (20 U.S.C. 1001 et seq.);
(3) the term ‘‘Secretary’’ means the Secretary of Education;
(4) the term ‘‘State’’ means each of the 50 States, the District of Columbia, and the Commonwealth
of Puerto Rico;
(5) the term ‘‘cost of attendance’’ has the meaning given such term in section 472 of the Higher
Education Act of 1965.
(6) the term ‘‘Non-public school’’ means a non-public elementary and secondary school that (A) is
accredited, licensed, or otherwise operates in accordance with State law; and
(B) was in existence prior to the date of the qualifying emergency for which grants are awarded
under this section;
(7) the term ‘‘public school’’ means a public elementary or secondary school; and
(8) any other term used that is defined in section 8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801) shall have the meaning given the term in such
section.
MAINTENANCE OF EFFORT
SEC. 18008. (a) A State’s application for funds to carry out sections 18002 or 18003 of this title
shall include assurances that the State will maintain support for elementary and secondary
education, and State support for higher education (which shall include State funding to institutions
of higher education and state need based financial aid, and shall 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 provided in the 3 fiscal years
preceding the date of enactment of this Act.
(b) The secretary may waive the requirement in subsection (a) for the purpose of relieving fiscal
burdens on States that have experienced a precipitous decline in financial resources.
9
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REPORTING ON USE OF FUNDS SEC. 15011.
(a) In this section—
(1) the terms ‘‘agency’’, ‘‘appropriate congressional committees’’, ‘‘Committee’’, ‘‘covered
funds’’, and ‘‘Coronavirus response’’ have the meanings given those terms in section 15010;
(2) the term ‘‘covered recipient’’ (A) means any entity that receives large covered funds; and (B)
includes any State, the District of Columbia, and any territory or possession of the United States;
and
(3) the term ‘‘large covered funds’’ means covered funds that amount to more than $150,000.
…
(b)(2) Not later than 10 days after the end of each calendar quarter, each covered recipient shall
submit to the agency and the Committee a report that contains—
(A) the total amount of large covered funds received from the agency;
(B) the amount of large covered funds received that were expended or obligated for each project or
activity;
(C) a detailed list of all projects or activities for which large covered funds were expended or
obligated, including—
(i) the name of the project or activity;
(ii) a description of the project or activity; and
(iii) the estimated number of jobs created or retained by the project or activity, where applicable;
and
(D) detailed information on any level of subcontracts or subgrants awarded by the covered recipient
or its subcontractors or subgrantees, to include the data elements required to comply with the
Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note) allowing
aggregate reporting on awards below $50,000 or to individuals, as prescribed by the Director of the
Office of Management and Budget.
(3) Not later than 30 days after the end of each calendar quarter, the Committee, in consultation
with the agency that made large covered funds available to any covered recipient shall make the
information in reports submitted under paragraph (2) publicly available by posting the information
on the website established under section 15010(g).
(4)(A) Each agency, in coordination with the Committee and the Director of the Office of
Management and Budget shall provide user-friendly means for covered recipients to meet
requirements of this subsection.
(B) Federal agencies may use existing mechanisms to ensure that information under this subsection
is reported accurately.
(c)(1) The Director of the Office of Management and Budget, in consultation with the Secretary of
the Treasury, the Administrator of the Small Business Administration, and the Chairperson of the
Council of Economic Advisors, shall submit to the appropriate congressional committees and
publicly release on the website established under section 15010(g) quarterly reports that detail the
impact of programs funded through large covered funds on employment, estimated economic
growth, and other key economic indicators, including information about impacted industries.
(2)(A) The first report submitted under paragraph (1) shall be submitted not later than 45 days after
the end of the first full quarter following the date of enactment of this Act.
(B) The last report required to be submitted under paragraph (1) shall apply to the quarter in which
the Committee terminates.
10
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APPENDIX B: STATE ALLOCATION TABLE
Elementary and Secondary School Emergency Relief Fund
STATE
STATE
TOTAL
Minimum LEA
Distribution1
Maximum SEA
Reservation
Maximum for
SEA
Administration2
TOTAL
13,229,265,000
11,906,338,500
1,322,926,500
66,146,325
ALABAMA
216,947,540
NVRIOROITUS
ONISVQITRQ
NIMUQITPU
ALASKA
38,407,914
PQIRSTINOP
PIUQMITVN
NVOIMQM
ARIZONA
277,422,944
OQVISUMISRM
OTITQOIOVQ
NIPUTINNR
ARKANSAS
128,758,638
NNRIUUOITTQ
NOIUTRIUSQ
SQPITVP
CALIFORNIA
1,647,306,127
NIQUOIRTRIRNQ
NSQITPMISNP
UIOPSIRPN
COLORADO
120,993,782
NMUIUVQIQMQ
NOIMVVIPTU
SMQIVSV
CONNECTICUT
111,068,059
VVIVSNIORP
NNINMSIUMS
RRRIPQM
DELAWARE
43,492,753
PVINQPIQTU
QIPQVIOTR
ONTIQSQ
DISTRICT OF
COLUMBIA
42,006,354
PTIUMRITNV
QIOMMISPR
ONMIMPO
FLORIDA
770,247,851
SVPIOOPIMSS
TTIMOQITUR
PIURNIOPV
GEORGIA
457,169,852
QNNIQROIUST
QRITNSIVUR
OIOURIUQV
HAWAII
43,385,229
PVIMQSITMS
QIPPUIROP
ONSIVOS
IDAHO
47,854,695
QPIMSVIOOS
QITURIQTM
OPVIOTP
ILLINOIS
569,467,218
RNOIROMIQVS
RSIVQSITOO
OIUQTIPPS
INDIANA
214,472,770
NVPIMORIQVP
ONIQQTIOTT
NIMTOIPSQ
IOWA
71,625,561
SQIQSPIMMR
TINSOIRRS
PRUINOU
KANSAS
84,529,061
TSIMTSINRR
UIQROIVMS
QOOISQR
KENTUCKY
193,186,874
NTPIUSUINUT
NVIPNUISUT
VSRIVPQ
LOUISIANA
286,980,175
ORUIOUOINRU
OUISVUIMNU
NIQPQIVMN
MAINE
43,793,319
PVIQNPIVUT
QIPTVIPPO
ONUIVST
MARYLAND
207,834,058
NUTIMRMISRO
OMITUPIQMS
NIMPVINTM
MASSACHUSETTS
214,894,317
NVPIQMQIUUR
ONIQUVIQPO
NIMTQIQTO
MICHIGAN
389,796,984
PRMIUNTIOUS
PUIVTVISVU
NIVQUIVUR
MINNESOTA
140,137,253
NOSINOPIROU
NQIMNPITOR
TMMISUS
MISSISSIPPI
169,883,002
NROIUVQITMO
NSIVUUIPMM
UQVIQNR
MISSOURI
208,443,300
NUTIRVUIVTM
OMIUQQIPPM
NIMQOIONT
MONTANA
41,295,230
PTINSRITMT
QINOVIROP
OMSIQTS
NEBRASKA
SRIMURIMUR
RUIRTSIRTT
SIRMUIRMV
PORIQOR
NEVADA
117,185,045
NMRIQSSIRQN
NNITNUIRMR
RURIVOR
NEW HAMPSHIRE
37,641,372
PPIUTTIOPR
PITSQINPT
NUUIOMT
NEW JERSEY
310,371,213
OTVIPPQIMVO
PNIMPTINON
NIRRNIURS
NEW MEXICO
NMUIRTQITUS
VTITNTIPMT
NMIURTIQTV
RQOIUTQ
NEW YORK
1,037,045,603
VPPIPQNIMQP
NMPITMQIRSM
RINURIOOU
NORTH CAROLINA
396,311,607
PRSISUMIQQS
PVISPNINSN
NIVUNIRRU
NORTH DAKOTA
33,297,699
OVIVSTIVOV
PIPOVITTM
NSSIQUV
OHIO
489,205,200
QQMIOUQISUM
QUIVOMIROM
OIQQSIMOS
OKLAHOMA
160,950,476
NQQIURRIQOU
NSIMVRIMQU
UMQITRO
1 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
2 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
11
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STATE
STATE
TOTAL
Minimum LEA
Distribution3
Maximum SEA
Reservation
Maximum for
SEA
Administration4
OREGON
121,099,019
NMUIVUVINNT
NOINMVIVMO
SMRIQVR
PENNSYLVANIA
523,807,198
QTNIQOSIQTU
ROIPUMITOM
OISNVIMPS
RHODE ISLAND
46,350,444
QNITNRIQMM
QISPRIMQQ
OPNITRO
SOUTH CAROLINA
216,311,158
NVQISUMIMQO
ONISPNINNS
NIMUNIRRS
SOUTH DAKOTA
41,295,230
PTINSRITMT
QINOVIROP
OMSIQTS
TENNESSEE
259,891,154
OPPIVMOIMPV
ORIVUVINNR
NIOVVIQRS
TEXAS
1,285,886,064
NINRTIOVTIQRU
NOUIRUUISMS
SIQOVIQPM
UTAH
67,821,787
SNIMPVISMU
SITUOINTV
PPVINMV
VERMONT
31,148,360
OUIMPPIROQ
PINNQIUPS
NRRITQO
VIRGINIA
238,599,192
ONQITPVIOTP
OPIURVIVNV
NINVOIVVS
WASHINGTON
216,892,447
NVRIOMPIOMO
ONISUVIOQR
NIMUQIQSO
WEST VIRGINIA
86,640,471
TTIVTSIQOQ
UISSQIMQT
QPPIOMO
WISCONSIN
174,777,774
NRTIOVVIVVT
NTIQTTITTT
UTPIUUV
WYOMING
32,562,651
OVIPMSIPUS
PIORSIOSR
NSOIUNP
PUERTO RICO
349,113,105
PNQIOMNITVR
PQIVNNIPNN
NITQRIRSS
3 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
4 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
12
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EXHIBIT 5
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF WANELLE
KANESHIRO-ERDMANN
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Declaration of Wanelle Kaneshiro-Erdmann (3:20-cv-04478-SK)
DECLARATION OF WANELLE KANESHIRO-ERDMANN
I, Wanelle Kaneshiro-Erdmann, pursuant to 28 U.S.C. § 1746, hereby declare that the following
is true and correct:
1.
I am an official with the Hawaii Department of Education (HIDOE) and my duties
are with its Policy, Innovation, Planning and Evaluation Branch, Office of Strategy Innovation
and Performance. I have been employed with the HIDOE in this current position since June 10,
2019.
2.
My duties include ensuring compliance with federal and state laws involving the
HIDOE.
3.
I submit this Declaration in support of the State of Hawaii’s litigation against
Elisabeth D. DeVos, in her official capacity as Secretary of Education and the United States
Department of Education (the “Department”) regarding the recently issued Rule entitled
Providing Equitable Services to Students and Teachers in Non-public Schools, 85 Fed. Reg.
39,479 (July 1, 2020) (the “Equitable Services Rule” or the “Rule”). I have compiled the
information in the statements set forth below through personal knowledge, through HIDOE
personnel who have assisted me in gathering this information from our institution, on the basis of
documents that have been provided to and/or reviewed by me. I have also familiarized myself
with the Rule in order to understand its immediate impact on HIDOE and public schools in
Hawaii.
4.
The HIDOE is an executive branch agency of the State of Hawaii. Under article
X, section 1 of the Hawaii Constitution and chapter 302A of the Hawaii Revised Statutes, the
HIDOE, under the supervision of its superintendent, Dr. Christina M. Kishimoto, has jurisdiction
over the internal organization, operation, and management of the public school system, as
provided by law, and administers programs of education and public instruction throughout the
State, including education at the preschool, primary, and secondary school levels. Article X,
section 3 of the Hawaii Constitution provides that a board of education is established to have
powers, as provided by law, to formulate statewide educational policy and appoint the
superintendent of education as the chief executive officer of the public school system.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 101 of 355
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Declaration of Wanelle Kaneshiro-Erdmann (3:20-cv-04478-SK)
5.
The HIDOE is a single statewide system of education that performs the functions
of the State Educational Agency (SEA) and the Local Educational Agency (LEA) and is
responsible for managing, regulating, supporting and overseeing the provision of student
educational programs, support programs, the provision of guidance, the applying for and
managing of deferral grants, and the overall day-to-day activities of its public schools. The
HIDOE manages a statewide public school system of over 22,000 employees, with responsibility
for recruiting, hiring, training and providing professional development of its staff to meet the
needs of its public school students. It is involved in all phases of operations from managing the
HIDOE’s budget, seeking federal and state appropriations, compliance with all grants and other
federal and state requirements.
6.
The state funding of K-12 education for the State of Hawaii is accomplished by
annual appropriations made by the Hawaii State Legislature. For fiscal year 2019-2020, the State
appropriated 1.7 billion dollars to the HIDOE.
7.
The HIDOE consists of 294 public schools, organized into 15 complex areas and
the Hawaii State Public Charter School Commission. There are approximately 180,000 students
served by the HIDOE.
8.
The HIDOE constitutes one singular SEA/LEA and receives Title I-A funds for
62,451 students and 181 schools for fiscal year 2019-2020. For school year 2019-2020 that
amount was $51,229,565.
9.
There are 120 private schools within Title I-A LEAs.
10.
The COVID-19 pandemic has drastically impacted K-12 education in Hawaii. It
has caused the premature closure of the 2019-2020 school year and the emergency provision of
alternative educational services. It has required changes to the educational environment in
response to the Governor’s emergency proclamations requiring stay at home-work at home
requirements. Providing distance learning to all students required expenditures of resources to
address students who do not have Internet and other telecommunication capabilities. Planning for
the reopening of schools on August 4, 2020, includes modification of teaching modalities to
include face-to-face, blended and online (virtual) education.
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Declaration of Wanelle Kaneshiro-Erdmann (3:20-cv-04478-SK)
11.
The COVID-19 pandemic has required the diversion of resources to support
statewide remote distance learning, an unanticipated additional cost.
12.
As a result of the pandemic, all schools were closed on March 30, 2020.
13.
Because HIDOE is a unitary SEA and LEA, the impacts mentioned above to the
SEA affected the HIDOE as a LEA, similarly.
14.
The HIDOE as the SEA, provided transition services to its LEA by providing
equipment, training, professional development, and continues to provide meals to all students,
public and private, during this pandemic.
15.
HIDOE is expecting a budget shortfall of state general fund and a probable
restriction of funds imposed by the Governor of Hawaii.
CARES Act Funds Received by HIDOE For K-12 Education
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
16.
In order to receive the ESSER funds designated for Hawaii and as required by the
Department, HIDOE executed a Certification and Agreement form and submitted it to the Department
on May 13, 2020.1 A true and correct copy of the Certification and Agreement completed by HIDOE
and submitted to the Department is attached hereto as Exhibit A.
17.
Within this Certification and Agreement, HIDOE agreed to the following terms:
I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of
the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims
Act, 31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on
Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR
part 180, as adopted and amended as regulations of the Department in 2 CFR
part 3485; and 18 USC § 1001, as appropriate.
. . .
4. LEAs receiving ESSER funds will provide equitable services to students
and teachers in non-public schools as required under 18005 of Division B
of the CARES Act.
1 U.S. Dep’t of Educ., Certification and Agreement for Funding under the Education
Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund (ESSER
Fund), CFDA Number 84.425D, April 24, 2020, available at
https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf.
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Declaration of Wanelle Kaneshiro-Erdmann (3:20-cv-04478-SK)
. . .
5. LEA receiving ESSER funds will provide equitable services to students
and teachers in non-public schools located within the LEA in the same
manner as provided under section 1117 of the ESEA, as determined
through timely and meaningful consultation with representatives of non-
public schools.
[Ex. A at pp. 1-2.].
18.
At the time that HIDOE executed the Certification and Agreement form, the
Department had not yet published its Guidance Document or the Rule. Accordingly, HIDOE was
unaware that the Department would subsequently issue rules to change the required proportional
share calculation for equitable services required under the CARES Act and the private school
students eligible to receive equitable services under the CARES Act.
19.
The Department distributed $43,385,229 from the ESSER Fund to HIDOE on May
14, 2020.
20.
Of the ESSER funds received by HIDOE, HIDOE will not be reserving funds for
administrative costs.
21.
Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), Hawaii would reserve $1,555,931 in ESSER
funds to provide equitable services to private school students.
22.
However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, Hawaii would reserve $2,003,428 in ESSER
funds to provide equitable services to private school students. Thus, under the Department’s
preferred proportional share calculation, private school students in Hawaii would have access to
an additional $447,797 and public schools would lose this same amount of funds.
B. Governor’s Emergency Education Relief (GEER) Funds
23.
Hawaii received $9,993,387 from the GEER Fund on May 5, 2020.
24.
To this date, HIDOE has not received any GEER funds.
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Declaration of Wanelle Kaneshiro-Erdmann (3:20-cv-04478-SK)
The Department’s Rule Significantly Harms HIDOE
25.
For every dollar that is diverted from public schools as a result of the
Department’s Guidance Document and Rule, HIDOE will be required to backfill these dollars in
the HIDOE’s budget. At a time when Hawaii faces a $100.2 million deficit in its education
budget as a result of the pandemic, HIDOE will be required to find $100.2 million to fill the
budgets of public schools that the CARES Act funds were supposed to fill. This increase in
funding for public schools will be required immediately. As Hawaii remains in the throes of the
pandemic, and its main revenue stream, tourism, closed, public schools remain desperate for
funding as they continue to prepare for the opening of schools. Policies and procedures must be
developed for multiple learning options; teachers must be trained to use remote learning
techniques; and school buildings must be inspected and sanitized. All of these initiatives require
moneys not available by present appropriations. The costs of reacting to this pandemic are drastic
for public schools and without the funds the CARES Act was intended to provide the HIDOE will
not be able to provide appropriate educational services for its students.
26.
HIDOE will be required to provide significant funding to the 113 non-Title I
schools in Hawaii that were expecting to receive CARES act funds. In addition, the HIDOE will
be required to provide significant funding to Title I schools that are not allowed to use the
CARES Act funds to supplant their budgets, which have been slashed due to the pandemic.
27.
The Department’s Guidance Document and Rule places the HIDOE in legal
jeopardy. HIDOE was required to certify in its ESSER Fund application that the HIDOE, as the
States SEA and LEA will comply with the equitable service provision of the CARES Act (
Section 18005) and “any other applicable law or regulation.” (Ex. A at pg. 1.) Because the
Guidance Document and the Rule require LEAs to calculate the proportional share for equitable
services and determine eligibility of private school student for equitable services contrary to the
proportional share calculation and eligibility requirements in the CARES Act, HIDOE, as the
SEA and LEA, cannot satisfy both the Rule and the CARES Ac. Accordingly the Department’s
Rule forces the HIDOE to violate Section 18005 of the CARES Act, placing the HIDOE in
breach of the certification in the Certification and Agreement and subjecting the HIDOE to
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Declaration of Wanelle Kaneshiro-Erdmann (3:20-cv-04478-SK)
“liability under the False Claims Act and the OMB Guidelines to agencies on Governmentwide
Debarment and Suspension (Nonprocurement).” (Ex. A at p. 1.)
28.
If HIDOE calculate the proportional share of CARES Act funds for private school
students under Option #1 in the Rule, non-Title I schools in LEAs receiving CARES Act funds
will receive no funds. In Hawaii, there are approximately 113 non-Title I schools in the LEA that
are eligible to receive CARES Act funds that would not receive any funding. Like all schools in
Hawaii, these schools are equally impacted by the COVID-19 pandemic and would greatly
benefit from the influx of CARES Act funds to assist them through the pandemic. In addition,
there are approximately 164 Title I schools that would be prohibited from using CARES Act
funds to respond to and prepare for the pandemic as the schools cannot supplant State and local
funding sources under the Rule. This would significantly impact the Title I schools as many are
in desperate need of additional funding to cope with the pandemic and to assist students with
online, remote learning tools that students often cannot afford within these Title I schools.
29.
Regardless of how LEAs proportion the CARES Act funds in Hawaii, the Rule
requires that all private school students receive equitable services. In Hawaii, during the 2019-
2020 school year, approximately 2,323 private school students were eligible to receive equitable
services under Title I-A as they were at-risk students within the LEA receiving Title I-A funds. As
the Rule requires all private school students receiving equitable services, the approximately 2,323
private school students received equitable services under Title I-A last year will receive less
services as the CARES Act funds proportioned for equitable services will be spread amongst all
private school students.
30.
HIDOE has received a letter from the Hawaii Association of Independent Schools
demanding their fair share of the CARES Act funds.
31.
Beyond the additional funding that Hawaii will be required to expend in lieu of the
designated CARES Act funds, the Department’s Guidance Document and Rule have imposed
significant unbudgeted administrative burdens on HIDOE directly.
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EXHIBIT A
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EXHIBIT 6
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF A. PENDER MAKIN
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EXHIBIT A
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U.S. Department of Education
Certification and Agreement
for Funding under the
Education Stabilization Fund Program
Elementary and Secondary School Emergency Relief
Fund (ESSER Fund)
CFDA Number: 84.425D
OMB Number: 1810-0743
Expiration Date: 10/31/2020
Paperwork Burden Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless
such collection displays a valid OMB control number. The OMB control number for this information collection is 1810-
0743. The time required to complete this information collection is estimated to average 5 hours per response, including time
for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. The obligation to respond to this collection is required to obtain benefit
under the Coronavirus Aid, Relief, and Economic Security Act. If you have any comments concerning the accuracy of
the time estimate, suggestions for improving this individual collection, or if you have comments or concerns regarding
the status of your individual form, application or survey, please contact Christopher Tate, Office of Elementary and
Secondary Education, U.S. Department of Education, 400 Maryland Ave., S.W., Room 3E229, Washington, D.C. 20202
directly.
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PROGRAM BACKGROUND INFORMATION
Purpose
Under the Elementary and Secondary School Emergency Relief Fund (ESSER Fund), the
Department awards grants to State educational agencies (SEAs) for the purpose of providing local
educational agencies (LEAs), including charter schools that are LEAs, with emergency relief funds
to address the impact that Novel Coronavirus Disease 2019 (COVID-19) has had, and continues to
have, on elementary and secondary schools across the nation. LEAs must provide equitable services
to students and teachers in non-public schools as required under the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act).
Eligibility
SEAs in any of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
Timeline
The SEA will have one year, from the date of its ESSER award, to award funds. Any funds not
awarded by the SEA within one year of receiving its award will be returned to the Department to be
reallocated to other States consistent with the CARES Act.
Uses of Funds
SEAs:
The SEA must use no less than 90 percent of its allocation to make subgrants to LEAs, including
charter schools that are LEAs, based on each LEA’s share of funds received under part A of title I
of the ESEA in fiscal year 2019. With the funds not subgranted to LEAs, the SEA may reserve up
to an amount equal to ½ of 1 percent of the total allocation for administrative costs, and the
remaining funds may be used for emergency needs as determined by the SEA to address issues
responding to COVID-19. These emergency needs may be addressed through the use of grants or
contracts.
LEAs:
LEAs may use funds for any purposes listed in section 18003(d) of the CARES Act. (See Appendix
A.)
Program Contact
For additional information, please contact Christopher Tate by telephone at (202) 453-6047 or by
email at ESSERF@ed.gov.
ii
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CERTIFICATION AND AGREEMENT INSTRUCTIONS
To receive an ESSER Fund allocation, SEAs must submit to the Department the following
information:
x
A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
x
Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
x
Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
x
Other assurances and certifications. (Part D of the Certification and Agreement)
For purposes of this document, the term “Certification and Agreement” is the application that an
SEA is required to file under section 18003(a) of Division B of the CARES Act.
Certification and Agreement Submission Information
An SEA must submit a Certification and Agreement to the Department no later than July 1, 2020.
Please submit your Certification and Agreement to the Department as follows:
Email an electronic version of the ESSER Fund Certification and Agreement in .PDF (Portable
Document Format) to ESSERF@ed.gov.
APPENDICES
Appendix A – Authorizing Statute
Appendix B – State Allocation Table
iii
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ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF
FUND (ESSER FUND)
STATE EDUCATIONAL AGENCY
PART A: CERTIFICATION AND AGREEMENT COVER SHEET
State:
CFDA Number: 84.425D
Legal Name:
DUNS Number:
Chief State School Officer:
Mailing Address:
State Contact for Elementary and Secondary School Emergency Relief Fund:
Position and Office:
Mailing Address:
Telephone:
Email address:
To the best of my knowledge and belief, all the information and data in this agreement are true and correct. I
acknowledge and agree that the failure to comply with all Assurances and Certifications in this Agreement, all
relevant provisions and requirements of the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act, 31 U.S.C. § 3729, et seq.; OMB
Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180,
as adopted and amended as regulations of the Department in 2 CFR part 3485; and 18 USC § 1001, as
appropriate.
Chief State School Officer or Authorized Representative (Typed Name):
Telephone:
Signature of Chief State School Officer or Authorized Representative:
Date:
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
Maine
Maine Department of Education
809045545
Pender Makin, Commissioner
Me. Dept. of Education, 23 SHS, Augusta, ME 04333
Chelsey Fortin
Director of Policy & Government Affairs
Maine Department of Education
23 State House Station
Augusta ME 04333-0023
(207) 446-2503
chesley.a.fortin@maine.gov
(207) 446-6847
Pender Makin
04/24/2020
Pender Makin
Digitally signed by Pender Makin
DN: cn Pender Makin, o Maine Department of Education,
ou Commissioner, email pender.makin@maine.gov, c US
Date: 2020.04.24 18:48:05 -04'00'
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PART B: PROGRAMMATIC, FISCAL, AND REPORTING ASSURANCES
The [Chief State School Officer or his/her authorized representative] assures the following:
1. The SEA will allocate no less than 90 percent of the grant funds under this program to local
educational agencies (LEAs) (including charter schools that are LEAs) in the State. Under the
ESSER Fund, the SEA will award grants by formula to State educational agencies (SEAs) for
the purpose of providing LEAs, including charter schools that are LEAs, with emergency relief
funds to address the impact that the Novel Coronavirus Disease 2019 (COVID-19) has had, and
continues to have, on elementary and secondary schools across the Nation. This includes both
continuing to provide educational services, such as remote learning, while schools and
campuses are closed, and developing and implementing plans for the return to normal
operations. The SEA will allocate these funds to LEAs on the basis of their respective shares of
funds received under title I, part A of the Elementary and Secondary Education Act of 1965 in
fiscal year 2019.
2. The SEA will use the remaining funds (hereafter SEA reserve) for emergency needs as
determined by the SEA to address issues related to COVID-19, which may be addressed through
the use of grants or contracts. From an SEA’s reserve, the SEA may use not more than 1/2 of 1
percent of the SEA’s total grant for administrative costs.
3. The SEA will ensure that LEAs use ESSER funds for activities allowable under section
18003(d) of Division B of the CARES Act. (See Appendix A.)
The Department generally does not consider the following to be an allowable use of ESSER
funds, under any part of 18003: 1) subsidizing or offsetting executive salaries and benefits of
individuals who are not employees of the SEA or LEAs or 2) expenditures related to state or
local teacher or faculty unions or associations.
4. The SEA will ensure that LEAs receiving ESSER funds will provide equitable services to
students and teachers in non-public schools as required under 18005 of Division B of the
CARES Act.
5. The SEA will ensure that an LEA receiving ESSER funds will provide equitable services to
students and teachers in non-public schools located within the LEA in the same manner as
provided under section 1117 of the ESEA, as determined through timely and meaningful
consultation with representatives of non-public schools.
x
The SEA will ensure that a public agency will maintain control of funds for the services
and assistance provided to a non-public school under the ESSER Fund.
x
The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
x
The SEA will ensure that services to a non-public school with ESSER funds will be
provided by a public agency directly, or through contract with, another public or private
entity.
6. The SEA will comply with the maintenance of effort provision in Section 18008(a) of Division
B of the CARES Act absent waiver by the Secretary pursuant to Section 18008(b) thereof.
7. The SEA and each LEA and any other entity that receives ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
2
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any disruptions or closures related to COVID-19 in compliance with Section 18006 of Division
B of the CARES Act. In addition, each entity that accepts funds will continue to pay employees
and contractors to the greatest extent practicable based on the unique financial circumstances of
the entity. CARES Act funds generally will not be used for bonuses, merit pay, or similar
expenditures, unless related to disruptions or closures resulting from COVID-19.
8. The SEA must assure that, when applicable, it will provide technical assistance to LEAs on the
use of ESSER funds for remote learning, which includes both distance education as defined in
section 103(7) of the HEA and distance learning as defined in ESEA section 8101(14), so that
students can continue learning during school closures.
9. The SEA will comply with all reporting requirements, including those in Section 15011(b)(2) of
Division B of the CARES Act, and submit required quarterly reports to the Secretary at such
time and in such manner and containing such information as the Secretary may subsequently
require. (See also 2 CFR 200.327-200.329). The Secretary may require additional reporting in
the future, which may include: the methodology LEAs will use to provide services or assistance
to students and staff in both public and non-public schools, the uses of funds by the LEAs or
other entities and demonstration of their compliance with Section 18003(d), such as any use of
funds addressing the digital divide, including securing access to home-based connectivity and
remote-use devices, related issues in supporting remote learning for all students, including
disadvantaged populations.
10. The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
x
A budget for the SEA’s reserve that includes information about the up to 1/2 of 1 percent
of the SEA’s total grant for administrative costs and the uses of funds for emergency
needs to address issues related to COVID-19; and
x
An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
11. The SEA will ensure that every recipient and subrecipient of ESSER funds will cooperate with
any examination of records with respect to such funds by making records available for
inspection, production, and examination, and authorized individuals available for interview and
examination, upon the request of (i) the Department and/or its Inspector General; or (ii) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
12. The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within 1 year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Signature:
Date:
3
4/24/2020
Pender Makin
Digitally signed by Pender Makin
DN: cn Pender Makin, o Maine Department of Education, ou Commissioner, email pender.makin@maine.gov, c US
Date: 2020.04.24 18:48:54 -04'00'
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PART C: USES OF ELEMENTARY AND SECONDARY SCHOOL
EMERGENCY RELIEF FUNDS
Section 18003 of Division B of the CARES Act provides in relevant part that grants awarded under
the Elementary and Secondary School Emergency Relief Fund be used to support the ability of local
educational agencies (LEAs) to continue to provide educational services to their students. The
Department requests the following:
1. Information that the SEA may request LEAs to include in their subgrant applications to the
SEA. For example, an SEA might propose to include the following in developing its subgrant
application:
x
How the LEA will determine its most important educational needs as a result of COVID-
19.
x
The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
x
The extent to which the LEA intends to use ESSER funds to promote remote learning.
x
How the LEA intends to assess and address student learning gaps resulting from the
disruption in educational services.
The above considerations are in addition to the application information requirements from
sections 442 and 427 of the General Education Provisions Act (GEPA) (20 U.S.C. § 1232e and
§ 1228a).
4
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2. The extent to which the SEA intends to use any portion of its SEA reserve (up to 10 percent of
its ESSER Fund award) to support:
x
technological capacity and access – including hardware and software, connectivity, and
instructional expertise – to support remote learning. If so, please describe the strategies
the SEA intends to use to serve disadvantaged populations listed in Sec. 18003(d)(4) of
the CARES Act; and
x
remote learning by developing new informational and academic resources and
expanding awareness of, and access to, best practices and innovations in remote learning
and support for students, families, and educators.
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PART D: OTHER ASSURANCES AND CERTIFICATIONS
The [Chief State School Officer or his/her authorized representative] assures or certifies the
following:
1. The SEA will comply with all applicable assurances in OMB Standard Forms 424B and D
(Assurances for Non-Construction and Construction Programs), including the assurances
relating to the legal authority to apply for assistance; access to records; conflict of interest; merit
systems; nondiscrimination; Hatch Act provisions; labor standards; flood hazards; historic
preservation; protection of human subjects; animal welfare; lead-based paint; Single Audit Act;
and the general agreement to comply with all applicable Federal laws, executive orders and
regulations.
2. With respect to the certification regarding lobbying in Department Form 80-0013, no Federal
appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with the making or
renewal of Federal grants under this program; the SEAe will complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying,” when required (34 C.F.R. Part 82,
Appendix B); and the SEA will require the full certification, as set forth in 34 C.F.R. Part 82,
Appendix A, in the award documents for all subawards at all tiers.
3. Any LEA receiving funding under this program will have on file with the SEA a set of
assurances that meets the requirements of section 442 of the General Education Provisions Act
(GEPA) (20 U.S.C. 1232e).
4. To the extent applicable, an LEA will include in its local application a description of how the
LEA will comply with the requirements of section 427 of GEPA (20 U.S.C. 1228a). The
description must include information on the steps the LEA proposes to take to permit students,
teachers, and other program beneficiaries to overcome barriers (including barriers based on
gender, race, color, national origin, disability, and age) that impede equal access to, or
participation in, the program.
5. The SEA will comply with the Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (Uniform Guidance) requirements in Subpart D—Post
Federal Award Requirements (2 CFR §§200.300-345) and Subpart E—Cost Principles (2 CFR
§§200.400-475) to ensure that LEAs, including charter schools that are LEAs, are using ESSER
funds for purposes that are reasonable, necessary, and allocable under the CARES Act.
6. The SEA and other entities will comply with the provisions of all applicable acts, regulations
and assurances; the following provisions of Education Department General Administrative
Regulations (EDGAR) 34 CFR parts 76, 77, 81, 82, 84, 97, 98, and 99; the OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part
180, as adopted and amended as regulations of the Department in 2 CFR part 3485; and the
Uniform Guidance in 2 CFR part 200, as adopted and amended as regulations of the Department
in 2 CFR part 3474.
Chief State School Officer or Authorized Representative (Printed Name):
Signature:
Date:
6
04/24/2020
Pender Makin
Digitally signed by Pender Makin
DN: cn Pender Makin, o Maine Department of Education, ou Commissioner, email pender.makin@maine.gov, c US
Date: 2020.04.24 18:49:54 -04'00'
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Appendix A: Relevant Excerpts from Title VIII of Division B of the CARES
Act, the Emergency Appropriations for Coronavirus Health Response and
Agency Operations
DEPARTMENT OF EDUCATION
EDUCATION STABILIZATION FUND
For an additional amount for ‘‘Education Stabilization Fund’’, $30,750,000,000, to remain available
through September 30, 2021, to prevent, prepare for, and respond to coronavirus, domestically or
internationally: Provided, That such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency
Deficit Control Act of 1985.
GENERAL PROVISIONS
EDUCATION STABILIZATION FUND
SEC. 18001. (a) ALLOCATIONS.—From the amount made available under this heading in this Act
to carry out the Education Stabilization Fund, the Secretary shall first allocate—
(1) not more than 1/2 of 1 percent to the outlying areas on the basis of their respective needs, as
determined by the Secretary, in consultation with the Secretary of the Interior;
(2) one-half of 1 percent for the Secretary of Interior, in consultation with the Secretary of
Education, for programs operated or funded by the Bureau of Indian Education; and
(3) 1 percent for grants to States with the highest coronavirus burden to support activities under this
heading in this Act, for which the Secretary shall issue a notice inviting applications not later than
30 days of enactment of this Act and approve or deny applications not later than 30 days after
receipt.
(b) RESERVATIONS.—After carrying out subsection (a), the Secretary shall reserve the remaining
funds made available as follows:
(1) 9.8 percent to carry out section 18002 of this title.
(2) 43.9 percent to carry out section 18003 of this title.
(3) 46.3 percent to carry out section 18004 of this title.
ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF FUND
SEC. 18003. (a) GRANTS.—From funds reserved under section 18001(b)(2) of this title, the
Secretary shall make elementary and secondary school emergency relief grants to each State
educational agency with an approved application. The Secretary shall issue a notice inviting
applications not later than 30 days of enactment of this Act and approve or deny applications not
later than 30 days after receipt.
(b) ALLOCATIONS TO STATES.—The amount of each grant under subsection (a) shall be
allocated by the Secretary to each State in the same proportion as each State received under part A
of title I of the ESEA of 1965 in the most recent fiscal year.
(c) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—Each State shall allocate not less
than 90 percent of the grant funds awarded to the State under this section as subgrants to local
educational agencies (including charter schools that are local educational agencies) in the State in
proportion to the amount of funds such local educational agencies and charter schools that are local
educational agencies received under part A of title I of the ESEA of 1965
in the most recent fiscal year.
(d) USES OF FUNDS.—A local educational agency that receives funds under this title may use the
funds for any of the following:
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(1) Any activity authorized by the ESEA of 1965, including the Native Hawaiian Education Act and
the Alaska Native Educational Equity, Support, and Assistance Act (20 U.S.C. 6301 et seq.), the
Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) (‘‘IDEA’’), the Adult
Education and Family Literacy Act (20 U.S.C. 1400 et seq.), the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) (‘‘the Perkins Act’’), or subtitle B of title
VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.).
(2) Coordination of preparedness and response efforts of local educational agencies with State,
local, Tribal, and territorial public health departments, and other relevant agencies,
to improve coordinated responses among such entities to prevent, prepare for, and respond to
coronavirus.
(3) Providing principals and others school leaders with the resources necessary to address the needs
of their individual schools.
(4) Activities to address the unique needs of low-income children or students, children with
disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and
foster care youth, including how outreach and service delivery will meet the needs of each
population.
(5) Developing and implementing procedures and systems to improve the preparedness and
response efforts of local educational agencies.
(6) Training and professional development for staff of the local educational agency on sanitation
and minimizing the spread of infectious diseases.
(7) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including
buildings operated by such agency.
(8) Planning for and coordinating during long-term closures, including for how to provide meals to
eligible students, how to provide technology for online learning to all students,
how to provide guidance for carrying out requirements under the Individuals with Disabilities
Education Act (20 U.S.C. 1401 et seq.) and how to ensure other educational services can continue
to be provided consistent with all Federal, State, and local requirements.
(9) Purchasing educational technology (including hardware, software, and connectivity) for students
who are served by the local educational agency that aids in regular and substantive
educational interaction between students and their classroom instructors, including low-income
students and students with disabilities, which may include assistive technology
or adaptive equipment.
(10) Providing mental health services and supports.
(11) Planning and implementing activities related to summer learning and supplemental afterschool
programs, including providing classroom instruction or online learning
during the summer months and addressing the needs of low-income students, students with
disabilities, English learners, migrant students, students experiencing homelessness, and
children in foster care.
(12) Other activities that are necessary to maintain the operation of and continuity of services in
local educational agencies and continuing to employ existing staff of the local educational agency.
(e) STATE FUNDING.—With funds not otherwise allocated under subsection (c), a State may
reserve not more than 1/2 of 1 percent for administrative costs and the remainder for emergency
needs as determined by the state educational agency to address issues responding to coronavirus,
which may be addressed through the use of grants or contracts.
(f) REALLOCATION.—A State shall return to the Secretary any
funds received under this section that the State does not award within 1 year of receiving such funds
and the Secretary shall reallocate such funds to the remaining States in accordance with
subsection (b).
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ASSISTANCE TO NON-PUBLIC SCHOOLS
SEC. 18005. (a) IN GENERAL.—A local educational agency receiving funds under sections 18002
or 18003 of this title shall provide equitable services in the same manner as provided under section
1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in
consultation with representatives of non-public schools.
(b) PUBLIC CONTROL OF FUNDS.—The control of funds for the services and assistance
provided to a non-public school under subsection (a), and title to materials, equipment, and property
purchased with such funds, shall be in a public agency, and a public agency shall administer such
funds, materials, equipment, and property and shall provide such services (or may contract for the
provision of such services with a public or private entity).
CONTINUED PAYMENT TO EMPLOYEES
SEC. 18006. A local educational agency, State, institution of higher education, or other entity that
receives funds under ‘‘Education Stabilization Fund’’, shall to the greatest extent practicable,
continue to pay its employees and contractors during the period of any disruptions or closures
related to coronavirus.
DEFINITIONS
SEC. 18007. Except as otherwise provided in sections 18001– 18006 of this title, as used in such
sections—
(1) the terms ‘‘elementary education’’ and ‘‘secondary education’’ have the meaning given such
terms under State law;
(2) the term ‘‘institution of higher education’’ has the meaning given such term in title I of the
Higher Education Act of 1965 (20 U.S.C. 1001 et seq.);
(3) the term ‘‘Secretary’’ means the Secretary of Education;
(4) the term ‘‘State’’ means each of the 50 States, the District of Columbia, and the Commonwealth
of Puerto Rico;
(5) the term ‘‘cost of attendance’’ has the meaning given such term in section 472 of the Higher
Education Act of 1965.
(6) the term ‘‘Non-public school’’ means a non-public elementary and secondary school that (A) is
accredited, licensed, or otherwise operates in accordance with State law; and
(B) was in existence prior to the date of the qualifying emergency for which grants are awarded
under this section;
(7) the term ‘‘public school’’ means a public elementary or secondary school; and
(8) any other term used that is defined in section 8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801) shall have the meaning given the term in such
section.
MAINTENANCE OF EFFORT
SEC. 18008. (a) A State’s application for funds to carry out sections 18002 or 18003 of this title
shall include assurances that the State will maintain support for elementary and secondary
education, and State support for higher education (which shall include State funding to institutions
of higher education and state need based financial aid, and shall 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 provided in the 3 fiscal years
preceding the date of enactment of this Act.
(b) The secretary may waive the requirement in subsection (a) for the purpose of relieving fiscal
burdens on States that have experienced a precipitous decline in financial resources.
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REPORTING ON USE OF FUNDS SEC. 15011.
(a) In this section—
(1) the terms ‘‘agency’’, ‘‘appropriate congressional committees’’, ‘‘Committee’’, ‘‘covered
funds’’, and ‘‘Coronavirus response’’ have the meanings given those terms in section 15010;
(2) the term ‘‘covered recipient’’ (A) means any entity that receives large covered funds; and (B)
includes any State, the District of Columbia, and any territory or possession of the United States;
and
(3) the term ‘‘large covered funds’’ means covered funds that amount to more than $150,000.
…
(b)(2) Not later than 10 days after the end of each calendar quarter, each covered recipient shall
submit to the agency and the Committee a report that contains—
(A) the total amount of large covered funds received from the agency;
(B) the amount of large covered funds received that were expended or obligated for each project or
activity;
(C) a detailed list of all projects or activities for which large covered funds were expended or
obligated, including—
(i) the name of the project or activity;
(ii) a description of the project or activity; and
(iii) the estimated number of jobs created or retained by the project or activity, where applicable;
and
(D) detailed information on any level of subcontracts or subgrants awarded by the covered recipient
or its subcontractors or subgrantees, to include the data elements required to comply with the
Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note) allowing
aggregate reporting on awards below $50,000 or to individuals, as prescribed by the Director of the
Office of Management and Budget.
(3) Not later than 30 days after the end of each calendar quarter, the Committee, in consultation
with the agency that made large covered funds available to any covered recipient shall make the
information in reports submitted under paragraph (2) publicly available by posting the information
on the website established under section 15010(g).
(4)(A) Each agency, in coordination with the Committee and the Director of the Office of
Management and Budget shall provide user-friendly means for covered recipients to meet
requirements of this subsection.
(B) Federal agencies may use existing mechanisms to ensure that information under this subsection
is reported accurately.
(c)(1) The Director of the Office of Management and Budget, in consultation with the Secretary of
the Treasury, the Administrator of the Small Business Administration, and the Chairperson of the
Council of Economic Advisors, shall submit to the appropriate congressional committees and
publicly release on the website established under section 15010(g) quarterly reports that detail the
impact of programs funded through large covered funds on employment, estimated economic
growth, and other key economic indicators, including information about impacted industries.
(2)(A) The first report submitted under paragraph (1) shall be submitted not later than 45 days after
the end of the first full quarter following the date of enactment of this Act.
(B) The last report required to be submitted under paragraph (1) shall apply to the quarter in which
the Committee terminates.
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APPENDIX B: STATE ALLOCATION TABLE
Elementary and Secondary School Emergency Relief Fund
STATE
STATE
TOTAL
Minimum LEA
Distribution1
Maximum SEA
Reservation
Maximum for
SEA
Administration2
TOTAL
13,229,265,000
11,906,338,500
1,322,926,500
66,146,325
ALABAMA
216,947,540
195,252,786
21,694,754
1,084,738
ALASKA
38,407,914
34,567,123
3,840,791
192,040
ARIZONA
277,422,944
249,680,650
27,742,294
1,387,115
ARKANSAS
128,758,638
115,882,774
12,875,864
643,793
CALIFORNIA
1,647,306,127
1,482,575,514
164,730,613
8,236,531
COLORADO
120,993,782
108,894,404
12,099,378
604,969
CONNECTICUT
111,068,059
99,961,253
11,106,806
555,340
DELAWARE
43,492,753
39,143,478
4,349,275
217,464
DISTRICT OF
COLUMBIA
42,006,354
37,805,719
4,200,635
210,032
FLORIDA
770,247,851
693,223,066
77,024,785
3,851,239
GEORGIA
457,169,852
411,452,867
45,716,985
2,285,849
HAWAII
43,385,229
39,046,706
4,338,523
216,926
IDAHO
47,854,695
43,069,226
4,785,470
239,273
ILLINOIS
569,467,218
512,520,496
56,946,722
2,847,336
INDIANA
214,472,770
193,025,493
21,447,277
1,072,364
IOWA
71,625,561
64,463,005
7,162,556
358,128
KANSAS
84,529,061
76,076,155
8,452,906
422,645
KENTUCKY
193,186,874
173,868,187
19,318,687
965,934
LOUISIANA
286,980,175
258,282,158
28,698,018
1,434,901
MAINE
43,793,319
39,413,987
4,379,332
218,967
MARYLAND
207,834,058
187,050,652
20,783,406
1,039,170
MASSACHUSETTS
214,894,317
193,404,885
21,489,432
1,074,472
MICHIGAN
389,796,984
350,817,286
38,979,698
1,948,985
MINNESOTA
140,137,253
126,123,528
14,013,725
700,686
MISSISSIPPI
169,883,002
152,894,702
16,988,300
849,415
MISSOURI
208,443,300
187,598,970
20,844,330
1,042,217
MONTANA
41,295,230
37,165,707
4,129,523
206,476
NEBRASKA
65,085,085
58,576,577
6,508,509
325,425
NEVADA
117,185,045
105,466,541
11,718,505
585,925
NEW HAMPSHIRE
37,641,372
33,877,235
3,764,137
188,207
NEW JERSEY
310,371,213
279,334,092
31,037,121
1,551,856
NEW MEXICO
108,574,786
97,717,307
10,857,479
542,874
NEW YORK
1,037,045,603
933,341,043
103,704,560
5,185,228
NORTH CAROLINA
396,311,607
356,680,446
39,631,161
1,981,558
NORTH DAKOTA
33,297,699
29,967,929
3,329,770
166,489
OHIO
489,205,200
440,284,680
48,920,520
2,446,026
OKLAHOMA
160,950,476
144,855,428
16,095,048
804,752
1 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
2 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
11
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STATE
STATE
TOTAL
Minimum LEA
Distribution3
Maximum SEA
Reservation
Maximum for
SEA
Administration4
OREGON
121,099,019
108,989,117
12,109,902
605,495
PENNSYLVANIA
523,807,198
471,426,478
52,380,720
2,619,036
RHODE ISLAND
46,350,444
41,715,400
4,635,044
231,752
SOUTH CAROLINA
216,311,158
194,680,042
21,631,116
1,081,556
SOUTH DAKOTA
41,295,230
37,165,707
4,129,523
206,476
TENNESSEE
259,891,154
233,902,039
25,989,115
1,299,456
TEXAS
1,285,886,064
1,157,297,458
128,588,606
6,429,430
UTAH
67,821,787
61,039,608
6,782,179
339,109
VERMONT
31,148,360
28,033,524
3,114,836
155,742
VIRGINIA
238,599,192
214,739,273
23,859,919
1,192,996
WASHINGTON
216,892,447
195,203,202
21,689,245
1,084,462
WEST VIRGINIA
86,640,471
77,976,424
8,664,047
433,202
WISCONSIN
174,777,774
157,299,997
17,477,777
873,889
WYOMING
32,562,651
29,306,386
3,256,265
162,813
PUERTO RICO
349,113,105
314,201,795
34,911,311
1,745,566
3 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
4 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
12
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EXHIBIT 7
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF KAREN B.
SALMON, PH.D.
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Declaration of Karen B. Salmon (3:20-cv-04478-SK)
DECLARATION OF KAREN B. SALMON, PH.D.
I, Karen B. Salmon, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
1.
I am the State Superintendent of Schools at the Maryland State Department of
Education (“MSDE”) located in Maryland. I have been employed as State Superintendent of
Schools since July 1, 2016.
2.
I am responsible for the administration of the MSDE and have general supervision
of all professional and clerical assistants of the MSDE. I carry out the educational policies of the
State Board of Education, call and conduct conferences of county boards of education and
professional personnel on the condition, needs, and improvement of the schools; and prepare and
publish pamphlets to stimulate public interest in education, promote the work of education and
foster professional insight and efficiency in teachers. I approve contracts for local school systems
to purchase school sites, buildings, remodeling costs, and plans for construction of new school
buildings. My responsibilities include certificating professional personnel in each public school,
and I approve instructional programs in State institutions. I established an Early Childhood
Division within MSDE. I am a member of the Governor’s Executive Council.
3.
I submit this Declaration in support of the State of Maryland’s litigation regarding
the recently issued U.S. Department of Education (“Department”) Rule entitled Providing
Equitable Services to Students and Teachers in Non-public Schools, 85 Fed. Reg. 39,479 (July 1,
2020) (the “Equitable Services Rule” or the “Rule”). I have compiled the information in the
statements set forth below through MSDE personnel who have assisted me in gathering this
information on the basis of documents that have been provided to and/or reviewed by me. I have
also familiarized myself with the Rule in order to understand its immediate impact on the MSDE
and public schools in Maryland.
4.
The Maryland Constitution requires the Maryland Legislature to “establish
throughout the State a thorough and efficient System of Free Public Schools” and “provide by
taxation, or otherwise, for their maintenance.” Md. Const. art. VIII, § 1. By statute, the State
Board of Education is vested with the general care and supervision of public education. Md.
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Declaration of Karen B. Salmon (3:20-cv-04478-SK)
Code Ann., Education §§ 2-201 and 2-205. The State Board determines the educational policies
of the State and enacts regulations for the administration of the public school system. The totality
of statutory provisions gives the State Board the last word on any matter concerning educational
policy or the administration of the system of public education.
5.
Separate from any federal funding, the Maryland General Assembly provided its
24 LEAs with more than $7 billion in operating and capital funds for fiscal year 2020-21. The
1,428 school buildings in these districts educate 909,414 students. While the school districts
exercise primary responsibility over budgetary and other decisions within their respective
districts, the MSDE implements federal and State legislative mandates in education and carries
out the policies of the State Board of Education. See Md. Code Ann., Education, Title 2.
6.
MSDE distributed $219,807,962 of Title I-A funds received for 2019-20 school year
to its LEAs. In Maryland’s 24 LEAs 414 schools, educating 201,777 students are identified as Title
I schools and receive Title I-A funds.
7.
Maryland has 236 private schools, serving 62,204 students, that participate in
Maryland’s nonpublic textbook and technology program and are eligible to participate in Title I-
A equitable services. Maryland has a total of 855 pre-K-12 private and church exempt schools
serving 108,313 students. Under Option #2 of the Department’s rule, Maryland LEAs must
provide equitable services to all 855 private schools and not just for the 236 schools eligible to
participate in Title I-A equitable services.
8.
The COVID-19 pandemic has drastically impacted public education in Maryland.
The closure of schools, starting on March 16, 2020, to slow the spread of the Novel Coronavirus
(COVID-19) in school communities around the State, created challenges for local school systems.
Initially, all schools were closed from Monday, March 16 through Friday, March 27, 2020.
Beginning Monday, March 30, school systems began to implement their continuity of learning
plans. The State Board of Education waived regulations regarding graduation, assessments,
service learning, number of school days, and athletics to allow LEAs flexibility to transition to
continuity of learning environments.
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Families and students throughout the State, and particularly in low income areas,
lacked home computers and devices to access on-line learning. Internet connectivity in poor
urban and rural areas was lacking. Schools needed to purchase devices and access to internet
services. Schools worked around the clock to ensure continuity of learning continued. To meet
student nutrition needs, schools served millions of meals.
10.
MSDE provided LEAs technical assistance and guidance for developing continuity
of learning plans. I met with each of the LEA superintendents regularly to ensure the transition to
on-line and virtual instruction. MSDE personnel worked tirelessly to ensure the 24 LEAs had
timely and accurate guidance to implement continuity of learning. I am part of the Maryland
Governor’s team to ensure a unified response and strategy to addresses the pandemic.
11.
The economic crisis resulting from the pandemic cannot be overstated. MSDE is
expecting the Maryland Department of Budget and Management to propose a $200,000,000
reduction in education funding for fiscal year 2021.
CARES Act Funds Received by Maryland For K-12 Education
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
12.
In order to receive the ESSER funds designated for Maryland and as required by
the Department, the MSDE executed a Certification and Agreement form and submitted it to the
Department on April 24, 2020. A true and correct copy of the Certification and Agreement
completed by the MSDE and submitted to the Department is attached hereto as Exhibit A.
13.
Within this Certification and Agreement, the MSDE agreed to the following terms:
I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of
the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act,
31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on Government wide
Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted
and amended as regulations of the Department in 2 CFR part 3485; and 18
USC § 1001, as appropriate.
. . .
4. LEAs receiving ESSER funds will provide equitable services to students
and teachers in non-public schools as required under 18005 of Division B
of the CARES Act.
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. . .
5. LEA receiving ESSER funds will provide equitable services to students
and teachers in non-public schools located within the LEA in the same
manner as provided under section 1117 of the ESEA, as determined
through timely and meaningful consultation with representatives of non-
public schools.
[Ex. A at pp. 1-2.].
14.
At the time that the MSDE executed the Certification and Agreement form, the
Department had not yet published its Guidance Document or the Rule. Accordingly, the MSDE
was unaware that the Department would subsequently issue rules to change the required
proportional share calculation for equitable services required under the CARES Act and the
private school students eligible to receive equitable services under the CARES Act.
15.
The Department approved MSDE’s application and distributed $207,834,058 from
the ESSER Fund to the MSDE on April 29, 2020. MSDE intends to retain $20,783,406 as
permitted by the CARES Act to improve the virtual learning opportunities in Maryland. To
accomplish this, Maryland will develop on-line courses for students, on-line professional
development for teachers, collaborate with regional stakeholder in developing virtual schools.
16.
To obtain ESSR funds, LEAs were required to submit an application to MSDE for
review and approval before receipt of Notice of Grant Award. To date, the MSDE has distributed
$185,043,226 to 23 eligible LEAs within Maryland, which represents 99% of the funds to the LEAs
eligible to receive ESSER Funds. Corrections to the remaining school system’s application is
expected shortly, and the funds will be released pending the corrections.
17.
Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), LEAs in Maryland would reserve an
estimated $2,508,760 in ESSER funds to provide equitable services to private school students in
the 236 private schools eligible to participate.
18.
However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, LEAs in Maryland would reserve
approximately $18,143,913 in ESSER funds to provide equitable services to private school
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students in the 855 private schools in the State. Thus, under the Department’s preferred
proportional share calculation, private school students in Maryland would have access to an
additional approximately $15,000,000 of ESSER funds, and public schools would lose this same
amount of funds. These amounts could change based on the actual number of participating
private schools.
B. Governor’s Emergency Education Relief (GEER) Funds
19.
Maryland received $45,700,000 from the GEER Fund on April 22, 2020. MSDE
received $10,000,000 to be distributed to LEAs for technology projects. Other funds are expected
to be distributed for additional technology projects. Those funds have not yet been distributed to
the LEAs in Maryland.
20.
If LEAs in Maryland calculate the proportional share of CARES Act funds for
private school students under Option #1 in the Rule, non-Title I schools in LEAs receiving
CARES Act funds will receive no funds. In Maryland, within LEAs that are eligible to receive
CARES Act funds, there are approximately 1,014 non-Title I schools that would not receive any
funding under Option #1. Like all schools in Maryland, these schools are equally impacted by the
COVID-19 pandemic and would greatly benefit from the influx of CARES Act funds to assist
them through the pandemic.
21.
Even if every LEA in Maryland followed Option #1 (Title I-schools only Option)
in proportioning the CARES Act funds for equitable services, the non-Title I schools are not
allowed to use other State or local funds to supplant or supplement their budgets. Non-Title I
schools will suffer increased harms because they cannot add any additional funding to help them
deal with the expenses resulting from the pandemic.
22.
In the face of expected $200,000,000 finding cuts from the State and anticipated
cuts by local governments, Maryland’s public schools remain desperate for funding as they
continue to prepare for next school year. The costs of reacting to this pandemic are drastic for
public schools and without the funds the CARES Act was intended to provide, essential funding
may not be available for all of the additional equipment, training, and staff needed to reopen
schools in the midst of the pandemic.
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23.
Beyond the additional funding that Maryland will be required to expend in lieu of
the designated CARES Act funds, the Department’s Guidance Document and Rule have imposed
significant administrative burdens on the MSDE directly. MSDE fiscal policy personnel spent a
minimum of 100 hours of time developing technical assistance guidance, providing LEAs data,
training materials, memoranda, letters, webinars, and sample documents regarding proportioning
the CARES Act funds. MSDE personnel gave technical assistance to LEAs through webinars,
guidance documents, sample documents, and individual assistance through email and telephone
calls.
24.
MSDE fiscal policy personnel worked over and above the responsibilities in their
normal job descriptions to ensure LEAs were given timely and accurate information in an ever
changing and complex environment. They completed this work in addition to other priorities
necessitated by the pandemic and normal business operations.
25.
MSDE delayed for a month distributing funding due to confusion created by the
Department’s interpretation of the equitable service requirements. Now that the ESSR funds have
been distributed, MSDE personnel will coordinate monitoring and oversight of the CARES funds.
MSDE will have to collect and maintain the documents submitted by the LEAs.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this ____ day of July, 2020
________________________________________
Karen B. Salmon
State Superintendent of Schools
________
_ ________
____
_ _____
_
_
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EXHIBIT A
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U.S. Department of Education
Certification and Agreement
for Funding under the
Education Stabilization Fund Program
Elementary and Secondary School Emergency Relief
Fund (ESSER Fund)
CFDA Number: 84.425D
OMB Number: 1810-0743
Expiration Date: 10/31/2020
Paperwork Burden Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless
such collection displays a valid OMB control number. The OMB control number for this information collection is 1810-
0743. The time required to complete this information collection is estimated to average 5 hours per response, including time
for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. The obligation to respond to this collection is required to obtain benefit
under the Coronavirus Aid, Relief, and Economic Security Act. If you have any comments concerning the accuracy of
the time estimate, suggestions for improving this individual collection, or if you have comments or concerns regarding
the status of your individual form, application or survey, please contact Christopher Tate, Office of Elementary and
Secondary Education, U.S. Department of Education, 400 Maryland Ave., S.W., Room 3E229, Washington, D.C. 20202
directly.
Exhibit A
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ii
PROGRAM BACKGROUND INFORMATION
Purpose
Under the Elementary and Secondary School Emergency Relief Fund (ESSER Fund), the
Department awards grants to State educational agencies (SEAs) for the purpose of providing local
educational agencies (LEAs), including charter schools that are LEAs, with emergency relief funds
to address the impact that Novel Coronavirus Disease 2019 (COVID-19) has had, and continues to
have, on elementary and secondary schools across the nation. LEAs must provide equitable services
to students and teachers in non-public schools as required under the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act).
Eligibility
SEAs in any of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
Timeline
The SEA will have one year, from the date of its ESSER award, to award funds. Any funds not
awarded by the SEA within one year of receiving its award will be returned to the Department to be
reallocated to other States consistent with the CARES Act.
Uses of Funds
SEAs:
The SEA must use no less than 90 percent of its allocation to make subgrants to LEAs, including
charter schools that are LEAs, based on each LEA’s share of funds received under part A of title I
of the ESEA in fiscal year 2019. With the funds not subgranted to LEAs, the SEA may reserve up
to an amount equal to ½ of 1 percent of the total allocation for administrative costs, and the
remaining funds may be used for emergency needs as determined by the SEA to address issues
responding to COVID-19. These emergency needs may be addressed through the use of grants or
contracts.
LEAs:
LEAs may use funds for any purposes listed in section 18003(d) of the CARES Act. (See Appendix
A.)
Program Contact
For additional information, please contact Christopher Tate by telephone at (202) 453-6047 or by
email at ESSERF@ed.gov.
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CERTIFICATION AND AGREEMENT INSTRUCTIONS
To receive an ESSER Fund allocation, SEAs must submit to the Department the following
information:
x A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
x Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
x Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
x Other assurances and certifications. (Part D of the Certification and Agreement)
For purposes of this document, the term “Certification and Agreement” is the application that an
SEA is required to file under section 18003(a) of Division B of the CARES Act.
Certification and Agreement Submission Information
An SEA must submit a Certification and Agreement to the Department no later than July 1, 2020.
Please submit your Certification and Agreement to the Department as follows:
Email an electronic version of the ESSER Fund Certification and Agreement in .PDF (Portable
Document Format) to ESSERF@ed.gov.
APPENDICES
Appendix A – Authorizing Statute
Appendix B – State Allocation Table
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ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF
FUND (ESSER FUND)
STATE EDUCATIONAL AGENCY
PART A: CERTIFICATION AND AGREEMENT COVER SHEET
State: Maryland
CFDA Number: 84.425D
Legal Name:
Maryland State Department of Education
DUNS Number:
001969443
Chief State School Officer:
Karen B. Salmon, Ph.D.
Mailing Address:
200 West Baltimore Street
Baltimore, Maryland 21201
To the best of my knowledge and belief, all the information and data in this agreement are true and correct. I
acknowledge and agree that the failure to comply with all Assurances and Certifications in this Agreement, all
relevant provisions and requirements of the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act, 31 U.S.C. § 3729, et seq.; OMB
Guidelines to Agencies on Government wide Debarment and Suspension (Nonprocurement) in 2 CFR part 180,
as adopted and amended as regulations of the Department in 2 CFR part 3485; and 18 USC § 1001, as
appropriate.
Chief State School Officer or Authorized Representative (Typed Name):
Telephone:
Karen B. Salmon, Ph.D.
410-767-0462
Signature of Chief State School Officer or Authorized Representative:
Date:
April 24, 2020
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
State Contact for Elementary and Secondary School Emergency Relief Fund: Amalie Brandenburg
Position and Office: Deputy Superintendent, Office of Finance
Mailing Address: 200 West Baltimore Street
Baltimore, Maryland 21201
Telephone: 410-767-0011
Email address: amalie.brandenburg@maryland.gov
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PART B: PROGRAMMATIC, FISCAL, AND REPORTING ASSURANCES
The [Chief State School Officer or his/her authorized representative] assures the following:
1. The SEA will allocate no less than 90 percent of the grant funds under this program to local
educational agencies (LEAs) (including charter schools that are LEAs) in the State. Under the
ESSER Fund, the SEA will award grants by formula to State educational agencies (SEAs) for
the purpose of providing LEAs, including charter schools that are LEAs, with emergency relief
funds to address the impact that the Novel Coronavirus Disease 2019 (COVID-19) has had, and
continues to have, on elementary and secondary schools across the Nation. This includes both
continuing to provide educational services, such as remote learning, while schools and
campuses are closed, and developing and implementing plans for the return to normal
operations. The SEA will allocate these funds to LEAs on the basis of their respective shares of
funds received under title I, part A of the Elementary and Secondary Education Act of 1965 in
fiscal year 2019.
2. The SEA will use the remaining funds (hereafter SEA reserve) for emergency needs as
determined by the SEA to address issues related to COVID-19, which may be addressed through
the use of grants or contracts. From an SEA’s reserve, the SEA may use not more than 1/2 of 1
percent of the SEA’s total grant for administrative costs.
3. The SEA will ensure that LEAs use ESSER funds for activities allowable under section
18003(d) of Division B of the CARES Act. (See Appendix A.)
The Department generally does not consider the following to be an allowable use of ESSER
funds, under any part of 18003: 1) subsidizing or offsetting executive salaries and benefits of
individuals who are not employees of the SEA or LEAs or 2) expenditures related to state or
local teacher or faculty unions or associations.
4. The SEA will ensure that LEAs receiving ESSER funds will provide equitable services to
students and teachers in non-public schools as required under 18005 of Division B of the
CARES Act.
5. The SEA will ensure that an LEA receiving ESSER funds will provide equitable services to
students and teachers in non-public schools located within the LEA in the same manner as
provided under section 1117 of the ESEA, as determined through timely and meaningful
consultation with representatives of non-public schools.
x The SEA will ensure that a public agency will maintain control of funds for the services
and assistance provided to a non-public school under the ESSER Fund.
x The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
x The SEA will ensure that services to a non-public school with ESSER funds will be
provided by a public agency directly, or through contract with, another public or private
entity.
6. The SEA will comply with the maintenance of effort provision in Section 18008(a) of Division
B of the CARES Act absent waiver by the Secretary pursuant to Section 18008(b) thereof.
7. The SEA and each LEA and any other entity that receives ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
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3
any disruptions or closures related to COVID-19 in compliance with Section 18006 of Division
B of the CARES Act. In addition, each entity that accepts funds will continue to pay employees
and contractors to the greatest extent practicable based on the unique financial circumstances of
the entity. CARES Act funds generally will not be used for bonuses, merit pay, or similar
expenditures, unless related to disruptions or closures resulting from COVID-19.
8. The SEA must assure that, when applicable, it will provide technical assistance to LEAs on the
use of ESSER funds for remote learning, which includes both distance education as defined in
section 103(7) of the HEA and distance learning as defined in ESEA section 8101(14), so that
students can continue learning during school closures.
9. The SEA will comply with all reporting requirements, including those in Section 15011(b)(2) of
Division B of the CARES Act, and submit required quarterly reports to the Secretary at such
time and in such manner and containing such information as the Secretary may subsequently
require. (See also 2 CFR 200.327-200.329). The Secretary may require additional reporting in
the future, which may include: the methodology LEAs will use to provide services or assistance
to students and staff in both public and non-public schools, the uses of funds by the LEAs or
other entities and demonstration of their compliance with Section 18003(d), such as any use of
funds addressing the digital divide, including securing access to home-based connectivity and
remote-use devices, related issues in supporting remote learning for all students, including
disadvantaged populations.
10. The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
x A budget for the SEA’s reserve that includes information about the up to 1/2 of 1 percent
of the SEA’s total grant for administrative costs and the uses of funds for emergency
needs to address issues related to COVID-19; and
x An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
11. The SEA will ensure that every recipient and subrecipient of ESSER funds will cooperate with
any examination of records with respect to such funds by making records available for
inspection, production, and examination, and authorized individuals available for interview and
examination, upon the request of (i) the Department and/or its Inspector General; or (ii) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
12. The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within 1 year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Karen B. Salmon, Ph.D.
Signature:
Date: April 24, 2020
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PART C: USES OF ELEMENTARY AND SECONDARY SCHOOL
EMERGENCY RELIEF FUNDS
Section 18003 of Division B of the CARES Act provides in relevant part that grants awarded under
the Elementary and Secondary School Emergency Relief Fund be used to support the ability of local
educational agencies (LEAs) to continue to provide educational services to their students. The
Department requests the following:
1. Information that the SEA may request LEAs to include in their subgrant applications to the
SEA.
Local School Systems (LSS) in Maryland are implementing the State’s Continuity of
Learning plan and have identified a number of priorities necessary to support continued
delivery of education services to all students. Maryland’s draft LSS ESSER Application
will focus on the LSS’s implementation of the Continuity of Learning Plan, require the LSS
to identify their priorities and provide specific details on the process for identifying those
priorities. LSSs will be asked to include the plans for assessing and addressing student
learning gaps as a result of the school closure. Finally, the application will include a budget
and budget narrative that describes the planned use of ESEER funds as well as a timeline
for implementing the identified priorities.
The above considerations will be in addition to the application information
requirements from sections 442 and 427 of the General Education Provisions Act
(GEPA) (20 U.S.C. § 1232e and § 1228a).
2. The extent to which the SEA intends to use any portion of its SEA reserve (up to 10 percent of
its ESSER Fund award) to support:
x technological capacity and access – including hardware and software, connectivity, and
instructional expertise – to support remote learning. If so, please describe the strategies
the SEA intends to use to serve disadvantaged populations listed in Sec. 18003(d)(4) of
the CARES Act; and
x remote learning by developing new informational and academic resources and
expanding awareness of, and access to, best practices and innovations in remote learning
and support for students, families, and educators.
Maryland will issue additional grants to LSSs for initiatives and activities necessary to
implement the State’s Continuity of Learning Program for all students. The primary focus
will be on procuring devices to increase access to remote learning. A secondary focus will
include initiatives that support a remote learning infrastructure. These activities could
include purchasing remote help desk and network management installation tools and
services to effectively manage security and software updates on devices distributed to staff
and students; purchasing subscription services that allow teachers to communicate with
students and team members, and that will enable therapists to deliver services to students
virtually. A third focus will include initiatives that support increased access to remote
learning through professional development for staff, parent outreach and family technology
training. A fourth focus includes initiatives that support a return to traditional delivery of
education services. Activities could include the repair, replacement, refurbishing, and
sanitizing of devices purchased and utilized to enable remote learning so that these devices
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5
can be re-deployed to classrooms when schools reopen.
Local school systems have identified the several areas of need to continue implementing the
State’s Continuity of Learning Plan. These include, but are not limited to:
x Internet Access
x Devices for students and staff
x Security upgrades
x Learning Management System upgrades, new content
x Professional Development for teachers and staff
x Outreach and communication to families, technology training
x Expanded Summer Learning Programs
x Compensatory services for students with disabilities
x Academic Intervention programs
x Additional extended learning programs
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PART D: OTHER ASSURANCES AND CERTIFICATIONS
The [Chief State School Officer or his/her authorized representative] assures or certifies the
following:
1. The SEA will comply with all applicable assurances in OMB Standard Forms 424B and D
(Assurances for Non-Construction and Construction Programs), including the assurances
relating to the legal authority to apply for assistance; access to records; conflict of interest; merit
systems; nondiscrimination; Hatch Act provisions; labor standards; flood hazards; historic
preservation; protection of human subjects; animal welfare; lead-based paint; Single Audit Act;
and the general agreement to comply with all applicable Federal laws, executive orders and
regulations.
2. With respect to the certification regarding lobbying in Department Form 80-0013, no Federal
appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with the making or
renewal of Federal grants under this program; the SEAe will complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying,” when required (34 C.F.R. Part 82,
Appendix B); and the SEA will require the full certification, as set forth in 34 C.F.R. Part 82,
Appendix A, in the award documents for all subawards at all tiers.
3. Any LEA receiving funding under this program will have on file with the SEA a set of
assurances that meets the requirements of section 442 of the General Education Provisions Act
(GEPA) (20 U.S.C. 1232e).
4. To the extent applicable, an LEA will include in its local application a description of how the
LEA will comply with the requirements of section 427 of GEPA (20 U.S.C. 1228a). The
description must include information on the steps the LEA proposes to take to permit students,
teachers, and other program beneficiaries to overcome barriers (including barriers based on
gender, race, color, national origin, disability, and age) that impede equal access to, or
participation in, the program.
5. The SEA will comply with the Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (Uniform Guidance) requirements in Subpart D—Post
Federal Award Requirements (2 CFR §§200.300-345) and Subpart E—Cost Principles (2 CFR
§§200.400-475) to ensure that LEAs, including charter schools that are LEAs, are using ESSER
funds for purposes that are reasonable, necessary, and allocable under the CARES Act.
6. The SEA and other entities will comply with the provisions of all applicable acts, regulations
and assurances; the following provisions of Education Department General Administrative
Regulations (EDGAR) 34 CFR parts 76, 77, 81, 82, 84, 97, 98, and 99; the OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part
180, as adopted and amended as regulations of the Department in 2 CFR part 3485; and the
Uniform Guidance in 2 CFR part 200, as adopted and amended as regulations of the Department
in 2 CFR part 3474.
Chief State School Officer or Authorized Representative (Printed Name):
Karen B. Salmon, Ph.D.
Signature:
Date: April 24, 2020
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7
Appendix A: Relevant Excerpts from Title VIII of Division B of the CARES
Act, the Emergency Appropriations for Coronavirus Health Response and
Agency Operations
DEPARTMENT OF EDUCATION
EDUCATION STABILIZATION FUND
For an additional amount for ‘‘Education Stabilization Fund’’, $30,750,000,000, to remain available
through September 30, 2021, to prevent, prepare for, and respond to coronavirus, domestically or
internationally: Provided, That such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency
Deficit Control Act of 1985.
GENERAL PROVISIONS
EDUCATION STABILIZATION FUND
SEC. 18001. (a) ALLOCATIONS.—From the amount made available under this heading in this Act
to carry out the Education Stabilization Fund, the Secretary shall first allocate—
(1) not more than 1/2 of 1 percent to the outlying areas on the basis of their respective needs, as
determined by the Secretary, in consultation with the Secretary of the Interior;
(2) one-half of 1 percent for the Secretary of Interior, in consultation with the Secretary of
Education, for programs operated or funded by the Bureau of Indian Education; and
(3) 1 percent for grants to States with the highest coronavirus burden to support activities under this
heading in this Act, for which the Secretary shall issue a notice inviting applications not later than
30 days of enactment of this Act and approve or deny applications not later than 30 days after
receipt.
(b) RESERVATIONS.—After carrying out subsection (a), the Secretary shall reserve the remaining
funds made available as follows:
(1) 9.8 percent to carry out section 18002 of this title.
(2) 43.9 percent to carry out section 18003 of this title.
(3) 46.3 percent to carry out section 18004 of this title.
ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF FUND
SEC. 18003. (a) GRANTS.—From funds reserved under section 18001(b)(2) of this title, the
Secretary shall make elementary and secondary school emergency relief grants to each State
educational agency with an approved application. The Secretary shall issue a notice inviting
applications not later than 30 days of enactment of this Act and approve or deny applications not
later than 30 days after receipt.
(b) ALLOCATIONS TO STATES.—The amount of each grant under subsection (a) shall be
allocated by the Secretary to each State in the same proportion as each State received under part A
of title I of the ESEA of 1965 in the most recent fiscal year.
(c) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—Each State shall allocate not less
than 90 percent of the grant funds awarded to the State under this section as subgrants to local
educational agencies (including charter schools that are local educational agencies) in the State in
proportion to the amount of funds such local educational agencies and charter schools that are local
educational agencies received under part A of title I of the ESEA of 1965
in the most recent fiscal year.
(d) USES OF FUNDS.—A local educational agency that receives funds under this title may use the
funds for any of the following:
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 172 of 355
(1) Any activity authorized by the ESEA of 1965, including the Native Hawaiian Education Act and
the Alaska Native Educational Equity, Support, and Assistance Act (20 U.S.C. 6301 et seq.), the
Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) (‘‘IDEA’’), the Adult
Education and Family Literacy Act (20 U.S.C. 1400 et seq.), the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) (‘‘the Perkins Act’’), or subtitle B of title
VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.).
(2) Coordination of preparedness and response efforts of local educational agencies with State,
local, Tribal, and territorial public health departments, and other relevant agencies,
to improve coordinated responses among such entities to prevent, prepare for, and respond to
coronavirus.
(3) Providing principals and others school leaders with the resources necessary to address the needs
of their individual schools.
(4) Activities to address the unique needs of low-income children or students, children with
disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and
foster care youth, including how outreach and service delivery will meet the needs of each
population.
(5) Developing and implementing procedures and systems to improve the preparedness and
response efforts of local educational agencies.
(6) Training and professional development for staff of the local educational agency on sanitation
and minimizing the spread of infectious diseases.
(7) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including
buildings operated by such agency.
(8) Planning for and coordinating during long-term closures, including for how to provide meals to
eligible students, how to provide technology for online learning to all students,
how to provide guidance for carrying out requirements under the Individuals with Disabilities
Education Act (20 U.S.C. 1401 et seq.) and how to ensure other educational services can continue
to be provided consistent with all Federal, State, and local requirements.
(9) Purchasing educational technology (including hardware, software, and connectivity) for students
who are served by the local educational agency that aids in regular and substantive
educational interaction between students and their classroom instructors, including low-income
students and students with disabilities, which may include assistive technology
or adaptive equipment.
(10) Providing mental health services and supports.
(11) Planning and implementing activities related to summer learning and supplemental afterschool
programs, including providing classroom instruction or online learning
during the summer months and addressing the needs of low-income students, students with
disabilities, English learners, migrant students, students experiencing homelessness, and
children in foster care.
(12) Other activities that are necessary to maintain the operation of and continuity of services in
local educational agencies and continuing to employ existing staff of the local educational agency.
(e) STATE FUNDING.—With funds not otherwise allocated under subsection (c), a State may
reserve not more than 1/2 of 1 percent for administrative costs and the remainder for emergency
needs as determined by the state educational agency to address issues responding to coronavirus,
which may be addressed through the use of grants or contracts.
(f) REALLOCATION.—A State shall return to the Secretary any
funds received under this section that the State does not award within 1 year of receiving such funds
and the Secretary shall reallocate such funds to the remaining States in accordance with
subsection (b).
7
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 173 of 355
1 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
2 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
8
ASSISTANCE TO NON-PUBLIC SCHOOLS
SEC. 18005. (a) IN GENERAL.—A local educational agency receiving funds under sections 18002
or 18003 of this title shall provide equitable services in the same manner as provided under section
1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in
consultation with representatives of non-public schools.
(b) PUBLIC CONTROL OF FUNDS.—The control of funds for the services and assistance
provided to a non-public school under subsection (a), and title to materials, equipment, and property
purchased with such funds, shall be in a public agency, and a public agency shall administer such
funds, materials, equipment, and property and shall provide such services (or may contract for the
provision of such services with a public or private entity).
CONTINUED PAYMENT TO EMPLOYEES
SEC. 18006. A local educational agency, State, institution of higher education, or other entity that
receives funds under ‘‘Education Stabilization Fund’’, shall to the greatest extent practicable,
continue to pay its employees and contractors during the period of any disruptions or closures
related to coronavirus.
DEFINITIONS
SEC. 18007. Except as otherwise provided in sections 18001– 18006 of this title, as used in such
sections—
(1) the terms ‘‘elementary education’’ and ‘‘secondary education’’ have the meaning given such
terms under State law;
(2) the term ‘‘institution of higher education’’ has the meaning given such term in title I of the
Higher Education Act of 1965 (20 U.S.C. 1001 et seq.);
(3) the term ‘‘Secretary’’ means the Secretary of Education;
(4) the term ‘‘State’’ means each of the 50 States, the District of Columbia, and the Commonwealth
of Puerto Rico;
(5) the term ‘‘cost of attendance’’ has the meaning given such term in section 472 of the Higher
Education Act of 1965.
(6) the term ‘‘Non-public school’’ means a non-public elementary and secondary school that (A) is
accredited, licensed, or otherwise operates in accordance with State law; and
(B) was in existence prior to the date of the qualifying emergency for which grants are awarded
under this section;
(7) the term ‘‘public school’’ means a public elementary or secondary school; and
(8) any other term used that is defined in section 8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801) shall have the meaning given the term in such
section.
MAINTENANCE OF EFFORT
SEC. 18008. (a) A State’s application for funds to carry out sections 18002 or 18003 of this title
shall include assurances that the State will maintain support for elementary and secondary
education, and State support for higher education (which shall include State funding to institutions
of higher education and state need based financial aid, and shall 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 provided in the 3 fiscal years
preceding the date of enactment of this Act.
(b) The secretary may waive the requirement in subsection (a) for the purpose of relieving fiscal
burdens on States that have experienced a precipitous decline in financial resources.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 174 of 355
1 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
2 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
9
REPORTING ON USE OF FUNDS SEC. 15011.
(a) In this section—
(1) the terms ‘‘agency’’, ‘‘appropriate congressional committees’’, ‘‘Committee’’, ‘‘covered
funds’’, and ‘‘Coronavirus response’’ have the meanings given those terms in section 15010;
(2) the term ‘‘covered recipient’’ (A) means any entity that receives large covered funds; and (B)
includes any State, the District of Columbia, and any territory or possession of the United States;
and
(3) the term ‘‘large covered funds’’ means covered funds that amount to more than $150,000.
…
(b)(2) Not later than 10 days after the end of each calendar quarter, each covered recipient shall
submit to the agency and the Committee a report that contains—
(A) the total amount of large covered funds received from the agency;
(B) the amount of large covered funds received that were expended or obligated for each project or
activity;
(C) a detailed list of all projects or activities for which large covered funds were expended or
obligated, including—
(i) the name of the project or activity;
(ii) a description of the project or activity; and
(iii) the estimated number of jobs created or retained by the project or activity, where applicable;
and
(D) detailed information on any level of subcontracts or subgrants awarded by the covered recipient
or its subcontractors or subgrantees, to include the data elements required to comply with the
Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note) allowing
aggregate reporting on awards below $50,000 or to individuals, as prescribed by the Director of the
Office of Management and Budget.
(3) Not later than 30 days after the end of each calendar quarter, the Committee, in consultation
with the agency that made large covered funds available to any covered recipient shall make the
information in reports submitted under paragraph (2) publicly available by posting the information
on the website established under section 15010(g).
(4)(A) Each agency, in coordination with the Committee and the Director of the Office of
Management and Budget shall provide user-friendly means for covered recipients to meet
requirements of this subsection.
(B) Federal agencies may use existing mechanisms to ensure that information under this subsection
is reported accurately.
(c)(1) The Director of the Office of Management and Budget, in consultation with the Secretary of
the Treasury, the Administrator of the Small Business Administration, and the Chairperson of the
Council of Economic Advisors, shall submit to the appropriate congressional committees and
publicly release on the website established under section 15010(g) quarterly reports that detail the
impact of programs funded through large covered funds on employment, estimated economic
growth, and other key economic indicators, including information about impacted industries.
(2)(A) The first report submitted under paragraph (1) shall be submitted not later than 45 days after
the end of the first full quarter following the date of enactment of this Act.
(B) The last report required to be submitted under paragraph (1) shall apply to the quarter in which
the Committee terminates.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 175 of 355
1 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
2 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
10
APPENDIX B: STATE ALLOCATION TABLE
Elementary and Secondary School Emergency Relief Fund
STATE
STATE
TOTAL
Minimum LEA
Distribution1
Maximum SEA
Reservation
Maximum for
SEA
Administration2
TOTAL
13,229,265,000
11,906,338,500
1,322,926,500
66,146,325
ALABAMA
216,947,540
NVRIOROITUS
ONISVQITRQ
NIMUQITPU
ALASKA
38,407,914
PQIRSTINOP
PIUQMITVN
NVOIMQM
ARIZONA
277,422,944
OQVISUMISRM
OTITQOIOVQ
NIPUTINNR
ARKANSAS
128,758,638
NNRIUUOITTQ
NOIUTRIUSQ
SQPITVP
CALIFORNIA
1,647,306,127
NIQUOIRTRIRNQ
NSQITPMISNP
UIOPSIRPN
COLORADO
120,993,782
NMUIUVQIQMQ
NOIMVVIPTU
SMQIVSV
CONNECTICUT
111,068,059
VVIVSNIORP
NNINMSIUMS
RRRIPQM
DELAWARE
43,492,753
PVINQPIQTU
QIPQVIOTR
ONTIQSQ
DISTRICT OF
COLUMBIA
42,006,354
PTIUMRITNV
QIOMMISPR
ONMIMPO
FLORIDA
770,247,851
SVPIOOPIMSS
TTIMOQITUR
PIURNIOPV
GEORGIA
457,169,852
QNNIQROIUST
QRITNSIVUR
OIOURIUQV
HAWAII
43,385,229
PVIMQSITMS
QIPPUIROP
ONSIVOS
IDAHO
47,854,695
QPIMSVIOOS
QITURIQTM
OPVIOTP
ILLINOIS
569,467,218
RNOIROMIQVS
RSIVQSITOO
OIUQTIPPS
INDIANA
214,472,770
NVPIMORIQVP
ONIQQTIOTT
NIMTOIPSQ
IOWA
71,625,561
SQIQSPIMMR
TINSOIRRS
PRUINOU
KANSAS
84,529,061
TSIMTSINRR
UIQROIVMS
QOOISQR
KENTUCKY
193,186,874
NTPIUSUINUT
NVIPNUISUT
VSRIVPQ
LOUISIANA
286,980,175
ORUIOUOINRU
OUISVUIMNU
NIQPQIVMN
MAINE
43,793,319
PVIQNPIVUT
QIPTVIPPO
ONUIVST
MARYLAND
207,834,058
NUTIMRMISRO
OMITUPIQMS
NIMPVINTM
MASSACHUSETTS
214,894,317
NVPIQMQIUUR
ONIQUVIQPO
NIMTQIQTO
MICHIGAN
389,796,984
PRMIUNTIOUS
PUIVTVISVU
NIVQUIVUR
MINNESOTA
140,137,253
NOSINOPIROU
NQIMNPITOR
TMMISUS
MISSISSIPPI
169,883,002
NROIUVQITMO
NSIVUUIPMM
UQVIQNR
MISSOURI
208,443,300
NUTIRVUIVTM
OMIUQQIPPM
NIMQOIONT
MONTANA
41,295,230
PTINSRITMT
QINOVIROP
OMSIQTS
NEBRASKA
SRIMURIMUR
RUIRTSIRTT
SIRMUIRMV
PORIQOR
NEVADA
117,185,045
NMRIQSSIRQN
NNITNUIRMR
RURIVOR
NEW HAMPSHIRE
37,641,372
PPIUTTIOPR
PITSQINPT
NUUIOMT
NEW JERSEY
310,371,213
OTVIPPQIMVO
PNIMPTINON
NIRRNIURS
NEW MEXICO
NMUIRTQITUS
VTITNTIPMT
NMIURTIQTV
RQOIUTQ
NEW YORK
1,037,045,603
VPPIPQNIMQP
NMPITMQIRSM
RINURIOOU
NORTH CAROLINA
396,311,607
PRSISUMIQQS
PVISPNINSN
NIVUNIRRU
NORTH DAKOTA
33,297,699
OVIVSTIVOV
PIPOVITTM
NSSIQUV
OHIO
489,205,200
QQMIOUQISUM
QUIVOMIROM
OIQQSIMOS
OKLAHOMA
160,950,476
NQQIURRIQOU
NSIMVRIMQU
UMQITRO
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 176 of 355
3 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
4 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
11
STATE
STATE
TOTAL
Minimum LEA
Distribution3
Maximum SEA
Reservation
Maximum for
SEA
Administration4
OREGON
121,099,019
NMUIVUVINNT
NOINMVIVMO
SMRIQVR
PENNSYLVANIA
523,807,198
QTNIQOSIQTU
ROIPUMITOM
OISNVIMPS
RHODE ISLAND
46,350,444
QNITNRIQMM
QISPRIMQQ
OPNITRO
SOUTH CAROLINA
216,311,158
NVQISUMIMQO
ONISPNINNS
NIMUNIRRS
SOUTH DAKOTA
41,295,230
PTINSRITMT
QINOVIROP
OMSIQTS
TENNESSEE
259,891,154
OPPIVMOIMPV
ORIVUVINNR
NIOVVIQRS
TEXAS
1,285,886,064
NINRTIOVTIQRU
NOUIRUUISMS
SIQOVIQPM
UTAH
67,821,787
SNIMPVISMU
SITUOINTV
PPVINMV
VERMONT
31,148,360
OUIMPPIROQ
PINNQIUPS
NRRITQO
VIRGINIA
238,599,192
ONQITPVIOTP
OPIURVIVNV
NINVOIVVS
WASHINGTON
216,892,447
NVRIOMPIOMO
ONISUVIOQR
NIMUQIQSO
WEST VIRGINIA
86,640,471
TTIVTSIQOQ
UISSQIMQT
QPPIOMO
WISCONSIN
174,777,774
NRTIOVVIVVT
NTIQTTITTT
UTPIUUV
WYOMING
32,562,651
OVIPMSIPUS
PIORSIOSR
NSOIUNP
PUERTO RICO
349,113,105
PNQIOMNITVR
PQIVNNIPNN
NITQRIRSS
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 177 of 355
EXHIBIT 8
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF DR. MONICA E.
GOLDSON
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Exhibit A
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PROGRAMMATIC, FISCAL, REPORTING, AND OTHER ASSURANCES
1. The Local School System (LSS) will use ESSER funds for activities allowable under
section 18003(d) of Division B of the CARES Act. (See Appendix A.)
The following is not considered to be an allowable use of ESSER funds, under any part of
18003: 1) subsidizing or offsetting executive salaries and benefits of individuals who are
not employees of the LSS or 2) expenditures related to state or local teacher or faculty
unions or associations.
2. The LSS will provide equitable services to students and teachers in non-public schools
located within the LEA in the same manner as provided under section 1117 of the
ESEA, as determined through timely and meaningful consultation with representatives
of non-public schools.
•
The LSS will ensure that a public agency will maintain control of funds for the
services and assistance provided to a non-public school under the ESSER Fund.
•
The LSS will ensure that a public agency will have title to materials, equipment,
and property purchased with ESSER funds.
•
The LSS will ensure that services to a non-public school with ESSER funds will
be provided by a public agency directly, or through contract with, another public
or private entity.
3. The LSS will, to the greatest extent practicable, continue to compensate its employees
and contractors during the period of any disruptions or closures related to COVID-19 in
compliance with Section 18006 of Division B of the CARES Act. CARES Act funds
generally will not be used for bonuses, merit pay, or similar expenditures, unless related
to disruptions or closures resulting from COVID-19.
4. The LSS will cooperate with any examination of records with respect to such funds by
making records available for inspection, production, and examination, and authorized
individuals available for interview and examination, upon the request of (i) the United
States Department of Education (USDE) and/or its Inspector General; or (ii) any other
federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
5. The LSS will comply with all applicable assurances in OMB Standard Forms 424B and
D (Assurances for Non-Construction and Construction Programs), including the
assurances relating to the legal authority to apply for assistance; access to records;
conflict of interest; merit systems; nondiscrimination; Hatch Act provisions; labor
standards; flood hazards; historic preservation; protection of human subjects; animal
welfare; lead-based paint; Single Audit Act; and the general agreement to comply with
all applicable Federal laws, executive orders and regulations.
6. LSS will submit the full certification, as set forth in 34 C.F.R. Part 82, Appendix A,
upon request.
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2 | P a g e
7. The LSS will sign and return the Assurances page of the Notice of Grant Award
(NOGA) which includes a set of assurances that meets the requirements of section 442
of the General Education Provisions Act (GEPA) (20 U.S.C. 1232e).
8. To the extent applicable, an LEA will include in its local application a description of
how the LEA will comply with the requirements of section 427 of GEPA (20 U.S.C.
1228a). The description must include information on the steps the LEA proposes to take
to permit students, teachers, and other program beneficiaries to overcome barriers
(including barriers based on gender, race, color, national origin, disability, and age) that
impede equal access to, or participation in, the program.
9. The SEA will comply with the Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards (Uniform Guidance) requirements in
Subpart D—Post Federal Award Requirements (2 CFR §§200.300-345) and Subpart E—
Cost Principles (2 CFR
§§200.400-475) to ensure that LEAs, including charter schools that are LEAs, are using
ESSER funds for purposes that are reasonable, necessary, and allocable under the
CARES Act.
10. The LSS and other entities will comply with the provisions of all applicable acts,
regulations and assurances; the following provisions of Education Department General
Administrative Regulations (EDGAR) 34 CFR parts 76, 77, 81, 82, 84, 97, 98, and 99;
the OMB Guidelines to Agencies on Government-wide Debarment and Suspension
(Nonprocurement) in 2 CFR part180, as adopted and amended as regulations of the
Department in 2 CFR part 3485; and the Uniform Guidance in 2 CFR part 200, as
adopted and amended as regulations of the USDE in 2 CFR part 3474.
LSS ESSER Fund Contact/Title: Chief Executive Officer
Contact Email: ceo@pgcps.org Contact Phone: (301) 952-6008
Local School System Superintendent (Printed Name): Dr. Monica Goldson
Signature:
Date:
6/12/2020
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USES OF ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF
FUNDS
Elementary and Secondary School Emergency Relief (ESSER) Fund Maryland Local
School System Application
Part I – Planned Use of ESSER Funds
1. Please describe the Local School System’s (LSSs) process for determining the most
important education needs as a result of the COVID-19 Pandemic. Please identify the most
important education needs revealed through this process.
Prince George’s County Public Schools (PGCPS) is guided in its decisions by its mission to
provide a great education that empowers all students and contributes to thriving communities. Five
strategic pillars undergird this mission and framed the prioritization of educational needs in the
environment created by the COVID-19 pandemic. Each pillar (Academic Excellence, Safe and
Supportive Environments, High-Performing Workforce, Family & Community Engagement, and
Operational Effectiveness) is addressed in the context of six critical actions: communicate,
prevent, protect, equip, educate, and support.
Discussions of PGCPS education needs under the threat of COVID-19 began in early March 2020.
With an abundance of caution for the safety and health of the PGCPS community, CEO Dr.
Monica Goldson, the Board of Education and the local government collaboratively engaged in
discussions on ways to support the PGCPS community with the looming impact of COVID-19.
During the first week of March, all principals and building services personnel were instructed to
use procedures aligned with virus prevention as part of their daily cleaning of facilities. Schools
were equipped with additional supplies such as soap, paper towels and hand sanitizer dispensers.
As a safety precaution, Dr. Goldson canceled all student local and international field trips and
nonlocal travel for staff. Preventative measures included scheduled hand washings for students
and a prescribed disinfection of schools and buildings. Within a few short weeks, the viral
outbreak was worldwide and required prompt intervention at the federal and state levels to control.
Following strict guidance offered by state and local government and health officials, PGCPS’
Executive Leadership Team (ELT) engaged in daily command meetings to stay abreast of new
information as well as to discuss and make decisions on immediate actions to address protective
alternatives to standard educational operations as a result of the pandemic. The core ELT is
comprised of district’s executive leadership who are responsible for every aspect of the
organization. Meetings include the discovery of new information through updates from the State
and local governments, updates from the internal Incident Command Center, as well as
information from the Communications Office who continuously monitors stakeholder needs
through social media, emails and phone inquiries. Through the deliberation of the ELT, the most
important education needs can be grouped into the following four categories:
x Student and staff safety and building readiness
x Continuity of learning
x Access to technology – the need for devices and internet access
x Communications – the ability to reach all parents and relevant stakeholders
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In keeping with its mission to provide quality instruction to advance student achievement, PGCPS
prioritized equipping students/families, and instructional staff with the materials, tools,
technologies, and training to sustain instruction and creative distance learning opportunities. In
addition, surveys were administered to the PGCPS community to identify the unique needs of
students and families surrounding technology device availability, internet/wifi access, CATV
viewing opportunity, etc. Internal needs assessments combined with survey results were used to
inform and confirm the prioritization of the most critical education needs which included 1:1
student/device technology gap; universal access to instructional materials and online learning
opportunities; sustaining student achievement momentum in core content areas during 4Q and
summer periods, fortifying social and emotional support for students, families, and staff; and
ongoing maintenance and disinfection of facilities. In addition, discussions surrounding SY2020
close-out for seniors and student performance accountability impacts were salient factors in
systemic needs assessment efforts.
Given these priorities, delivery of 3rd and 4th quarter academic standards in core content R/ELA
and Mathematics was confirmed as an academic priority with well-rounded education
opportunities capping the weekly distance learning schedule. Particular attention was given to
ensuring multiple ways of accessing learning opportunities and related instructional materials and
that ease of access to needed student and family supports is afforded to high-needs student/school
populations (i.e., FARMS, SWD, ELs). Monitoring and supporting the engagement of students in
the continuity of learning effort is of equal importance and is led by the Office of Information and
Technology through the tracking and reporting of daily updates on both the access and usage of
technology throughout the district. Finally, maintaining an equity focus consistent with its Local
ESSA Consolidated Strategic Plan, a robust Continuity of Learning Plan (see response #2) guided
and continues to guide PGCPS’ priorities and decisions surrounding education needs in the
ongoing COVID-19 environment and beyond.
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2. Please provide a summary of the LSS’s Continuity of Learning (COL) plan. Please identify
new initiatives or activities that have been instituted in order to implement the LSS COL
plan; i.e. professional development, family outreach, learning management system content,
new or additional streaming capability to deliver educational services via cable television
or other platforms, and student and staff devices and hotspots to improve internet
connectivity. Please identify the major issues encountered in implementing the LSS COL
plan.
PGCPS’ Continuity of Learning plan unfolded in two phases, Phase One included preparation,
distribution, training, and collaboration. This phase of the plan focused on the design and delivery
of professional learning to educators in various online platforms, provided the opportunity for
teachers to set up virtual classrooms, and distributed laptops to students and staff as needed.
During phase two educators began to deliver virtual lessons, established communication with
families and students, and provided virtual support for students in need of assistance.
While distance learning is not be structured like a typical school day, the district plans to maintain
key aspects of the classroom experience: collaboration with peers, daily lessons, and
experimentation with individualized and innovative techniques. PGCPS’ model of distance
learning is inclusive of a blend of approaches to learning activities; independent, self-paced work;
virtual office hours to check for understanding, and submission of assignments. This was designed
to maintain an academic connection and flexibility for students, teachers, and families. The plan
was strategically developed to support distance learning in the case of short- or long-term closures
of school buildings.
The chart below outlines the new initiatives or activities that have been instituted in order to
implement Continuity of Learning plan.
Continuity
Plan
Components
Description of Component
Professional
Development
The Continuity of Learning Plan includes an at-a-glance overview for high school,
middle school, elementary school teachers/school staff, and central office staff.
Additional guidance for the training process and course offerings are provided below:
Registration: The schedule and registration information was posted for each specific
audience on the Remote Teaching Site (bit.ly/pgcpsremoteteaching)
Course Selection: During their grade span (elementary, middle, and high) professional
development day, teachers/school staff attended one session to learn Google Classroom
and one session to learn video conferencing Google Meet or Zoom and the Teaching at
a Distance session. Additionally, teachers/school staff had the option to choose to attend
a session to learn Screencastify.
Platform Information: All virtual professional development sessions were presented via
WebEx, allowing up to 900 participants to register in each session.
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Continuity
Plan
Components
Description of Component
School Administrators: School Administrators joined the training for their respective
level with teachers and school staff. School administrators also attend a GoGuardian
session to learn how to monitor instructional sites being used and students' inappropriate
use online.
Central Office Staff Training: Separate sessions were designated for Central Office Staff
to receive training.
Instructional Focus Documents: Teachers/School Staff have access to instructional
focus documents that provide grade-level instructional focus topics and standard
alignment that should be used weekly to guide instruction.
Learning
Management
System
Instructional focus guides have been created for every course in order to provide
teachers with direction on how to implement the curriculum within a distance-learning
format. Teachers primarily use a combination of google classroom, google meet, and
zoom to deliver instruction.
Television
Streaming
The district is providing daily access to Reading and Math PreK-5 lessons on PGCPS-
TV (channels 96 Comcast and 38 Verizon). If families do not have cable, they are also
able to watch shows on-demand using the online schedule with links to programming.
This schedule is available at http://vod.pgcps.org/CablecastPublicSite/schedule.
Additionally, there is a rotation of Music, Art, Dance, Physical Education, Montessori,
and Immersion on Fridays.
Device
Distribution
In an effort to identify student access to a computing device and broadband access at
home, the district created a survey sent to all students/families to identify those in need
of a computing device and home internet access. Parents were asked to evaluate:
Which broadband Internet service provider is used in the home?
Is there a device that connects to the Internet at home for your student(s) to use?
What type of device(s) would your student(s) be able to use at home?
Is the student having to share a device?
The data received back identified students with and without a device. The survey also
identified students with broadband access at home and their provider, as well as students
currently without broadband access.
Preparation of Chromebooks and Student Equipment Agreements
To prepare for the deployment of so many devices, a social distancing distribution plan
was put in place to ensure safety for staff and families. This plan also ensured a way to
capture an appropriate inventory of all devices being handed out to parents. The
paperwork identifies which device was given to which student. The information, once the
paperwork is collected from the schools, will be entered into our Asset Management
System for our electronic record.
Internet
Connectivity
In-Home Connectivity
PGCPS has partnered with Internet Essentials from Comcast to bring families
affordable, high-speed Internet that makes it easier for low-income households to get
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Continuity
Plan
Components
Description of Component
connected so they can more easily work from home, access educational resources, and
stay in contact with friends and family. New Internet Essentials customers may be
eligible for two months of free Internet service.
Wifi Access Points
Drive-up wifi access points at several schools will be available starting Tuesday, April
14 for anyone with a PGCPS email account to log on from the school parking lot or
within close proximity to the school.
Family
Outreach
PGCPS designed a website (https://www.pgcps.org/coronavirus/distance-learning/) to
inform families of the Distance Learning plan and resources available for students and
families. This page includes information on the following:
Distance Learning Plan PreK-12
Phase 1: Preparation
Phase 2: Distance Learning Plan
PreK-Grade 5 Lessons TV Schedule
Teacher/Student Weekly Schedule
Distance Learning Packets
Technology
Special Education
Calendar and Grading
Resources
Major Issues Encountered in Implementing the Continuity of Learning Plan
● Supporting students who did not have access to digital devices before Chromebook distribution
● Supporting students who do not have access to the internet
● Students who have not logged on to interact with the classroom teacher during the distance
learning period
To sustain the supports introduced by PGCPS’ Continuity of Learning and those instructional
opportunities provided during summer programming, PGCPS will extend its school day when it
re-opens it doors to students and staff for SY21.
In so doing, PGCPS understands that there are many factors to consider. One in particular, is
compensating for any learning loss associated with school closures. Our goal is to extend the
school day versus adding additional days to the school year. All teachers and students, PreK-12,
will have an extra 30 minutes per day for 30 days that will be used for academic interventions
designed to deliver 4th quarter and 1st quarter content.
According to a January 2020 report from the Education Commission of the States, Md. Code Ann.,
Educ. § 7-103, requires Maryland schools to provide instruction for a minimum of 3 hours each
day. The current school schedule in PGCPS far exceeds the minimum with six hours and 10
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minutes for elementary and special schools K-12, and six hours and 40 minutes for K-8 academies,
middle school, and high school. An additional 30 minutes would increase the daily instructional
time to six hours and 40 minutes and seven hours and 10 minutes, respectively. The additional
minutes for the first thirty days is reflected in the chart below.
PGCPS School Type
PGCPS Current School
Day Time Allotment
PGCPS Proposed School
Day Time Allotment (30
days)
Elementary Schools
6 hours 10 minutes
6 hours 40 minutes
Dedicated Specialty K-6
6 hours 10 minutes
6 hours 40 minutes
Special Schools K-12
6 hours 10 minutes
6 hours 40 minutes
Middle Schools
6 hours 40 minutes
7 hours 10 minutes
K-8 Academies and Dedicated
Specialty K-8
6 hours 40 minutes
7 hours 10 minutes
High Schools
6 hours 40 minutes
7 hours 10 minutes
Academy of Health Science at
Prince George’s Community College
& Annapolis Road Academy
Alternative High School
6 hours 40 minutes
7 hours 10 minutes
Hanover Research and Washington Association of School Administrators (2020) asserted that
when learning loss occurs due to a traumatic event such as the COVID- 19 school closure,
establishing a sense of constancy and predictability with schedules and routines that communicate
a clear set of expectations (p. 4) can support students when they return to the school setting.
Additionally, Canady and Rettig (1995) found a well-crafted schedule to result in more effective
use of time, space and resources, as well as improve instructional climate (p. 4) as PGCPS
dedicates an additional 30 minutes to address predetermined skills and concepts.
According to Walker (2016), more school districts across the country have stretched the school
day. In fact, the Rochester Teachers Association implemented an extended learning initiative that
won positive reviews from district leaders, educators, and parents. However, the plan was
designed and implemented with educators, not to educators. Thus, the following will be reviewed
as stakeholders collaborate on the use of the additional 30 minutes per day:
● PGCPS will identify and support student groups most affected by distance learning
● Fluency standards that are most beneficial as students progress
● Specific skills and concepts that students really need to be successful in future years
● A schedule for teachers to work vertically across grade levels for the purpose of deciding
upon critical areas that must be addressed as students move from one grade to the next
● Rearranging course content to focus on the progression of standards that may have been
missed
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3. Please describe how the LSS intends to assess and address student learning gaps
resulting from the disruption in educational services.
PGCPS recognizes the potential gaps in student learning outcomes in 4Q20 performance
stemming from the disruption of the instructional environment due to COVID-19. As a result,
a comprehensive and robust systemic summer virtual learning plan is being implemented to
assess and address any gaps in 4Q20 learning at each grade band (preK, elementary, middle,
and high school). In accordance with the state Superintendent's recommendations, PGCPS is
actively engaged in planning to determine the extent to which additional learning supports will
be carried forward into the start of SY21.
During the PGCPS summer program, PGCPS will continue to offer virtual learning platforms
for students in prek-12. This summer experience will commence on July 1st through July 31st,
and will be monitored throughout to ensure ongoing learning for students. In addition to
designated online learning and the provision of learning via PGCPS television stations, 38 and
96 respectively, instructional enrichment learning packets will be available for student use.
Funding will be utilized to ensure the continued provision of educational services, via
Edgenuity, television stations and to support staffing needed for program implementation.
Elementary students in K-5 will receive online instruction via iRead and iReady® for reading
and DreamBox© for mathematics. Cool Spring ES, Rosa L. Parks ES and Cherokee Lane ES
will host virtual Learning in Extended Academic Programs (LEAP) Virtual Summer Program
for students. Judy Hoyer Early Learning Center will offer a two-week program for rising pre-
kindergarten students. Scheduled content specific learning experiences will be scheduled daily
where PGCPS teachers provide direct instruction for K-5 students via television channels.
Content teachers will be tasked with planning and teaching lessons that are aligned to fourth
quarter instructional standards.
All middle school students will engage in virtual learning experiences to include participation
in Edgenuity. Edgenuity is an online instructional program that is available through the
purchase of licenses. Students will utilize the intervention model, a student adaptive
component, and courseware lessons, developed and aligned to fourth quarter content standards
during their participation. Students participating in the courseware model are selected due to
failure in reading and mathematics and for students where classrooms were covered by a long
term substitute during the school year. Unique learning paths, online tutors and teacher support
will serve as a compliment to this virtual experience. Content areas of focus will be
mathematics and RELA.
PGCPS will offer a Credit Recovery Program approach for high school students in grades 9-
12. Course offerings will provide students the opportunity to retake courses where they have
been unsuccessful. In order that this provision is offered for students to accommodate their
instructional needs, there will be a need to ensure the procurement of licenses needed.
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4. Please provide the LSS’s plan for meeting the equitable services requirement in Section
18005 of the CARES Act.
Annually, PGCPS ESSA Program Offices connect with our Non-Public partners to initiate an
intent to participate and provide meaningful and follow-up consultation. During this collaborative
dialogue, the Program Offices explain/review equitable services as outlined by the relevant
Department of Education authority.
To maintain relative consistency and continuity with our non-public partners, PGCPS will utilize
similar processes to ensure equitable services are provided to all students in private schools in
connection with CARES Act Elementary and Secondary School Emergency Relief (ESSER)
program funding. Following is the process to be utilized by PGCPS. In light of the timing of the
ESSER application relative to school closings, PGCPS will exercise increased flexibility in these
process steps, to the extent possible, to meet the needs of the non-public partners while adhering
to the guidelines for meaningful consultation.
● PGCPS will contact all Private schools in Prince George’s County that are identified on
the MSDE website via email and US mail. This contact provides private school officials
with the opportunity to convey their request to participate in equitable services provided
via ESSER funding. Private school officials will be asked to submit their interest for
participation in addition to student and staff counts as is standard in ESSA Title program
requirements, in addition to providing required student data used to determine proportional
allocations.
● Schools will be asked to respond and indicate their intention to participate for SY21 within
one week of form dissemination.
● Upon receipt of interest letters, PGCPS will invite all interested private school officials to
attend a Prince George's County Public Schools (PGCPS) ESSER Consultation Meeting
(to be scheduled virtually).
● The purpose of the consultation meeting is to provide an opportunity for Nonpublic
officials to consult with PGCPS’ program personnel and to receive an explanation and
clarification regarding eligible CARES Act ESSER-funded services and programs. The
PGCPS personnel representing each funded component of the ESSER program will
provide an overview of the regulatory and program requirements for each aspect of the
program within the district.
● To document agreement, during the consultation meeting, nonpublic representatives will
be provided an document (via online tools) to verify all nonpublic consultation program
topics were discussed.
● PGCPS will propose a start date for services to commence with private school children
consistent with program start timeframes for PGCPS students. In addition, should parental
permission be required for participation in any program, PGCPS will establish a date for
non-public schools to provide such documentation.
● To ensure that consultation is ongoing throughout the school year, a collaboratively
developed schedule of consultation meeting dates throughout the program service period
will be developed in the initial consultation meeting.
● Consultation meetings (virtual unless otherwise communicated) allows the inclusion of
representatives from all participating private schools and PGCPS program staff to be a part
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of the process. During each meeting, updates will be provided regarding the
implementation of services, student progress, and attendance of parent and family
engagement activities when applicable. During the school year, PGCPS Program Offices
will also work with the participating private schools to assist in spending their funds and
ensure accurate reporting and compliance timelines are met.
5.
Please provide the LSS’s planned use of ESSER funds, including the timeline for
implementing activities funded through this grant.
PGCPS will utilize funds received through ESSER grant award to address thirteen (13) discrete
activities to include: administrative cost, equitable services, operations, virtual summer school
through edgenuity, curriculum writing, curriculum writing/instructional video, technology,
communications, additional instruction time, trauma informed care supports, ESY enrollment
expansion, academic materials and food services supplies. Additionally, PGCPS’ approved
indirect costs are factored into the budget.
The activities and associated budgets are presented in the chart below. Also, a timeline of the
activities and associated start and end dates is found the preceding pages.
ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
Administrative Cost
Activity Summary:
Hire a Part-Time Project Manager that will be dedicated to
administering activities associated with the CARES/ESSA
grant, and be responsible for the day-to-day management
of the project.
The Project Manager will monitor and track project
timelines; ensure that all key deliverables are met; manage
communication across all key project-related internal
stakeholders; manage the project budget; give direction as
and when required; make decisions or recommendations
during the project’s life cycle; and coordinate, assemble
and submit all project interim and final reports to MSDE in
a timely manager.
Budget Narrative:
Part-time temporary grant administrative support:
Salary - $68,400
Fringes:
FICA (.0765 x 68,400) = 5,232
Workers Compensation (.02 x 68,400) = 1,368
$75,000
Equitable Services
Non-Public Schools
Estimated Equitable Services Set-Aside for Participating
Non-Public Schools
$1,508,655
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
Operations
Activity Summary:
Prince George’s County Public Schools will be providing
the necessary labor and supplies/materials to reduce the
risk of exposure to COVID-19 by thoroughly cleaning and
disinfecting all of the district’s facilities. Additional
disinfectant machines, personal protective equipment
(PPE), sanitation supplies, and overtime are the key
components that will be used to complete this ongoing
task.
Budget Narrative:
A. Overtime - Total: $1,958,687
To support the sanitation of schools and facilities
throughout the district.
~$64.49/hour x 27,699 hours = $1,786,309
FICA (7.65%) = $136,652 and Workers Compensation
(2.00%) = $35,726
B.
Supplies – Total: $1,084,601
Hand Sanitizer: Increase supply to proactively provide
alcohol-based hand sanitizer when washing hands with
soap and water is not readily available.
3,715 cases x $41.76/case = $155,138
Hand Soap: Increase supplies to comply with hand
washing of at least 20 seconds per CDC guidelines.
3,173 cases x $43.25/case = $137,232
General Masks: Increase supply of general to protect
against dust and air pollutants
9 cases (20,800 masks/case) x $25,000/case = $225,000
N95 Masks: Increase supply of N95 masks that protect up
to 95% of all bacteria, virus, and fungi
550 boxes (20/box) x $62.40 = $34,320
Other Building Services Supplies - $532,911
C. Equipment – Total: $40,000
Clorox 360 System Machines: Purchase additional
disinfectant machines to clean and disinfect throughout the
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
district in efforts to meet EPA N-List recommendations for
use against SARS CoV-2.
10 machines x $4,000 = $40,000
Sub Total
$3,083,288
Virtual Summer
School through
Edgenuity
Activity Summary:
The Prince George's County Area Office reviewed the programs
used by high schools and chose Edgenuity. The Edgenuity
MyPath and Courseware programs provide intervention and
enrichment resources to support skill attainment aligned to
Maryland State Standards. The funds will be used to purchase
site licenses for students.
All middle school students will engage in virtual learning
experiences to include participation in Edgenuity.
Edgenuity is an online instructional program that is
available through the purchase of licenses. Students will
utilize the intervention model, a student adaptive
component, and courseware lessons, developed and aligned
to fourth quarter content standards during their participation.
Students participating in the courseware model are selected
due to failure in reading and mathematics and for students
where classrooms were covered by a long-term substitute
during the school year. Unique learning paths, online tutors
and teacher support will serve as a compliment to this virtual
experience. Content areas of focus will be mathematics and
RELA.
Budget Narrative:
$16 per unit license x 18,750 middle school students $300,000 +
$17,600 in non-license costs = $317,600.
Sub Total
$317,600
Curriculum
Writing/Instruction
(Summer Curriculum
Writing for 1st
quarter for 2020-
2021 content)
Activity Summary:
Prince George’s County Public Schools will be adjusting
the first quarter curriculum to ensure that critical standards
from the previous quarter 4 are addressed during the first
several weeks of the new year. These skills/standards will
spiral through the 2020-2021 school year. Additionally,
with adding these to the beginning of the documents, the
current First Quarter curriculums need to be adjusted and
ready for students by August 31, 2020.
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
Budget Narrative:
Salary – Total: $281,600
Workshop Pay:
64 Curriculum Writers will be paid the curriculum writing
rate, per the labor contract, for the creation of the
curriculum guides. As the system ensures learning of
essential quarter 4 standards and/or skills and processes,
curriculum documents for quarter 1 2020-2021 will need to
be readjusted. Content curriculum writers will be adjusting
quarter 1 instructional documents to reflect these changes
to the beginning of the document and then adjusting the
remaining weeks within the quarter. This will occur across
the Division of Academics. Writing activities will occur
between June 1 - August 15, 2020.
Approximately 22 (days), x 64 (2 FTE per 32 contents) x
$200 a day = approximately $281,600
Fringes – Total: $21,542
FICA will be paid for all salaries: $281,600 x .0765 =
$21,542
Sub Total
$303,142
Curriculum
Writing/Instruction
al Videos
Activity Summary:
Prince George’s County Public Schools is providing daily
access to Reading and Math PreK-5 lessons on PGCPS-TV
(channels 96 Comcast and 38 Verizon). If families do not
have cable, they are also able to watch shows on-demand
using the online schedule with links to programming.
Additionally, there is a rotation of Music, Art, Dance,
Physical Education, Montessori, and Immersion on
Fridays.
Budget Narrative:
A. Salary – Total: $58,800
Workshop Pay:
Curriculum Writers will be paid the curriculum writing
rate, per the labor contract, for each video created.
Teachers are asked to create videos aligned to the
instructional focus for each week established. Each week
there are seven reading, seven math, three electives, one
Montessori, and three Immersion videos each week. This
totals 21 videos a week. The date span for this activity is
April 14 - July 31, 2020.
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
Approximately 14 weeks, x 21 videos a week @ $200 per
video = $58,800
B. Fringes – Total: $4,498
FICA will be paid for all salaries: $58,800 x .0765 =
$4,498.
Sub Total
$63,298
Technology
Student Devices to
create 1 to 1
(Purchase of
student
Chromebooks will
be in preparation of
start of the 2020-
2021 School Year)
Activity Summary:
Prince George’s County Public Schools has provided a
student device (Chromebook) to students who have
indicated that they did not have access at home. A total of
65,000 devices have been distributed and counting. The
school district has been investing in Chromebooks with the
expectation of the device lasting four years. To date, more
than 25% of our devices need replacement. Pre-k and
Kindergarten will be receiving iPads. Grades 1 - 12 will be
receiving Chromebooks.
Budget Narrative:
Total - 20,000 Chromebooks x $312.49ea $6,249,800 +
206 iPads @ $1,000ea $206,000 = $6,455,800
Classroom
Management
System Software -
Web Filtering,
Classroom
Management, and
Instructional
Software (Purchase
will be made in
July 2020, in
preparation for start
of the 2020-2021
School Year)
Activity Summary:
In support of the delivery of instruction remotely, student
access to devices and wifi broadband a cloud-based
instructional classroom management system that focuses
on instruction of students and is capable of monitoring and
reporting interactions between teachers and their students
when students are logged into Google Chrome or the
Chrome OS using their PGCPS Google accounts. The
classroom management system is needed to manage and
monitor approximately 136,000 student devices and
additional estimated cost for outdoor Wi-Fi antennas.
Budget Narrative:
Total - 136,000 students x $7.35 per user
$999,600 + Wi-Fi antennas $313,282 = $1,312,882
Wifi Cost
(This purchase was
made in May 2020)
Activity Summary:
A total of 5,000 hotspots have been purchased. Monthly
cost for hotspots is $15.00 per device per month. In
addition, the school system is paying for families that
qualified for Comcast’s Internet Essentials and will be
paying for the monthly cost.
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
Budget Narrative:
Total: 7,625 devices x $200 per hotspot unit = $1,525,000
Sub Total
$9,293,682
Communications
Activity Summary:
The Office of Communications develops and maintains
Distance Learning and COVID-19 webpages to share the
latest information on these topics with families, community
members and staff. Communications staff also develops
publications, posts updates on social media, sends mass
emails and hosts tele town hall events to share updates and
field questions on distance learning and COVID-19.
Communications works closely with Academics staff to
create instructional videos for distance learning and
provide daily access to distance learning content through
the school system’s cable television channels (Comcast
Channel 96 and Verizon Channel 38).
Budget Narrative:
A. Tele Town Halls – Total: $44,000
An external contractor will provide tele town hall dial-in
services approximately every other month
Tele Town Hall Hosting Services – $11,000K per event x 4
= $44,000
Staffing – Moderating and call-in screening will be
provided at no additional cost by PGCPS volunteers
B. External Graphics and Video Production Support –
Total: $149,079
External contractors will provide approximately 12 videos
and 10 graphic design projects to help meet messaging
needs to PGCPS families, community members or staff.
Videography Fees – $6K per video x 4 = $24,000
Graphic Design Fees – $2,500 per project x 4 = $10,000;
TV Lessons - $53,200; Community Communications -
$61,879.
C. Digital and Video Equipment Upgrades – Total:
$221,300
Upgrade On-Air system to improve remote operations,
increase streaming capabilities, and have the ability to
broadcast zoom meetings. Current system is at end of life,
and can’t be updated.
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
Equipment and Installation $75,000
Upgrade Main Production Control Room to allow remote
location technologies like Skype, Zoom and other online
services to become a part of the studio production process.
Equipment & Installation – $146,300
D. Website Software – Total: $21,000
To support distance learning and move to online
distribution of all content, this software is necessary to
maintain website accessibility requirements for Section
508 compliance and monitor school and office websites for
accuracy and updated content.
Site-improve Software – $21,000
Total: $320,300
Sub Total
$435,379
Additional
Instruction Time–
30 days of additional
instruction for 30
minutes
Activity Summary:
There are many factors to consider as PGCPS prepares to
open its doors to staff and students. One in particular, is
compensating for any learning loss associated with school
closures. Our goal is to extend the school day versus
adding additional days to the school year. All teachers and
students, PreK-12, will have an extra 30 minutes per day
for 30 days that will be used for academic interventions
designed to deliver 4th quarter and 1st quarter content.
The current school schedule in PGCPS far exceeds the
minimum with six hours and 10 minutes for elementary
and special schools K-12, and six hours and 40 minutes for
K-8 academies, middle school, and high school. An
additional 30 minutes would increase the daily
instructional time to six hours and 40 minutes and seven
hours and 10 minutes, respectively. The additional
minutes for the first thirty days is reflected in the chart
below.
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
Budget Narrative:
A. Salary - $10,073,528
The below amounts cover the salary of all full-time and
part-time school-based employees (excluding 12-month
school administrators) and bus drivers for an additional
900 minutes of work (30 minutes/day * 30 school days):
Mid-Level Administration (202): $419,324
Instructional Salaries and Wages (203): $6,645,740
Special Education (206): $1,923,429
Student Personnel Services (207): $127,724
Student Health Services (208): $134,274
Student Transportation Services (209): $495,176
Operation of Plant Services (210): $80,892
Food Service (213): $216,039
Community Services (214): $30,930
B. Fringe Benefits - $972,095
FICA (7.65%) and Workers Compensation (2.00%)
employer payments for the above salaries.
$10,073,527*(7.65% + 2.00%) = $972,095
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
C. Utility Costs - $319,694
Additional utility costs associated with additional 900
minutes:
Water & Sewer: $56,461
Fuel Oil: $33,201
Electricity: $92,137
Natural Gas: $137,142
Propane Gas: $753
Sub Total
$11,365,317
Trauma-Informed
Care Supports for
Teachers, Students
and their Families
due to COVID-19
Activity Summary:
PGCPS will provide training to teachers and administrators
on the components of trauma and its impact as experienced
by students during COVID-19. This training will also
provide insight to educators on how student’s learning and
their behavior is affected by trauma. Lastly, the training
will help schools develop safe environments for schools in
supporting students whose trauma may manifest in ways
previously met with school exclusion. Additionally, insight
is intended to support staff’s mental health, increase
student engagement and reduce incidences of suspension
as a result of student infraction.
Budget Narrative:
A. Trauma Organization/Trainer/Model - $145,000
($100/teacher x 1,450 teachers) = $145,000
B. Workshop Pay to Staff - $253,750
($250/day x1,450 teachers = $362,500)
C. Fringe Benefits:
FICA (7.65%) and Workers Compensation (2.00%)
362,500 x .0765 = $27,732
362,500 x .02 = $7,250
Total Project: $145,000 Trainer + $362,500 Workshop
Pay + $34,982 Fringes = $542,482
Sessions will be offered during the summer (one day).
Sessions will also be offered during the school year where
participants will attend two (3.5-hour sessions) afternoon
sessions.
Sub Total
$542,482
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
ESY Enrollment
Expansion
Activity Summary:
ESY is a program that is legally mandated under the
Individuals with Disability Education Act (IDEA) to
maintain a free and appropriate public education (FAPE).
The ESY program provides special education and related
service to students with disabilities beyond the regular
school year in accordance with his/her Individual
Education Program (IEP). ESY will serve appropriately
3,800 students during the extended school year program.
The number of students exceeded last year's student count
by 1,675 students due to COVID-19 school closure. The
increased number of students attending ESY is based on
IEP team eligibility determination decisions due to loss of
instructional time and regression.
Budget Narrative:
Salary – Total: $1,355,092
Teachers and Related Service Personnel:
Classroom Teachers will provide online distance learning
and complete IEPs and required documentation. Related
Service Personnel to include speech, occupational and
hearing therapists will provide supplementary aids and
services outlined in a student's IEP for ESY. Teachers and
related service personnel will work a 4-hour 4-day
workweek over 4 weeks during the Extended School Year
Program.
285 Teachers X $61.29 Rate X 4 hours X 4 days per week
X 4 weeks = $1,117,930
51 Related Service Staff X $72.66 Rate X 4 hours X 4 days
per week X 4 weeks = $237,162.
Fringes – Total: $130,766
FICA (7.65%) and Workers Compensation (2.00%)
will be paid for all salaries:
$1,355,092 x .0765 = $103,664
$1,355,092 x .02 = 27,102
Sub Total
$1,485,858
Academic Materials
Printing Cost for Student Instructional Materials:
Academic Packets to Students - $111,717
Other Academic Expenses: - $26,625
Sub Total
$138,342
Food Service
Food Service Supplies to Serve Student Meals - $505,046
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 206 of 355
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ACTIVITIES
BUDGET NARRATIVE DESCRIPTION
TOTALS
Supplies
Sub Total
$505,046
Total Direct Costs
$29,117,089
Indirect Cost
FY20 Indirect Cost - 3.37% (Total Grant – Equipment –
Transfers / 1+rate x rate) $30,031,745 – 467,300 – 1,508,655
/1.0337 x .0337
$ 914,656
TOTAL
$30,031,745
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Part II – Budget Documents
Please submit a completed C125 workbook with the application.
The MSDE C-1-25 budget workbook that aligns with the activities identified in Question #5 of
the application. The completed MSDE C-1-25 budget workbook accompanies the application.
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EXHIBIT 9
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF GABRIEL C. BACA
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Declaration of Gabriel C. Baca (3:20-cv-04478-SK)
DECLARATION OF GABRIEL C. BACA
I, Gabriel C. Baca, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
1.
I am the Student, School and Family Support Bureau (Title I) Director at the New
Mexico Public Education Department (PED) located in New Mexico. My educational
background includes an Ed.D. in Educational Administration and an M.A. in Secondary
Education, both from the University of New Mexico. I have been employed as Title I Director
since June 2018. I have worked 28 years in education, 14 of these years have been at PED in
Title I, Special Education and other federal programs, and the balance have been at the district
and classroom level, administering federal programs and teaching.
2.
Currently, my duties at PED include management and oversight of all
programmatic and fiscal aspects of the Title I-A and Title I-D programs, the Rural, Low-income
Schools program, CARES Act ESSER Fund, and the agency’s planning for and implementation
of the Multi-Layered System of Supports, PED’s adaptation of Response to Intervention.
3.
I submit this Declaration to provide information for the State of New Mexico’s
litigation against Elisabeth D. DeVos, in her official capacity as Secretary of Education, and the
United States Department of Education (the “Department”) regarding the recently issued Rule
entitled Providing Equitable Services to Students and Teachers in Non-public Schools, 85 Fed.
Reg. 39479 (July 1, 2020), (the “Equitable Services Rule” or the “Rule”). I have compiled the
information in the statements set forth below through personal knowledge, through PED
personnel who have assisted me in gathering this information, and on the basis of documents that
have been provided to and/or reviewed by me. I have also familiarized myself with the Rule in
order to understand its immediate impact on PED and public schools in New Mexico.
4.
Article 12 of the New Mexico Constitution addresses education; Section 6
establishes the Public Education Department, a cabinet-level agency, headed by the Secretary of
Public Education. The department has such powers and duties as are provided by law. The
secretary has administrative and regulatory powers and duties as provided by law, including all
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functions related to the distribution of school funds and financial accounting for the public
schools.
The Public School Code – Chapter 22 of the New Mexico Statutes Annotated (1973) – is the
body of New Mexico law that primarily addresses public education. Sections 22-2-1 and 22-2-2
NMSA 1978 provide for the general powers of the secretary and department. The remainder of the
Code addresses particular public school programs, the public school funding formula, school
standards and graduation standards, school personnel, charter schools, vocational education, school
transportation, and diverse other matters related to the administration, regulation, and oversight of
public education in New Mexico.
Title 6 of the New Mexico Administrative Code, Primary and Secondary Education, contains
the many rules promulgated by the Public Education Department, either explicitly or implicitly
required by law, to properly administer public education in the state.
The Martinez and Yazzie v. New Mexico1 consolidated lawsuit primarily addresses the
education in New Mexico of those students considered at-risk: Native American students, students
with disabilities, English learners, and economically disadvantaged students. The court found in that
case that New Mexico had failed its constitutional duty to provide these students with an education
sufficient to prepare them for college and career. Since the ruling, numerous legislation,
appropriations, regulations, and policies have been amended and adopted in an attempt to address the
deficiencies noted by the court and offer our most at-risk students the opportunities to which they are
constitutionally entitled.
5.
The agency’s primary responsibility is for K-12 education, though it also shares some
authority over prekindergarten instruction with the newly created Early Childhood Education and Care
Department. With the legislature, PED helps prepare education-related legislation and policy. PED,
based on legislative appropriations, sets the per-pupil funding value for the public schools, holds an
annual convention to assist schools in developing their budgets, and is generally responsible for
1 Yazzie v. State, No. D-101-CV-2014-02224, 2017 WL 3780960 (N.M. Dist. filed June 5,
2017) (consolidated with, Martinez v. State, whereby plaintiffs contended a lack of sufficient
means to receive a proper education for Native American, Hispanic, and English Learner
students).
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administering the public school funding formula. The department is responsible, at least as a pass-
through if not as the actual agent, for the administration of most federal grants and programs, though
some of those relationships are fostered directly between the federal government and local educational
agencies. PED sets curriculum standards and benchmarks for student proficiency and high school
graduation, and is responsible for determining which standardized assessments are administered and
for setting end-of-course evaluations. Apropos, the department tracks, compiles, and analyzes student
achievement data.
The Public Education Department is the agency that licenses teachers and other certified school
personnel, such as administrators and educational assistants. As such, it investigates licensure
complaints and potential violations, and administers penalties. The department’s advisory panel on
the administration of the special education, required by the Individuals with Disabilities Education
Act, provides guidance for special education and related services for students with disabilities. The
department also provides technical assistance to school districts related to capital outlay funding and
procedures. It reviews and approves all potential lease-purchase arrangements between the public
schools and potential lessors, as well as requests from school districts and schools to dispose of certain
kinds of property within constitutional and statutory parameters.
Related to the Martinez and Yazzie consolidated lawsuit, PED maintains advisory panels for
and oversees the implementation of the Hispanic Education Act, the Indian Education Act, and the
Multicultural and Bilingual Education Act, requiring culturally and linguistically relevant instruction
and support for the state’s diverse student body. The agency is the general primary authority for
providing students with the educational foundation to prepare them for college and career, and includes
oversight of career and technical education, next step plans for students approaching secondary
education and graduation, and working in partnership with the Higher Education Department and the
Workforce Solutions Department to help recent and rising graduates to prepare for life after the
completion of their secondary education.
Generally, the Public Education Department is the main authority for the administration,
oversight, and fiscal direction of the public schools in New Mexico.
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6.
In 2020, legislators appropriated $3.468 billion in state funds for public education
from prekindergarten through secondary schools.
7.
PED oversees 89 school districts and 50 state-authorized charter schools, for a
total of 139 LEAs. These LEAs serve 328,821 students in grades preK through 12.
8.
In New Mexico, for the 2020-21 school year, 137 LEAs (87 districts and 50 state-
authorized charter schools) will receive Title I-A funds. These 87 districts contain 638 Title I
schools serving approximately 241,065 students. The total of 2019-20 Title I final awards to
LEAs in New Mexico was $119,542,263.00.
9.
There are approximately 190 private schools within the boundaries of 34 New
Mexico Title I Districts.2
Effects of the COVID-19 Pandemic on Education in New Mexico
10.
The COVID-19 pandemic has drastically impacted K-12 education in New Mexico.
In mid-March 2020, schools abruptly shifted to an online instructional model. PED has engaged
in frequent communication with superintendents and charter school leaders. The Secretary and
Deputy Secretaries have provided extensive guidance and have held weekly and twice weekly
Zoom meetings with leaders. PED required all LEAs to submit Continuous Learning Plans
(https://webnew.ped.state.nm.us/continuous-learning-plan-support/) describing how they will
continue to provide education during the time schools are closed. PED has made Reentry and
school guidance resources available to schools and families
(https://webnew.ped.state.nm.us/reentry-district-and-school-guidance/).
CARES Act ESSER Funds Received by New Mexico For K-12 Education3
11.
In order to receive the CARES Act ESSER funds designated for New Mexico and
as required by the Department, PED executed a Certification and Agreement form and submitted
2 New Mexico does not maintain a list of names or an accurate count of all of the private
schools within the state.
3 To my knowledge, as of July 15, 2020, final decisions regarding GEER funds for New
Mexico have not be made.
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Declaration of Gabriel C. Baca (3:20-cv-04478-SK)
it to the Department on April 30, 2020.4 A true and correct copy of the Certification and
Agreement completed by [SEA] and submitted to the Department is attached hereto as Exhibit A.
12.
Within this Certification and Agreement, [SEA] agreed to the following terms:
I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of
the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act,
31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted
and amended as regulations of the Department in 2 CFR part 3485; and 18
USC § 1001, as appropriate.
. . .
4. LEAs receiving ESSER funds will provide equitable services to students
and teachers in non-public schools as required under 18005 of Division B
of the CARES Act.
. . .
5. LEA receiving ESSER funds will provide equitable services to students
and teachers in non-public schools located within the LEA in the same
manner as provided under section 1117 of the ESEA, as determined
through timely and meaningful consultation with representatives of non-
public schools.
[Ex. A at pp. 1-2.]
13.
At the time that PED executed the Certification and Agreement form, the
Department had not yet published its Guidance Document or the Rule. Accordingly, PED was
unaware that the Department would subsequently issue rules to change the required proportional
share calculation for equitable services required under the CARES Act.
14.
The Department distributed $108,574,786 from the ESSER Fund to PED on May
4, 2020.
15.
Of the ESSER funds received by PED, PED has retained $10,857,479, or 10
percent of the award, as permitted by the CARES Act to administer the fund (one-half of one
percent) and make awards (nine and one-half percent) to educational entities including LEAs for
4 U.S. Dep’t of Educ., Certification and Agreement for Funding under the Education
Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund (ESSER
Fund), CFDA Number 84.425D, April 24, 2020, available at
https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf.
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the following COVID-19 related purposes: Closing the Digital Divide (mobile devices, internet
connectivity, professional development for online learning, and related purposes); Social and
Emotional Learning supports; Supporting students with disabilities and students in need of at-risk
services (during a building closure or during a transition back into the school building); PPE,
building sanitization and cleaning supplies; and Other (to be determined as needs emerge during
the return to school and during the school year).
16.
In order to receive the ESSER 90 percent award, LEAs were required to submit an
application, with assurances, to PED. On May 14, 2020, PED released a six-page guidance
memo with the application as well as application instructions. Along with the application, LEAs
were required to submit a budget for the fund that was consistent with the application. After an
LEA’s application and budget are approved, the LEA may submit a request for reimbursement
(RFR) against the ESSER 90 percent funds to PED. PED staff approve the RFR for payment
after they have reviewed the expenses and found them to be allowable per the CARES Act and
the approved LEA application.
17.
To date, PED has distributed $97,086,484.70 in ESSER funds to all 136 eligible
LEAs within New Mexico.
18.
PED held back $630,822.30 from the ESSER 90 percent award for “new charter
school LEAs or charter school LEAs that will significantly expand in school year 2020-2021” per
the ESSER Fund Frequently Asked Questions guidance document
(https://oese.ed.gov/offices/education-stabilization-fund/elementary-secondary-school-
emergency-relief-fund/).
19.
Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), districts in New Mexico have designated
$792,430.85 in ESSER funds to provide equitable services to private school students.5
5 The amount of $792,430.85 will change, as Albuquerque Public Schools (APS), which is
New Mexico’s largest district (approx.. 27.13% of students in the state) recently decided to follow
the Department’s Guidance Document.
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20.
However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, Districts in New Mexico would have
designated a larger dollar amount to provide equitable services to private school students. If all
districts choose to calculate equitable services amounts using this methodology, more private
schools may opt to participate in receiving these services under the CARES Act, and this would
result in additional funds being designated for equitable services in these schools and less funds
benefiting public schools.
21.
The Department’s Guidance Document and Rule place PED in legal jeopardy.
PED was required to certify in its ESSER Fund application that the SEA and the districts will
comply with the equitable service provision of the CARES Act (§ 18005) and “any other
applicable law or regulation.” (Ex. A at p. 1.) Because the Guidance Document and the Rule
require districts to calculate the proportional share for equitable services and determine eligibility
of private school students for equitable services contrary to the proportional share calculation and
eligibility requirements in the CARES Act, PED (and its districts) cannot satisfy both the Rule
and the CARES Act. Accordingly, the Department’s Rule forces PED to violate Section 18005 of
the CARES Act, placing PED in breach of the certification in the Certification and Agreement
and subjecting PED to “liability under the False Claims Act, . . . [and the] OMB Guidelines to
agencies on Governmentwide Debarment and Suspension (Nonprocurement).” (Ex. A at p. 1.)
22.
As the districts in New Mexico are already using ESSER funds to assist with the
numerous pandemic-related challenges, this legal jeopardy will impact PED immediately.
23.
The Department’s Guidance and Rule may result in less funding being distributed
to public K-12 schools in no fewer than 34 New Mexico districts.
24.
If districts in New Mexico calculate the proportional share of CARES Act funds
for private school students under Option #1 in the Rule, non-Title I schools in up to 18 districts
receiving CARES Act funds will receive no funds. In New Mexico, there are approximately 119
non-Title I schools in these 18 districts (that contain private schools in their boundaries) that
would not receive any CARES Act funding under this option. In addition, under this option, there
are approximately 142 Title I schools in 16 New Mexico districts that would have restrictions on
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EXHIBIT A
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 220 of 355
U.S. Department of Education
Certification and Agreement
for Funding under the
Education Stabilization Fund Program
Elementary and Secondary School Emergency Relief
Fund (ESSER Fund)
CFDA Number: 84.425D
OMB Number: 1810-0743
Expiration Date: 10/31/2020
Paperwork Burden Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless
such collection displays a valid OMB control number. The OMB control number for this information collection is 1810-
0743. The time required to complete this information collection is estimated to average 5 hours per response, including time
for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. The obligation to respond to this collection is required to obtain benefit
under the Coronavirus Aid, Relief, and Economic Security Act. If you have any comments concerning the accuracy of
the time estimate, suggestions for improving this individual collection, or if you have comments or concerns regarding
the status of your individual form, application or survey, please contact Christopher Tate, Office of Elementary and
Secondary Education, U.S. Department of Education, 400 Maryland Ave., S.W., Room 3E229, Washington, D.C. 20202
directly.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 221 of 355
PROGRAM BACKGROUND INFORMATION
Purpose
Under the Elementary and Secondary School Emergency Relief Fund (ESSER Fund), the
Department awards grants to State educational agencies (SEAs) for the purpose of providing local
educational agencies (LEAs), including charter schools that are LEAs, with emergency relief funds
to address the impact that Novel Coronavirus Disease 2019 (COVID-19) has had, and continues to
have, on elementary and secondary schools across the nation. LEAs must provide equitable services
to students and teachers in non-public schools as required under the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act).
Eligibility
SEAs in any of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
Timeline
The SEA will have one year, from the date of its ESSER award, to award funds. Any funds not
awarded by the SEA within one year of receiving its award will be returned to the Department to be
reallocated to other States consistent with the CARES Act.
Uses of Funds
SEAs:
The SEA must use no less than 90 percent of its allocation to make subgrants to LEAs, including
charter schools that are LEAs, based on each LEA’s share of funds received under part A of title I
of the ESEA in fiscal year 2019. With the funds not subgranted to LEAs, the SEA may reserve up
to an amount equal to ½ of 1 percent of the total allocation for administrative costs, and the
remaining funds may be used for emergency needs as determined by the SEA to address issues
responding to COVID-19. These emergency needs may be addressed through the use of grants or
contracts.
LEAs:
LEAs may use funds for any purposes listed in section 18003(d) of the CARES Act. (See Appendix
A.)
Program Contact
For additional information, please contact Christopher Tate by telephone at (202) 453-6047 or by
email at ESSERF@ed.gov.
ii
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CERTIFICATION AND AGREEMENT INSTRUCTIONS
To receive an ESSER Fund allocation, SEAs must submit to the Department the following
information:
x
A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
x
Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
x
Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
x
Other assurances and certifications. (Part D of the Certification and Agreement)
For purposes of this document, the term “Certification and Agreement” is the application that an
SEA is required to file under section 18003(a) of Division B of the CARES Act.
Certification and Agreement Submission Information
An SEA must submit a Certification and Agreement to the Department no later than July 1, 2020.
Please submit your Certification and Agreement to the Department as follows:
Email an electronic version of the ESSER Fund Certification and Agreement in .PDF (Portable
Document Format) to ESSERF@ed.gov.
APPENDICES
Appendix A – Authorizing Statute
Appendix B – State Allocation Table
iii
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 223 of 355
ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF
FUND (ESSER FUND)
STATE EDUCATIONAL AGENCY
PART A: CERTIFICATION AND AGREEMENT COVER SHEET
State:
CFDA Number: 84.425D
Legal Name:
DUNS Number:
Chief State School Officer:
Mailing Address:
State Contact for Elementary and Secondary School Emergency Relief Fund:
Position and Office:
Mailing Address:
Telephone:
Email address:
To the best of my knowledge and belief, all the information and data in this agreement are true and correct. I
acknowledge and agree that the failure to comply with all Assurances and Certifications in this Agreement, all
relevant provisions and requirements of the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act, 31 U.S.C. § 3729, et seq.; OMB
Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180,
as adopted and amended as regulations of the Department in 2 CFR part 3485; and 18 USC § 1001, as
appropriate.
Chief State School Officer or Authorized Representative (Typed Name):
Telephone:
Signature of Chief State School Officer or Authorized Representative:
Date:
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
New Mexico
New Mexico Public Education Dept.
808561690
Ryan Stewart, Ed.L.D.
300 Don Gaspar, Santa Fe, NM 87501
Adán Delgado
Deputy Cabinet Secretary, Finance and Operations
300 Don Gaspar, Santa Fe, NM 87501
505-690-5412
adan.delgado@state.nm.us
505-795-1009
Ryan Stewart, Ed.L.D, New Mexico Secretary of Education
04/30/2020
Ryan Stewart
Digitally signed by Ryan Stewart
Date: 2020.04.30 08:44:40 -04'00'
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 224 of 355
PART B: PROGRAMMATIC, FISCAL, AND REPORTING ASSURANCES
The [Chief State School Officer or his/her authorized representative] assures the following:
1. The SEA will allocate no less than 90 percent of the grant funds under this program to local
educational agencies (LEAs) (including charter schools that are LEAs) in the State. Under the
ESSER Fund, the SEA will award grants by formula to State educational agencies (SEAs) for
the purpose of providing LEAs, including charter schools that are LEAs, with emergency relief
funds to address the impact that the Novel Coronavirus Disease 2019 (COVID-19) has had, and
continues to have, on elementary and secondary schools across the Nation. This includes both
continuing to provide educational services, such as remote learning, while schools and
campuses are closed, and developing and implementing plans for the return to normal
operations. The SEA will allocate these funds to LEAs on the basis of their respective shares of
funds received under title I, part A of the Elementary and Secondary Education Act of 1965 in
fiscal year 2019.
2. The SEA will use the remaining funds (hereafter SEA reserve) for emergency needs as
determined by the SEA to address issues related to COVID-19, which may be addressed through
the use of grants or contracts. From an SEA’s reserve, the SEA may use not more than 1/2 of 1
percent of the SEA’s total grant for administrative costs.
3. The SEA will ensure that LEAs use ESSER funds for activities allowable under section
18003(d) of Division B of the CARES Act. (See Appendix A.)
The Department generally does not consider the following to be an allowable use of ESSER
funds, under any part of 18003: 1) subsidizing or offsetting executive salaries and benefits of
individuals who are not employees of the SEA or LEAs or 2) expenditures related to state or
local teacher or faculty unions or associations.
4. The SEA will ensure that LEAs receiving ESSER funds will provide equitable services to
students and teachers in non-public schools as required under 18005 of Division B of the
CARES Act.
5. The SEA will ensure that an LEA receiving ESSER funds will provide equitable services to
students and teachers in non-public schools located within the LEA in the same manner as
provided under section 1117 of the ESEA, as determined through timely and meaningful
consultation with representatives of non-public schools.
x
The SEA will ensure that a public agency will maintain control of funds for the services
and assistance provided to a non-public school under the ESSER Fund.
x
The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
x
The SEA will ensure that services to a non-public school with ESSER funds will be
provided by a public agency directly, or through contract with, another public or private
entity.
6. The SEA will comply with the maintenance of effort provision in Section 18008(a) of Division
B of the CARES Act absent waiver by the Secretary pursuant to Section 18008(b) thereof.
7. The SEA and each LEA and any other entity that receives ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
2
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 225 of 355
any disruptions or closures related to COVID-19 in compliance with Section 18006 of Division
B of the CARES Act. In addition, each entity that accepts funds will continue to pay employees
and contractors to the greatest extent practicable based on the unique financial circumstances of
the entity. CARES Act funds generally will not be used for bonuses, merit pay, or similar
expenditures, unless related to disruptions or closures resulting from COVID-19.
8. The SEA must assure that, when applicable, it will provide technical assistance to LEAs on the
use of ESSER funds for remote learning, which includes both distance education as defined in
section 103(7) of the HEA and distance learning as defined in ESEA section 8101(14), so that
students can continue learning during school closures.
9. The SEA will comply with all reporting requirements, including those in Section 15011(b)(2) of
Division B of the CARES Act, and submit required quarterly reports to the Secretary at such time
and in such manner and containing such information as the Secretary may subsequently require.
(See also 2 CFR 200.327-200.329). The Secretary may require additional reporting in the future,
which may include: the methodology LEAs will use to provide services or assistance to students
and staff in both public and non-public schools, the uses of funds by the LEAs or other entities
and demonstration of their compliance with Section 18003(d), such as any use of funds
addressing the digital divide, including securing access to home-based connectivity and remote-
use devices, related issues in supporting remote learning for all students, including disadvantaged
populations.
10. The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
x
A budget for the SEA’s reserve that includes information about the up to 1/2 of 1 percent
of the SEA’s total grant for administrative costs and the uses of funds for emergency
needs to address issues related to COVID-19; and
x
An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
11. The SEA will ensure that every recipient and subrecipient of ESSER funds will cooperate with
any examination of records with respect to such funds by making records available for inspection,
production, and examination, and authorized individuals available for interview and examination,
upon the request of (i) the Department and/or its Inspector General; or (ii) any other federal
agency, commission, or department in the lawful exercise of its jurisdiction and authority.
12. The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within 1 year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name): Ryan Stewart, Ed.L.D,
New Mexico Secretary of Education
Signature:
Date:
3
4/30/20
Ryan Stewart
Digitally signed by Ryan Stewart
Date: 2020.04.30 08:45:05 -04'00'
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 226 of 355
PART C: USES OF ELEMENTARY AND SECONDARY SCHOOL
EMERGENCY RELIEF FUNDS
Section 18003 of Division B of the CARES Act provides in relevant part that grants awarded under
the Elementary and Secondary School Emergency Relief Fund be used to support the ability of local
educational agencies (LEAs) to continue to provide educational services to their students. The
Department requests the following:
1. Information that the SEA may request LEAs to include in their subgrant applications to the
SEA. For example, an SEA might propose to include the following in developing its subgrant
application:
x
How the LEA will determine its most important educational needs as a result of COVID-
19.
x
The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
x
The extent to which the LEA intends to use ESSER funds to promote remote learning.
x
How the LEA intends to assess and address student learning gaps resulting from the
disruption in educational services.
The above considerations are in addition to the application information requirements from
sections 442 and 427 of the General Education Provisions Act (GEPA) (20 U.S.C. § 1232e and
§ 1228a).
4
Given the pressing needs our LEAs face in light of COVID-19, we intend to use a
streamlined application process.
We will collect assurances that LEAs will comply with all applicable federal
requirements, including allowable uses of funds, reporting, financial management, and
recordkeeping requirements. We will also ask LEAs to provide budgets describing how
they intend to spend ESSER funds.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 227 of 355
2. The extent to which the SEA intends to use any portion of its SEA reserve (up to 10 percent of
its ESSER Fund award) to support:
x
technological capacity and access – including hardware and software, connectivity, and
instructional expertise – to support remote learning. If so, please describe the strategies
the SEA intends to use to serve disadvantaged populations listed in Sec. 18003(d)(4) of
the CARES Act; and
x
remote learning by developing new informational and academic resources and
expanding awareness of, and access to, best practices and innovations in remote learning
and support for students, families, and educators.
5
The New Mexico Public Education Department proposes to allocate the 9.5% of ESSER
funds available for distribution at the discretion of the SEA to education entities,
including LEAs, for the following purposes:
v
Closing the Digital Divide (mobile devices, internet connectivity, professional
development for online learning, and related purchases): 60%
v
Social and Emotional Learning Supports: 19%
v
Supporting students with disabilities and students in need of at-risk services (during a
building closure or during a transition back into the school building): 10%
v
PPE, Building Sanitization and Cleaning Supplies: 2%
v
Other, to be determined as needs emerge during the return to school and during the
school year: 9%
Any funds not fully expended from a category will be shifted to other categories as needed.
NMPED will distribute funds via grants. Education entities’ eligibility for these grants
will be based in part on their percentage and/or number of low-income children or
students, children with disabilities, English learners, racial and ethnic minorities, students
experiencing homelessness, and foster care youth.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 228 of 355
PART D: OTHER ASSURANCES AND CERTIFICATIONS
The [Chief State School Officer or his/her authorized representative] assures or certifies the
following:
1. The SEA will comply with all applicable assurances in OMB Standard Forms 424B and D
(Assurances for Non-Construction and Construction Programs), including the assurances
relating to the legal authority to apply for assistance; access to records; conflict of interest; merit
systems; nondiscrimination; Hatch Act provisions; labor standards; flood hazards; historic
preservation; protection of human subjects; animal welfare; lead-based paint; Single Audit Act;
and the general agreement to comply with all applicable Federal laws, executive orders and
regulations.
2. With respect to the certification regarding lobbying in Department Form 80-0013, no Federal
appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with the making or renewal
of Federal grants under this program; the SEAe will complete and submit Standard Form-LLL,
“Disclosure Form to Report Lobbying,” when required (34 C.F.R. Part 82, Appendix B); and the
SEA will require the full certification, as set forth in 34 C.F.R. Part 82, Appendix A, in the
award documents for all subawards at all tiers.
3. Any LEA receiving funding under this program will have on file with the SEA a set of
assurances that meets the requirements of section 442 of the General Education Provisions Act
(GEPA) (20 U.S.C. 1232e).
4. To the extent applicable, an LEA will include in its local application a description of how the
LEA will comply with the requirements of section 427 of GEPA (20 U.S.C. 1228a). The
description must include information on the steps the LEA proposes to take to permit students,
teachers, and other program beneficiaries to overcome barriers (including barriers based on
gender, race, color, national origin, disability, and age) that impede equal access to, or
participation in, the program.
5. The SEA will comply with the Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (Uniform Guidance) requirements in Subpart D—Post
Federal Award Requirements (2 CFR §§200.300-345) and Subpart E—Cost Principles (2 CFR
§ §200.400-475) to ensure that LEAs, including charter schools that are LEAs, are using ESSER
funds for purposes that are reasonable, necessary, and allocable under the CARES Act.
6. The SEA and other entities will comply with the provisions of all applicable acts, regulations
and assurances; the following provisions of Education Department General Administrative
Regulations (EDGAR) 34 CFR parts 76, 77, 81, 82, 84, 97, 98, and 99; the OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180,
as adopted and amended as regulations of the Department in 2 CFR part 3485; and the Uniform
Guidance in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR
part 3474.
Chief State School Officer or Authorized Representative (Printed Name): Ryan Stewart, Ed.L.D,
New Mexico Secretary of Education
Signature:
Date:
6
04/30/2020
Ryan Stewart
Digitally signed by Ryan Stewart
Date: 2020.04.30 08:45:52 -04'00'
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 229 of 355
Appendix A: Relevant Excerpts from Title VIII of Division B of the CARES
Act, the Emergency Appropriations for Coronavirus Health Response and
Agency Operations
DEPARTMENT OF EDUCATION
EDUCATION STABILIZATION FUND
For an additional amount for ‘‘Education Stabilization Fund’’, $30,750,000,000, to remain available
through September 30, 2021, to prevent, prepare for, and respond to coronavirus, domestically or
internationally: Provided, That such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency
Deficit Control Act of 1985.
GENERAL PROVISIONS
EDUCATION STABILIZATION FUND
SEC. 18001. (a) ALLOCATIONS.—From the amount made available under this heading in this Act
to carry out the Education Stabilization Fund, the Secretary shall first allocate—
(1) not more than 1/2 of 1 percent to the outlying areas on the basis of their respective needs, as
determined by the Secretary, in consultation with the Secretary of the Interior;
(2) one-half of 1 percent for the Secretary of Interior, in consultation with the Secretary of
Education, for programs operated or funded by the Bureau of Indian Education; and
(3) 1 percent for grants to States with the highest coronavirus burden to support activities under this
heading in this Act, for which the Secretary shall issue a notice inviting applications not later than
30 days of enactment of this Act and approve or deny applications not later than 30 days after
receipt.
(b) RESERVATIONS.—After carrying out subsection (a), the Secretary shall reserve the remaining
funds made available as follows:
(1) 9.8 percent to carry out section 18002 of this title.
(2) 43.9 percent to carry out section 18003 of this title.
(3) 46.3 percent to carry out section 18004 of this title.
ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF FUND
SEC. 18003. (a) GRANTS.—From funds reserved under section 18001(b)(2) of this title, the
Secretary shall make elementary and secondary school emergency relief grants to each State
educational agency with an approved application. The Secretary shall issue a notice inviting
applications not later than 30 days of enactment of this Act and approve or deny applications not
later than 30 days after receipt.
(b) ALLOCATIONS TO STATES.—The amount of each grant under subsection (a) shall be
allocated by the Secretary to each State in the same proportion as each State received under part A
of title I of the ESEA of 1965 in the most recent fiscal year.
(c) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—Each State shall allocate not less
than 90 percent of the grant funds awarded to the State under this section as subgrants to local
educational agencies (including charter schools that are local educational agencies) in the State in
proportion to the amount of funds such local educational agencies and charter schools that are local
educational agencies received under part A of title I of the ESEA of 1965
in the most recent fiscal year.
(d) USES OF FUNDS.—A local educational agency that receives funds under this title may use the
funds for any of the following:
7
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(1) Any activity authorized by the ESEA of 1965, including the Native Hawaiian Education Act and
the Alaska Native Educational Equity, Support, and Assistance Act (20 U.S.C. 6301 et seq.), the
Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) (‘‘IDEA’’), the Adult
Education and Family Literacy Act (20 U.S.C. 1400 et seq.), the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) (‘‘the Perkins Act’’), or subtitle B of title
VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.).
(2) Coordination of preparedness and response efforts of local educational agencies with State,
local, Tribal, and territorial public health departments, and other relevant agencies,
to improve coordinated responses among such entities to prevent, prepare for, and respond to
coronavirus.
(3) Providing principals and others school leaders with the resources necessary to address the needs
of their individual schools.
(4) Activities to address the unique needs of low-income children or students, children with
disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and
foster care youth, including how outreach and service delivery will meet the needs of each
population.
(5) Developing and implementing procedures and systems to improve the preparedness and
response efforts of local educational agencies.
(6) Training and professional development for staff of the local educational agency on sanitation
and minimizing the spread of infectious diseases.
(7) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including
buildings operated by such agency.
(8) Planning for and coordinating during long-term closures, including for how to provide meals to
eligible students, how to provide technology for online learning to all students,
how to provide guidance for carrying out requirements under the Individuals with Disabilities
Education Act (20 U.S.C. 1401 et seq.) and how to ensure other educational services can continue
to be provided consistent with all Federal, State, and local requirements.
(9) Purchasing educational technology (including hardware, software, and connectivity) for students
who are served by the local educational agency that aids in regular and substantive
educational interaction between students and their classroom instructors, including low-income
students and students with disabilities, which may include assistive technology
or adaptive equipment.
(10) Providing mental health services and supports.
(11) Planning and implementing activities related to summer learning and supplemental afterschool
programs, including providing classroom instruction or online learning
during the summer months and addressing the needs of low-income students, students with
disabilities, English learners, migrant students, students experiencing homelessness, and
children in foster care.
(12) Other activities that are necessary to maintain the operation of and continuity of services in
local educational agencies and continuing to employ existing staff of the local educational agency.
(e) STATE FUNDING.—With funds not otherwise allocated under subsection (c), a State may
reserve not more than 1/2 of 1 percent for administrative costs and the remainder for emergency
needs as determined by the state educational agency to address issues responding to coronavirus,
which may be addressed through the use of grants or contracts.
(f) REALLOCATION.—A State shall return to the Secretary any
funds received under this section that the State does not award within 1 year of receiving such funds
and the Secretary shall reallocate such funds to the remaining States in accordance with
subsection (b).
8
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ASSISTANCE TO NON-PUBLIC SCHOOLS
SEC. 18005. (a) IN GENERAL.—A local educational agency receiving funds under sections 18002
or 18003 of this title shall provide equitable services in the same manner as provided under section
1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in
consultation with representatives of non-public schools.
(b) PUBLIC CONTROL OF FUNDS.—The control of funds for the services and assistance
provided to a non-public school under subsection (a), and title to materials, equipment, and property
purchased with such funds, shall be in a public agency, and a public agency shall administer such
funds, materials, equipment, and property and shall provide such services (or may contract for the
provision of such services with a public or private entity).
CONTINUED PAYMENT TO EMPLOYEES
SEC. 18006. A local educational agency, State, institution of higher education, or other entity that
receives funds under ‘‘Education Stabilization Fund’’, shall to the greatest extent practicable,
continue to pay its employees and contractors during the period of any disruptions or closures
related to coronavirus.
DEFINITIONS
SEC. 18007. Except as otherwise provided in sections 18001– 18006 of this title, as used in such
sections—
(1) the terms ‘‘elementary education’’ and ‘‘secondary education’’ have the meaning given such
terms under State law;
(2) the term ‘‘institution of higher education’’ has the meaning given such term in title I of the
Higher Education Act of 1965 (20 U.S.C. 1001 et seq.);
(3) the term ‘‘Secretary’’ means the Secretary of Education;
(4) the term ‘‘State’’ means each of the 50 States, the District of Columbia, and the Commonwealth
of Puerto Rico;
(5) the term ‘‘cost of attendance’’ has the meaning given such term in section 472 of the Higher
Education Act of 1965.
(6) the term ‘‘Non-public school’’ means a non-public elementary and secondary school that (A) is
accredited, licensed, or otherwise operates in accordance with State law; and
(B) was in existence prior to the date of the qualifying emergency for which grants are awarded
under this section;
(7) the term ‘‘public school’’ means a public elementary or secondary school; and
(8) any other term used that is defined in section 8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801) shall have the meaning given the term in such
section.
MAINTENANCE OF EFFORT
SEC. 18008. (a) A State’s application for funds to carry out sections 18002 or 18003 of this title
shall include assurances that the State will maintain support for elementary and secondary
education, and State support for higher education (which shall include State funding to institutions
of higher education and state need based financial aid, and shall 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 provided in the 3 fiscal years
preceding the date of enactment of this Act.
(b) The secretary may waive the requirement in subsection (a) for the purpose of relieving fiscal
burdens on States that have experienced a precipitous decline in financial resources.
9
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REPORTING ON USE OF FUNDS SEC. 15011.
(a) In this section—
(1) the terms ‘‘agency’’, ‘‘appropriate congressional committees’’, ‘‘Committee’’, ‘‘covered
funds’’, and ‘‘Coronavirus response’’ have the meanings given those terms in section 15010;
(2) the term ‘‘covered recipient’’ (A) means any entity that receives large covered funds; and (B)
includes any State, the District of Columbia, and any territory or possession of the United States;
and
(3) the term ‘‘large covered funds’’ means covered funds that amount to more than $150,000.
…
(b)(2) Not later than 10 days after the end of each calendar quarter, each covered recipient shall
submit to the agency and the Committee a report that contains—
(A) the total amount of large covered funds received from the agency;
(B) the amount of large covered funds received that were expended or obligated for each project or
activity;
(C) a detailed list of all projects or activities for which large covered funds were expended or
obligated, including—
(i) the name of the project or activity;
(ii) a description of the project or activity; and
(iii) the estimated number of jobs created or retained by the project or activity, where applicable;
and
(D) detailed information on any level of subcontracts or subgrants awarded by the covered recipient
or its subcontractors or subgrantees, to include the data elements required to comply with the
Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note) allowing
aggregate reporting on awards below $50,000 or to individuals, as prescribed by the Director of the
Office of Management and Budget.
(3) Not later than 30 days after the end of each calendar quarter, the Committee, in consultation
with the agency that made large covered funds available to any covered recipient shall make the
information in reports submitted under paragraph (2) publicly available by posting the information
on the website established under section 15010(g).
(4)(A) Each agency, in coordination with the Committee and the Director of the Office of
Management and Budget shall provide user-friendly means for covered recipients to meet
requirements of this subsection.
(B) Federal agencies may use existing mechanisms to ensure that information under this subsection
is reported accurately.
(c)(1) The Director of the Office of Management and Budget, in consultation with the Secretary of
the Treasury, the Administrator of the Small Business Administration, and the Chairperson of the
Council of Economic Advisors, shall submit to the appropriate congressional committees and
publicly release on the website established under section 15010(g) quarterly reports that detail the
impact of programs funded through large covered funds on employment, estimated economic
growth, and other key economic indicators, including information about impacted industries.
(2)(A) The first report submitted under paragraph (1) shall be submitted not later than 45 days after
the end of the first full quarter following the date of enactment of this Act.
(B) The last report required to be submitted under paragraph (1) shall apply to the quarter in which
the Committee terminates.
10
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 233 of 355
APPENDIX B: STATE ALLOCATION TABLE
Elementary and Secondary School Emergency Relief Fund
STATE
STATE
TOTAL
Minimum LEA
Distribution1
Maximum SEA
Reservation
Maximum for
SEA
Administration2
TOTAL
13,229,265,000
11,906,338,500
1,322,926,500
66,146,325
ALABAMA
216,947,540
NVRIOROITUS
ONISVQITRQ
NIMUQITPU
ALASKA
38,407,914
PQIRSTINOP
PIUQMITVN
NVOIMQM
ARIZONA
277,422,944
OQVISUMISRM
OTITQOIOVQ
NIPUTINNR
ARKANSAS
128,758,638
NNRIUUOITTQ
NOIUTRIUSQ
SQPITVP
CALIFORNIA
1,647,306,127
NIQUOIRTRIRNQ
NSQITPMISNP
UIOPSIRPN
COLORADO
120,993,782
NMUIUVQIQMQ
NOIMVVIPTU
SMQIVSV
CONNECTICUT
111,068,059
VVIVSNIORP
NNINMSIUMS
RRRIPQM
DELAWARE
43,492,753
PVINQPIQTU
QIPQVIOTR
ONTIQSQ
DISTRICT OF
COLUMBIA
42,006,354
PTIUMRITNV
QIOMMISPR
ONMIMPO
FLORIDA
770,247,851
SVPIOOPIMSS
TTIMOQITUR
PIURNIOPV
GEORGIA
457,169,852
QNNIQROIUST
QRITNSIVUR
OIOURIUQV
HAWAII
43,385,229
PVIMQSITMS
QIPPUIROP
ONSIVOS
IDAHO
47,854,695
QPIMSVIOOS
QITURIQTM
OPVIOTP
ILLINOIS
569,467,218
RNOIROMIQVS
RSIVQSITOO
OIUQTIPPS
INDIANA
214,472,770
NVPIMORIQVP
ONIQQTIOTT
NIMTOIPSQ
IOWA
71,625,561
SQIQSPIMMR
TINSOIRRS
PRUINOU
KANSAS
84,529,061
TSIMTSINRR
UIQROIVMS
QOOISQR
KENTUCKY
193,186,874
NTPIUSUINUT
NVIPNUISUT
VSRIVPQ
LOUISIANA
286,980,175
ORUIOUOINRU
OUISVUIMNU
NIQPQIVMN
MAINE
43,793,319
PVIQNPIVUT
QIPTVIPPO
ONUIVST
MARYLAND
207,834,058
NUTIMRMISRO
OMITUPIQMS
NIMPVINTM
MASSACHUSETTS
214,894,317
NVPIQMQIUUR
ONIQUVIQPO
NIMTQIQTO
MICHIGAN
389,796,984
PRMIUNTIOUS
PUIVTVISVU
NIVQUIVUR
MINNESOTA
140,137,253
NOSINOPIROU
NQIMNPITOR
TMMISUS
MISSISSIPPI
169,883,002
NROIUVQITMO
NSIVUUIPMM
UQVIQNR
MISSOURI
208,443,300
NUTIRVUIVTM
OMIUQQIPPM
NIMQOIONT
MONTANA
41,295,230
PTINSRITMT
QINOVIROP
OMSIQTS
NEBRASKA
SRIMURIMUR
RUIRTSIRTT
SIRMUIRMV
PORIQOR
NEVADA
117,185,045
NMRIQSSIRQN
NNITNUIRMR
RURIVOR
NEW HAMPSHIRE
37,641,372
PPIUTTIOPR
PITSQINPT
NUUIOMT
NEW JERSEY
310,371,213
OTVIPPQIMVO
PNIMPTINON
NIRRNIURS
NEW MEXICO
NMUIRTQITUS
VTITNTIPMT
NMIURTIQTV
RQOIUTQ
NEW YORK
1,037,045,603
VPPIPQNIMQP
NMPITMQIRSM
RINURIOOU
NORTH CAROLINA
396,311,607
PRSISUMIQQS
PVISPNINSN
NIVUNIRRU
NORTH DAKOTA
33,297,699
OVIVSTIVOV
PIPOVITTM
NSSIQUV
OHIO
489,205,200
QQMIOUQISUM
QUIVOMIROM
OIQQSIMOS
OKLAHOMA
160,950,476
NQQIURRIQOU
NSIMVRIMQU
UMQITRO
1 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
2 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
11
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STATE
STATE
TOTAL
Minimum LEA
Distribution3
Maximum SEA
Reservation
Maximum for
SEA
Administration4
OREGON
121,099,019
NMUIVUVINNT
NOINMVIVMO
SMRIQVR
PENNSYLVANIA
523,807,198
QTNIQOSIQTU
ROIPUMITOM
OISNVIMPS
RHODE ISLAND
46,350,444
QNITNRIQMM
QISPRIMQQ
OPNITRO
SOUTH CAROLINA
216,311,158
NVQISUMIMQO
ONISPNINNS
NIMUNIRRS
SOUTH DAKOTA
41,295,230
PTINSRITMT
QINOVIROP
OMSIQTS
TENNESSEE
259,891,154
OPPIVMOIMPV
ORIVUVINNR
NIOVVIQRS
TEXAS
1,285,886,064
NINRTIOVTIQRU
NOUIRUUISMS
SIQOVIQPM
UTAH
67,821,787
SNIMPVISMU
SITUOINTV
PPVINMV
VERMONT
31,148,360
OUIMPPIROQ
PINNQIUPS
NRRITQO
VIRGINIA
238,599,192
ONQITPVIOTP
OPIURVIVNV
NINVOIVVS
WASHINGTON
216,892,447
NVRIOMPIOMO
ONISUVIOQR
NIMUQIQSO
WEST VIRGINIA
86,640,471
TTIVTSIQOQ
UISSQIMQT
QPPIOMO
WISCONSIN
174,777,774
NRTIOVVIVVT
NTIQTTITTT
UTPIUUV
WYOMING
32,562,651
OVIPMSIPUS
PIORSIOSR
NSOIUNP
PUERTO RICO
349,113,105
PNQIOMNITVR
PQIVNNIPNN
NITQRIRSS
3 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
4 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
12
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EXHIBIT 10
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF MATTHEW STEM
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Declaration of Matthew Stem (3:20-cv-04478-SK)
DECLARATION OF MATTHEW STEM
I, Matthew Stem, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
1.
I am the Deputy Secretary for the Office of Elementary and Secondary Education
for the Pennsylvania Department of Education (“PDE”). I have served in this role since 2015.
Prior to joining PDE, I worked in school systems for more than 20 years, serving as a teacher,
principal and assistant superintendent. I have a Bachelor’s Degree in Elementary Education from
Millersville University and a Master’s Degree in Educational Administration from Temple
University.
2.
In my role as Deputy Secretary for the Office of Elementary and Secondary
Education, I am responsible for the management and oversight of programs related to Pre-K to 12
education for students in Pennsylvania.
3.
I submit this Declaration in support of the Commonwealth of Pennsylvania’s
litigation against Elisabeth D. DeVos, in her official capacity as Secretary of Education and the
United States Department of Education (the “Department”) regarding the recently issued Rule
entitled Providing Equitable Services to Students and Teachers in Non-public Schools, 85 Fed.
Reg. 39,479 (July 1, 2020) (the “Equitable Services Rule” or the “Rule”). I have compiled the
information in the statements set forth below through personal knowledge, through PDE
personnel who have assisted me in gathering this information from our institution, and on the
basis of documents that have been provided to and/or reviewed by me. I have also familiarized
myself with the Rule in order to understand its immediate impact on PDE and public schools in
Pennsylvania.
Public Education in Pennsylvania
4.
The Pennsylvania Constitution requires the General Assembly to “provide for the
maintenance and support of a thorough and efficient system of public education to serve the needs
of the Commonwealth.” Pa. Const. Art. III § 14.
5.
PDE is responsible for overseeing Pennsylvania’s public school districts, more
than 170 public charter schools, public cyber charter schools, public Career and Technical
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Declaration of Matthew Stem (3:20-cv-04478-SK)
Centers/Vocational Technical schools, public Intermediate Units, the education of youth in State
Juvenile Correctional Institutions, Head Starts and publicly funded preschools, as well as
institutions of higher education.
6.
Pennsylvania has 500 public school districts, ranging in size from approximately
200 students to more than 140,000 students. There are 2,865 schools in these 500 districts, which
educate more than 1.72 million students each year.
7.
Funding for Pennsylvania schools is provided by a mix of federal, state, and local
sources. PDE oversees the distribution of state funding to local school districts. The
Commonwealth provides more than $12 billion each year to Pennsylvania’s public school
districts.
8.
While PDE has broad oversight responsibility, primary authority for administering
public school districts in Pennsylvania is vested in local school boards, which consist of elected
or appointed directors who serve set terms. See 24 P.S. §3-301. These local school boards are
responsible for setting policies and regulations governing the schools in their districts.
Effects of the COVID-19 Pandemic on Education in Pennsylvania
9.
The COVID-19 pandemic has had an unprecedented impact on schools across the
country, including those in Pennsylvania.
10.
In March 2020, Governor Tom Wolf ordered schools across Pennsylvania closed
on an interim basis. On April 9, 2020, Secretary of Education Pedro A. Rivera ordered all schools
to remain closed for the remainder of the 2019-2020 school year.
11.
Pennsylvania ended the 2019-2020 fiscal year with $32.3 billion in General Fund
collections, $3.2 billion, or 9.1 percent, below estimate.
12.
Under the direction of Governor Tom Wolf, PDE has provided guidance for local
schools as they address whether and how to reopen this fall.
13.
On June 3, 2020, PDE issued a 13-page document entitled “Preliminary Guidance
for Phased Reopening of Pre-K to 12 Schools.”
14.
That guidance required each school district or other school entity to create a Health
and Safety Plan to “serve as the local guidelines for all school reopening activities.” These plans
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Declaration of Matthew Stem (3:20-cv-04478-SK)
“must be tailored to the unique needs of each school entity and should be created in consultation
with local health agencies, if possible.” Each school entity’s Health and Safety Plan must be
approved by its governing body.
15.
Reopening will not be an easy process for our schools. For many, reopening will
require renovations or reconfiguration of physical spaces in order to ensure appropriate social
distancing. Beyond steps to protect the physical health of students and staff, school entities must
also be prepared to address the impact that the pandemic and accompanying closures have had on
students and families.
CARES Act Funds Received by Pennsylvania For K-12 Education
16.
In order to receive the ESSER funds designated for Pennsylvania and as required
by the Department, PDE executed a Certification and Agreement form and submitted it to the
Department on May 4, 2020.1 A true and correct copy of the Certification and Agreement
completed by PDE and submitted to the Department is attached hereto as Exhibit A.
17.
Within this Certification and Agreement, PDE agreed to the following terms:
I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of
the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act,
31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted
and amended as regulations of the Department in 2 CFR part 3485; and 18
USC § 1001, as appropriate.
. . .
4. The SEA will ensure that LEAs receiving ESSER funds will provide
equitable services to students and teachers in non-public schools as
required under 18005 of Division B of the CARES Act.
. . .
5. The SEA will ensure that an LEA receiving ESSER funds will provide
equitable services to students and teachers in non-public schools located
within the LEA in the same manner as provided under section 1117 of the
1 U.S. Dep’t of Educ., Certification and Agreement for Funding under the Education
Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund (ESSER
Fund), CFDA Number 84.425D, April 24, 2020, available at
https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf.
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ESEA, as determined through timely and meaningful consultation with
representatives of non-public schools.
•
The SEA will ensure that a public agency will maintain control of funds
for the services and assistance provided to a non-public school under the
ESSER Fund.
•
The SEA will ensure that a public agency will have title to materials,
equipment, and property purchased with ESSER funds.
•
The SEA will ensure that services to a non-public school with ESSER
funds will be provided by a public agency directly, or through contract
with, another public or private entity.
Ex. A at pp. 1-2.
18.
At the time that PDE executed the Certification and Agreement form, the
Department had not yet published the Rule. It had, on April 30, 2020, issued a nonbinding
document entitled, “Providing Equitable Services to Students and Teachers under the Coronavirus
Aid, Relief, and Economic Security (CARES) Act Programs” (the “Guidance Document”).
19.
On May 7, 2020, Pennsylvania Secretary of Education Pedro A. Rivera wrote to
Assistant Secretary for Elementary and Secondary Education Frank T. Brogan expressing concern
regarding the Guidance Document. This letter is attached hereto as Exhibit B.
20.
That letter noted that the Guidance Document was “inconsistent with the CARES
statute; the fiscal year 2019 Title I-A administration that serves as the basis of CARES Act
allocations; and, crucially, our shared goal of ensuring that limited, one-time, emergency funding
reaches our most vulnerable students, wherever they attend school.”
21.
The Department distributed $523,807,198 from the ESSER Fund to PDE on May
5, 2020.
22.
PDE opened its application for LEAs to apply for and receive ESSER funds on
May 13, 2020. The process involves a streamlined application and prompt action by PDE to move
complete applications through the federally required approval process.
23.
To date, PDE has distributed $111,280,869 to 284 eligible LEAs within
Pennsylvania, which represents 42% of LEAs eligible to receive ESSER Funds.
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24.
Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), LEAs in Pennsylvania would reserve
$19,202,578 in ESSER funds to provide equitable services to private school students. However,
using the proportional share calculation set forth in the Department’s Guidance Document and in
Option #2 in the Rule, LEAs in Pennsylvania would reserve more than double this amount to
provide equitable services to private school students.
The Department’s Rule Significantly Harms PDE
25.
At a time when Pennsylvania faces a $3.2 billion hole in its education budget as a
result of the pandemic, and local revenues are estimated to fall by another $1 billion, PDE will be
required to find more than $20,000,000 to support emergency needs of public schools that the
CARES Act funds were supposed to fill.
26.
In addition, the SEA will be required to provide significant funding to Title I
schools that are not allowed to use the CARES Act funds to supplant their budgets, which have
been slashed due to the pandemic.
27.
This increase in funding for public schools will be required immediately. As
Pennsylvania remains in the throes of the pandemic, public schools remain desperate for funding
as they continue to transition to remote learning and preparing for next school year. The costs of
reacting to this pandemic are drastic for public schools and without the funds the CARES Act was
intended to provide, PDE must immediately assist the LEAs adjust to the new realities presented
by the pandemic.
28.
Beyond the additional funding that Pennsylvania will be required to expend in lieu
of the designated CARES Act funds, the Department’s Guidance Document and Rule have
imposed signification administrative burdens on PDE directly.
29.
Finally, the Department’s Guidance Document and Rule place PDE in legal
jeopardy. PDE was required to certify in its ESSER Fund application that the SEAs and the
LEAs will comply with the equitable service provision of the CARES Act (§ 18005) and “any
other applicable law or regulation.” (Ex. A at p. 1.) Because the Guidance Document and the
Rule require LEAs to calculate the proportional share for equitable services and determine
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eligibility of private school students for equitable services contrary to the proportional share
calculation and eligibility requirements in the CARES Act, PDE (and its LEAs) cannot satisfy
both the Rule and the CARES Act. Accordingly, the Department’s Rule forces PDE to violate
Section 18005 of the CARES Act, placing PDE in breach of the certification in the Certification
and Agreement and subjecting PDE “liability under the False Claims Act, . . . [and the] OMB
Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement).”
(Ex. A at p. 1.)
30.
As the LEAs in Pennsylvania need to use the ESSER funds as soon as possible to
assist with the numerous pandemic-related challenges, this legal jeopardy will impact PDE
immediately.
The Department’s Rule Significantly Harms Pennsylvania’s K-12 Students
31.
The Department’s Guidance and Rule will result in less funding being distributed
to public K-12 schools in Pennsylvania.
32.
If LEAs in Pennsylvania calculate the proportional share of CARES Act funds for
private school students under Option #1 in the Rule, non-Title I schools in LEAs receiving
CARES Act funds will receive no funds. In Pennsylvania, there are approximately 1140 non-
Title I schools in LEAs that are eligible to receive CARES Act funds that would not receive any
funding. Like all schools in Pennsylvania, these schools are equally impacted by the COVID-19
pandemic and would greatly benefit from the influx of CARES Act funds to assist them through
the pandemic. In addition, there are approximately 1,700 Title I schools in Pennsylvania that
would be prohibited from using CARES Act funds to respond to and prepare for the pandemic as
the schools cannot supplant State and local funding sources under the Rule. This would
significantly impact the Title I schools, as many are in desperate need of additional funding to
cope with the pandemic, and to assist students with online, remote learning tools that students
often cannot afford within these Title I schools.
33.
If LEAs in Pennsylvania calculate the proportional share of CARES Act funds for
private school students under Option #2 in the Rule, approximately $20,000,000 will be diverted from
less advantaged public school students to more advantaged private school students.
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a. This increase in support flowing from the most disadvantaged to more advantaged
students impacts districts of every type—urban, suburban, and rural.
b. Estimated impacts include: Philadelphia: 53%; Pittsburgh: 124%; Altoona: 605%;
Scranton: 797%; Northeast Bradford: 932%; Upper Darby: 1104%; Manheim
Township: 1617%; Bristol Borough: 2324%; Blue Ridge: 3873%; York Suburban:
4084%; and Rose Tree Media: 4634%.
34.
For every $3 diverted from the public schools (Title I or non-Title I schools), a
public-school student loses out on systems to access online learning while schools are closed due
to the pandemic.
35.
Regardless of how LEAs proportion the CARES Act funds in Pennsylvania, the
Rule requires that all private school students receive equitable services. In Pennsylvania, during
the 2019-2020 school year, approximately 26,202 private school students were eligible to receive
equitable services under Title I-A as they were at-risk students within a LEA receiving Title I-A
funds. As the Rule requires all private school students receiving equitable services, the
approximately 23,796 private school students who received equitable services under Title I-A last
year will receive fewer services as the CARES Act funds proportioned for equitable services will
be spread amongst all private school students.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this 16 day of July 2020
________________________________________
Matthew S. Stem
Deputy Secretary
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 244 of 355
EXHIBIT A
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 245 of 355
U.S. Department of Education
Certification and Agreement
for Funding under the
Education Stabilization Fund Program
Elementary and Secondary School Emergency Relief
Fund (ESSER Fund)
CFDA Number: 84.425D
OMB Number: 1810-0743
Expiration Date: 10/31/2020
Paperwork Burden Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless
such collection displays a valid OMB control number. The OMB control number for this information collection is 1810-
0743. The time required to complete this information collection is estimated to average 5 hours per response, including time
for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. The obligation to respond to this collection is required to obtain benefit
under the Coronavirus Aid, Relief, and Economic Security Act. If you have any comments concerning the accuracy of
the time estimate, suggestions for improving this individual collection, or if you have comments or concerns regarding
the status of your individual form, application or survey, please contact Christopher Tate, Office of Elementary and
Secondary Education, U.S. Department of Education, 400 Maryland Ave., S.W., Room 3E229, Washington, D.C. 20202
directly.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 246 of 355
ii
PROGRAM BACKGROUND INFORMATION
Purpose
Under the Elementary and Secondary School Emergency Relief Fund (ESSER Fund), the
Department awards grants to State educational agencies (SEAs) for the purpose of providing local
educational agencies (LEAs), including charter schools that are LEAs, with emergency relief funds
to address the impact that Novel Coronavirus Disease 2019 (COVID-19) has had, and continues to
have, on elementary and secondary schools across the nation. LEAs must provide equitable
services to students and teachers in non-public schools as required under the Coronavirus Aid,
Relief, and Economic Security Act (CARES Act).
Eligibility
SEAs in any of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
Timeline
The SEA will have one year, from the date of its ESSER award, to award funds. Any funds not
awarded by the SEA within one year of receiving its award will be returned to the Department to
be reallocated to other States consistent with the CARES Act.
Uses of Funds SEAs:
The SEA must use no less than 90 percent of its allocation to make subgrants to LEAs, including
charter schools that are LEAs, based on each LEA’s share of funds received under part A of title I
of the ESEA in fiscal year 2019. With the funds not subgranted to LEAs, the SEA may reserve up
to an amount equal to ½ of 1 percent of the total allocation for administrative costs, and the
remaining funds may be used for emergency needs as determined by the SEA to address issues
responding to COVID-19. These emergency needs may be addressed through the use of grants or
contracts.
LEAs:
LEAs may use funds for any purposes listed in section 18003(d) of the CARES Act. (See
Appendix A.)
Program Contact
For additional information, please contact Christopher Tate by telephone at (202) 453-6047 or by
email at ESSERF@ed.gov.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 247 of 355
iii
CERTIFICATION AND AGREEMENT INSTRUCTIONS
To receive an ESSER Fund allocation, SEAs must submit to the Department the following
information:
x A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
x Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
x Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
x Other assurances and certifications. (Part D of the Certification and Agreement)
For purposes of this document, the term “Certification and Agreement” is the application that an
SEA is required to file under section 18003(a) of Division B of the CARES Act.
Certification and Agreement Submission Information
An SEA must submit a Certification and Agreement to the Department no later than July 1, 2020.
Please submit your Certification and Agreement to the Department as follows:
Email an electronic version of the ESSER Fund Certification and Agreement in .PDF (Portable
Document Format) to ESSERF@ed.gov.
APPENDICES
Appendix A – Authorizing Statute
Appendix B – State Allocation Table
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ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF FUND
(ESSER FUND)
STATE EDUCATIONAL AGENCY
PART A: CERTIFICATION AND AGREEMENT COVER SHEET
State: Pennsylvania
CFDA Number: 84.425D
Legal Name: Pennsylvania Department of Education
DUNS Number: 795145705
Chief State School Officer: Pedro A. Rivera
Mailing Address:
Pennsylvania Department of Education
333 Market Street
10th Floor
Harrisburg, PA 17126-0333
To the best of my knowledge and belief, all the information and data in this agreement are true
and correct. I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of the CARES Act, Pub.
L. No. 116-136 (March 27, 2020), or any other applicable law or regulation may result in liability
under the False Claims Act, 31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on
Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted
and amended as regulations of the Department in 2 CFR part 3485; and 18 USC § 1001, as
appropriate.
Chief State School Officer: Pedro A. Rivera
Telephone: 717 783-9780
Signature of Chief State School Officer:
Date: May 4, 2020
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
States Contact for Elementary and Secondary School Emergency Relief Fund:
Susan McCrone
Adam Schott
Chief, Division of Federal Programs
Special Advisor to the Secretary
333 Market Street
333 Market Street
5th Floor
10th Floor
Harrisburg, PA 17126-0333
Harrisburg, PA 17126-0333
717 579-7168
717 439-0623
smccrone@pa.gov
adschott@pa.gov
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2
PART B: PROGRAMMATIC, FISCAL, AND REPORTING ASSURANCES
The Pennsylvania Department of Education and Secretary Pedro A. Rivera assure the following:
1. The SEA will allocate no less than 90 percent of the grant funds under this program to local
educational agencies (LEAs) (including charter schools that are LEAs) in the State. Under the
ESSER Fund, the SEA will award grants by formula to State educational agencies (SEAs) for
the purpose of providing LEAs, including charter schools that are LEAs, with emergency relief
funds to address the impact that the Novel Coronavirus Disease 2019 (COVID-19) has had, and
continues to have, on elementary and secondary schools across the Nation. This includes both
continuing to provide educational services, such as remote learning, while schools and
campuses are closed, and developing and implementing plans for the return to normal
operations. The SEA will allocate these funds to LEAs on the basis of their respective shares of
funds received under title I, part A of the Elementary and Secondary Education Act of 1965 in
fiscal year 2019.
2. The SEA will use the remaining funds (hereafter SEA reserve) for emergency needs as
determined by the SEA to address issues related to COVID-19, which may be addressed through
the use of grants or contracts. From an SEA’s reserve, the SEA may use not more than 1/2 of 1
percent of the SEA’s total grant for administrative costs.
3. The SEA will ensure that LEAs use ESSER funds for activities allowable under section
18003(d) of Division B of the CARES Act. (See Appendix A.)
The Department generally does not consider the following to be an allowable use of ESSER
funds, under any part of 18003: 1) subsidizing or offsetting executive salaries and benefits of
individuals who are not employees of the SEA or LEAs or 2) expenditures related to state or
local teacher or faculty unions or associations.
4. The SEA will ensure that LEAs receiving ESSER funds will provide equitable services to
students and teachers in non-public schools as required under 18005 of Division B of the
CARES Act.
5. The SEA will ensure that an LEA receiving ESSER funds will provide equitable services to
students and teachers in non-public schools located within the LEA in the same manner as
provided under section 1117 of the ESEA, as determined through timely and meaningful
consultation with representatives of non-public schools.
x The SEA will ensure that a public agency will maintain control of funds for the services
and assistance provided to a non-public school under the ESSER Fund.
x The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
x The SEA will ensure that services to a non-public school with ESSER funds will be
provided by a public agency directly, or through contract with, another public or private
entity.
6. The SEA will comply with the maintenance of effort provision in Section 18008(a) of Division
B of the CARES Act absent waiver by the Secretary pursuant to Section 18008(b) thereof.
7. The SEA and each LEA and any other entity that receives ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
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3
any disruptions or closures related to COVID-19 in compliance with Section 18006 of Division
B of the CARES Act. In addition, each entity that accepts funds will continue to pay employees
and contractors to the greatest extent practicable based on the unique financial circumstances of
the entity. CARES Act funds generally will not be used for bonuses, merit pay, or similar
expenditures, unless related to disruptions or closures resulting from COVID-19.
8. The SEA must assure that, when applicable, it will provide technical assistance to LEAs on the
use of ESSER funds for remote learning, which includes both distance education as defined in
section 103(7) of the HEA and distance learning as defined in ESEA section 8101(14), so that
students can continue learning during school closures.
9. The SEA will comply with all reporting requirements, including those in Section 15011(b)(2) of
Division B of the CARES Act, and submit required quarterly reports to the Secretary at such
time and in such manner and containing such information as the Secretary may subsequently
require. (See also 2 CFR 200.327-200.329). The Secretary may require additional reporting in
the future, which may include: the methodology LEAs will use to provide services or assistance
to students and staff in both public and non-public schools, the uses of funds by the LEAs or
other entities and demonstration of their compliance with Section 18003(d), such as any use of
funds addressing the digital divide, including securing access to home-based connectivity and
remote-use devices, related issues in supporting remote learning for all students, including
disadvantaged populations.
10. The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
x A budget for the SEA’s reserve that includes information about the up to 1/2 of 1 percent
of the SEA’s total grant for administrative costs and the uses of funds for emergency
needs to address issues related to COVID-19; and
x An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
11. The SEA will ensure that every recipient and subrecipient of ESSER funds will cooperate with
any examination of records with respect to such funds by making records available for
inspection, production, and examination, and authorized individuals available for interview and
examination, upon the request of (i) the Department and/or its Inspector General; or (ii) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
12. The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within 1 year of receiving such funds.
Chief State School Officer or Authorized Representative: Pedro A. Rivera
Signature:
Date: May 4, 2020
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4
PART C: USES OF ELEMENTARY AND SECONDARY
SCHOOL EMERGENCY RELIEF FUNDS
Section 18003 of Division B of the CARES Act provides in relevant part that grants awarded
under the Elementary and Secondary School Emergency Relief Fund be used to support the
ability of local educational agencies (LEAs) to continue to provide educational services to
their students. The Department requests the following:
1. Information that the SEA may request LEAs to include in their subgrant applications
to the SEA. For example, an SEA might propose to include the following in
developing its subgrant application:
x How the LEA will determine its most important educational needs as a result of
COVID- 19.
x The LEA’s proposed timeline for providing services and assistance to students
and staff in both public and non-public schools.
x The extent to which the LEA intends to use ESSER funds to promote remote learning.
x How the LEA intends to assess and address student learning gaps resulting
from the disruption in educational services.
The above considerations are in addition to the application information requirements
from sections 442 and 427 of the General Education Provisions Act (GEPA) (20 U.S.C.
§ 1232e and § 1228a).
Pennsylvania will finalize a streamlined CARES subgrant application in consultation with key
stakeholders, including its State Board of Education, statewide education organizations, the state’s
Title I Committee of Practitioners, and representatives of a purposeful sample of local education
agencies. The application will require LEAs to describe procedures for evaluating local COVID-
19 impacts in relation to education programming and delivery. Areas of emphasis may include:
x Documenting learning loss associated with extended school closure;
x Outlining the development of local continuity of education plans over the course of emergency
response efforts; and
x Detailing supports for vulnerable student populations and families.
LEAs will be asked to identify a core set of strategies that can guide local investment of CARES
funding, associated with short-range (i.e., remainder of the 2019-20 school year) and long-range
(2020-21 and 2021-22 school years) time horizons.
These strategies may entail the establishment, scale-up, refinement, or evaluation of remote
learning, as well as strategies for school-based teaching and learning responsive to conditions
related to the pandemic. LEAs will be asked to outline how limited, one-time CARES funding
may support these initiatives and how CARES funding might interact with other federal funding,
including enhanced Title IV flexibility, to ensure strategic and sustainable use of one-time funds.
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5
Subgrant applications will require LEAs to identify specific plans, measures, and longer-term
evaluative strategies concerning student learning gaps—as well as opportunity to learn factors—
stemming from COVID-19.
Finally, Pennsylvania will secure assurances that LEAs will comply with all applicable federal
requirements, including equitable services provisions, allowable uses of funds, reporting, fiscal
management, and recordkeeping requirements.
2. The extent to which the SEA intends to use any portion of its SEA reserve (up to 10
percent of its ESSER Fund award) to support:
x Technological capacity and access – including hardware and software,
connectivity, and instructional expertise – to support remote learning. If so,
please describe the strategies the SEA intends to use to serve disadvantaged
populations listed in Sec. 18003(d)(4) of the CARES Act; and
x remote learning by developing new informational and academic resources and
expanding awareness of, and access to, best practices and innovations in remote
learning and support for students, families, and educators.
Pennsylvania plans to utilize its SEA reserve (10 percent, inclusive of 0.5 percent for
SEA administration) to support initiatives, including remote learning, that can be
designed, implemented, and resourced with greater economy of scale at the state level
than would be possible or practical for LEAs to pursue individually.
It is important to note that Pennsylvania uses remote learning to describe a range of
modalities that connect educators, students, and high-quality instruction outside the
traditional school building. This may involve distance learning via large-scale or
nationally sourced platforms, locally constructed virtual systems, partnerships between
institutions of higher education and LEAs, public broadcast systems, enhanced educator
and family engagement, and other means. A broadened definition of remote learning
honors Pennsylvania’s strong tradition of local control, reflects the diversity of the state’s
education landscape, and acknowledges the need for a mix of appropriate delivery
methods in the context of long-term school closures.
More specifically, Pennsylvania’s reservation plans include:
x Expanding access to equitable statewide online blended, and offline learning
platforms, with particular attention to access for students with disabilities, English
learners, students in concentrated poverty, and other at-risk student populations;
x Strengthening support and accountability for full-time virtual schools while building
local capacity to design, deliver, and evaluate the efficacy of online and blended
learning;
x Supporting intensive teacher and school leader professional development on remote
delivery and pedagogy;
x Providing direct resources and technical assistance to close learning and non-
academic gaps stemming from extended school closures;
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6
x Providing direct resources and technical assistance on mental health and trauma-
informed practices, including those with demonstrated efficacy in distance learning
settings;
x Identifying and implementing practices that foster remote collaboration among core
content teachers and teachers of students with disabilities and English learners;
x Supporting partnerships between LEAs and IHEs to ensure an explicit focus on
remote learning in preservice student teaching experiences; and
x Recognizing the role of parents in supporting remote learning through focused family
engagement strategies.
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7
PART D: OTHER ASSURANCES AND CERTIFICATIONS
The Pennsylvania Department of Education and Secretary Pedro A. Rivera assure or certify
the following:
1. The SEA will comply with all applicable assurances in OMB Standard Forms 424B and D
(Assurances for Non-Construction and Construction Programs), including the assurances
relating to the legal authority to apply for assistance; access to records; conflict of interest; merit
systems; nondiscrimination; Hatch Act provisions; labor standards; flood hazards; historic
preservation; protection of human subjects; animal welfare; lead-based paint; Single Audit Act;
and the general agreement to comply with all applicable Federal laws, executive orders and
regulations.
2. With respect to the certification regarding lobbying in Department Form 80-0013, no Federal
appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with the making or
renewal of Federal grants under this program; the SEA will complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying,” when required (34 C.F.R. Part 82,
Appendix B); and the SEA will require the full certification, as set forth in 34 C.F.R. Part 82,
Appendix A, in the award documents for all subawards at all tiers.
3. Any LEA receiving funding under this program will have on file with the SEA a set of
assurances that meets the requirements of section 442 of the General Education Provisions Act
(GEPA) (20 U.S.C. 1232e).
4. To the extent applicable, an LEA will include in its local application a description of how the
LEA will comply with the requirements of section 427 of GEPA (20 U.S.C. 1228a). The
description must include information on the steps the LEA proposes to take to permit students,
teachers, and other program beneficiaries to overcome barriers (including barriers based on
gender, race, color, national origin, disability, and age) that impede equal access to, or
participation in, the program.
5. The SEA will comply with the Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (Uniform Guidance) requirements in Subpart D—Post
Federal Award Requirements (2 CFR §§200.300-345) and Subpart E—Cost Principles (2 CFR
§§200.400-475) to ensure that LEAs, including charter schools that are LEAs, are using ESSER
funds for purposes that are reasonable, necessary, and allocable under the CARES Act.
6. The SEA and other entities will comply with the provisions of all applicable acts, regulations
and assurances; the following provisions of Education Department General Administrative
Regulations (EDGAR) 34 CFR parts 76, 77, 81, 82, 84, 97, 98, and 99; the OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part
180, as adopted and amended as regulations of the Department in 2 CFR part 3485; and the
Uniform Guidance in 2 CFR part 200, as adopted and amended as regulations of the Department
in 2 CFR part 3474.
Chief State School Officer or Authorized Representative: Pedro A. Rivera
Signature:
Date: May 4, 2020
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8
Appendix A: Relevant Excerpts from Title VIII of Division B of the CARES
Act, the Emergency Appropriations for Coronavirus Health Response and
Agency Operations
DEPARTMENT OF EDUCATION
EDUCATION STABILIZATION FUND
For an additional amount for ‘‘Education Stabilization Fund’’, $30,750,000,000, to remain available
through September 30, 2021, to prevent, prepare for, and respond to coronavirus, domestically or
internationally: Provided, That such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency
Deficit Control Act of 1985.
GENERAL PROVISIONS
EDUCATION STABILIZATION FUND
SEC. 18001. (a) ALLOCATIONS.—From the amount made available under this heading in this Act
to carry out the Education Stabilization Fund, the Secretary shall first allocate—
(1) not more than 1/2 of 1 percent to the outlying areas on the basis of their respective needs, as
determined by the Secretary, in consultation with the Secretary of the Interior;
(2) one-half of 1 percent for the Secretary of Interior, in consultation with the Secretary of
Education, for programs operated or funded by the Bureau of Indian Education; and
(3) 1 percent for grants to States with the highest coronavirus burden to support activities under this
heading in this Act, for which the Secretary shall issue a notice inviting applications not later than
30 days of enactment of this Act and approve or deny applications not later than 30 days after
receipt.
(b) RESERVATIONS.—After carrying out subsection (a), the Secretary shall reserve the remaining
funds made available as follows:
(1) 9.8 percent to carry out section 18002 of this title.
(2) 43.9 percent to carry out section 18003 of this title.
(3) 46.3 percent to carry out section 18004 of this title.
ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF FUND
SEC. 18003. (a) GRANTS.—From funds reserved under section 18001(b)(2) of this title, the
Secretary shall make elementary and secondary school emergency relief grants to each State
educational agency with an approved application. The Secretary shall issue a notice inviting
applications not later than 30 days of enactment of this Act and approve or deny applications not
later than 30 days after receipt.
(b) ALLOCATIONS TO STATES.—The amount of each grant under subsection (a) shall be
allocated by the Secretary to each State in the same proportion as each State received under part A
of title I of the ESEA of 1965 in the most recent fiscal year.
(c) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—Each State shall allocate not less
than 90 percent of the grant funds awarded to the State under this section as subgrants to local
educational agencies (including charter schools that are local educational agencies) in the State in
proportion to the amount of funds such local educational agencies and charter schools that are local
educational agencies received under part A of title I of the ESEA of 1965
in the most recent fiscal year.
(d) USES OF FUNDS.—A local educational agency that receives funds under this title may use the
funds for any of the following:
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9
(1) Any activity authorized by the ESEA of 1965, including the Native Hawaiian Education Act and
the Alaska Native Educational Equity, Support, and Assistance Act (20 U.S.C. 6301 et seq.), the
Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) (‘‘IDEA’’), the Adult
Education and Family Literacy Act (20 U.S.C. 1400 et seq.), the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) (‘‘the Perkins Act’’), or subtitle B of title
VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.).
(2) Coordination of preparedness and response efforts of local educational agencies with State,
local, Tribal, and territorial public health departments, and other relevant agencies,
to improve coordinated responses among such entities to prevent, prepare for, and respond to
coronavirus.
(3) Providing principals and others school leaders with the resources necessary to address the needs
of their individual schools.
(4) Activities to address the unique needs of low-income children or students, children with
disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and
foster care youth, including how outreach and service delivery will meet the needs of each
population.
(5) Developing and implementing procedures and systems to improve the preparedness and
response efforts of local educational agencies.
(6) Training and professional development for staff of the local educational agency on sanitation
and minimizing the spread of infectious diseases.
(7) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including
buildings operated by such agency.
(8) Planning for and coordinating during long-term closures, including for how to provide meals to
eligible students, how to provide technology for online learning to all students,
how to provide guidance for carrying out requirements under the Individuals with Disabilities
Education Act (20 U.S.C. 1401 et seq.) and how to ensure other educational services can continue
to be provided consistent with all Federal, State, and local requirements.
(9) Purchasing educational technology (including hardware, software, and connectivity) for students
who are served by the local educational agency that aids in regular and substantive
educational interaction between students and their classroom instructors, including low-income
students and students with disabilities, which may include assistive technology
or adaptive equipment.
(10) Providing mental health services and supports.
(11) Planning and implementing activities related to summer learning and supplemental afterschool
programs, including providing classroom instruction or online learning
during the summer months and addressing the needs of low-income students, students with
disabilities, English learners, migrant students, students experiencing homelessness, and
children in foster care.
(12) Other activities that are necessary to maintain the operation of and continuity of services in
local educational agencies and continuing to employ existing staff of the local educational agency.
(e) STATE FUNDING.—With funds not otherwise allocated under subsection (c), a State may
reserve not more than 1/2 of 1 percent for administrative costs and the remainder for emergency
needs as determined by the state educational agency to address issues responding to coronavirus,
which may be addressed through the use of grants or contracts.
(f) REALLOCATION.—A State shall return to the Secretary any
funds received under this section that the State does not award within 1 year of receiving such funds
and the Secretary shall reallocate such funds to the remaining States in accordance with
subsection (b).
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ASSISTANCE TO NON-PUBLIC SCHOOLS
SEC. 18005. (a) IN GENERAL.—A local educational agency receiving funds under sections 18002
or 18003 of this title shall provide equitable services in the same manner as provided under section
1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in
consultation with representatives of non-public schools.
(b) PUBLIC CONTROL OF FUNDS.—The control of funds for the services and assistance
provided to a non-public school under subsection (a), and title to materials, equipment, and property
purchased with such funds, shall be in a public agency, and a public agency shall administer such
funds, materials, equipment, and property and shall provide such services (or may contract for the
provision of such services with a public or private entity).
CONTINUED PAYMENT TO EMPLOYEES
SEC. 18006. A local educational agency, State, institution of higher education, or other entity that
receives funds under ‘‘Education Stabilization Fund’’, shall to the greatest extent practicable,
continue to pay its employees and contractors during the period of any disruptions or closures
related to coronavirus.
DEFINITIONS
SEC. 18007. Except as otherwise provided in sections 18001– 18006 of this title, as used in such
sections—
(1) the terms ‘‘elementary education’’ and ‘‘secondary education’’ have the meaning given such
terms under State law;
(2) the term ‘‘institution of higher education’’ has the meaning given such term in title I of the
Higher Education Act of 1965 (20 U.S.C. 1001 et seq.);
(3) the term ‘‘Secretary’’ means the Secretary of Education;
(4) the term ‘‘State’’ means each of the 50 States, the District of Columbia, and the Commonwealth
of Puerto Rico;
(5) the term ‘‘cost of attendance’’ has the meaning given such term in section 472 of the Higher
Education Act of 1965.
(6) the term ‘‘Non-public school’’ means a non-public elementary and secondary school that (A) is
accredited, licensed, or otherwise operates in accordance with State law; and
(B) was in existence prior to the date of the qualifying emergency for which grants are awarded
under this section;
(7) the term ‘‘public school’’ means a public elementary or secondary school; and
(8) any other term used that is defined in section 8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801) shall have the meaning given the term in such
section.
MAINTENANCE OF EFFORT
SEC. 18008. (a) A State’s application for funds to carry out sections 18002 or 18003 of this title
shall include assurances that the State will maintain support for elementary and secondary
education, and State support for higher education (which shall include State funding to institutions
of higher education and state need based financial aid, and shall 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 provided in the 3 fiscal years
preceding the date of enactment of this Act.
(b) The secretary may waive the requirement in subsection (a) for the purpose of relieving fiscal
burdens on States that have experienced a precipitous decline in financial resources.
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11
REPORTING ON USE OF FUNDS SEC. 15011.
(a) In this section—
(1) the terms ‘‘agency’’, ‘‘appropriate congressional committees’’, ‘‘Committee’’, ‘‘covered
funds’’, and ‘‘Coronavirus response’’ have the meanings given those terms in section 15010;
(2) the term ‘‘covered recipient’’ (A) means any entity that receives large covered funds; and (B)
includes any State, the District of Columbia, and any territory or possession of the United States;
and
(3) the term ‘‘large covered funds’’ means covered funds that amount to more than $150,000.
…
(b)(2) Not later than 10 days after the end of each calendar quarter, each covered recipient shall
submit to the agency and the Committee a report that contains—
(A) the total amount of large covered funds received from the agency;
(B) the amount of large covered funds received that were expended or obligated for each project or
activity;
(C) a detailed list of all projects or activities for which large covered funds were expended or
obligated, including—
(i) the name of the project or activity;
(ii) a description of the project or activity; and
(iii) the estimated number of jobs created or retained by the project or activity, where applicable;
and
(D) detailed information on any level of subcontracts or subgrants awarded by the covered recipient
or its subcontractors or subgrantees, to include the data elements required to comply with the
Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note) allowing
aggregate reporting on awards below $50,000 or to individuals, as prescribed by the Director of the
Office of Management and Budget.
(3) Not later than 30 days after the end of each calendar quarter, the Committee, in consultation
with the agency that made large covered funds available to any covered recipient shall make the
information in reports submitted under paragraph (2) publicly available by posting the information
on the website established under section 15010(g).
(4)(A) Each agency, in coordination with the Committee and the Director of the Office of
Management and Budget shall provide user-friendly means for covered recipients to meet
requirements of this subsection.
(B) Federal agencies may use existing mechanisms to ensure that information under this subsection
is reported accurately.
(c)(1) The Director of the Office of Management and Budget, in consultation with the Secretary of
the Treasury, the Administrator of the Small Business Administration, and the Chairperson of the
Council of Economic Advisors, shall submit to the appropriate congressional committees and
publicly release on the website established under section 15010(g) quarterly reports that detail the
impact of programs funded through large covered funds on employment, estimated economic
growth, and other key economic indicators, including information about impacted industries.
(2)(A) The first report submitted under paragraph (1) shall be submitted not later than 45 days after
the end of the first full quarter following the date of enactment of this Act.
(B) The last report required to be submitted under paragraph (1) shall apply to the quarter in which
the Committee terminates.
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APPENDIX B: STATE ALLOCATION TABLE
Elementary and Secondary School Emergency Relief Fund
STATE
STATE
TOTAL
Minimum LEA
Distribution1
Maximum SEA
Reservation
Maximum for
SEA
Administration2
TOTAL
13,229,265,000
11,906,338,500
1,322,926,500
66,146,325
ALABAMA
216,947,540
195,252,786
21,694,754
1,084,738
ALASKA
38,407,914
34,567,123
3,840,791
192,040
ARIZONA
277,422,944
249,680,650
27,742,294
1,387,115
ARKANSAS
128,758,638
115,882,774
12,875,864
643,793
CALIFORNIA
1,647,306,127
1,482,575,514
164,730,613
8,236,531
COLORADO
120,993,782
108,894,404
12,099,378
604,969
CONNECTICUT
111,068,059
99,961,253
11,106,806
555,340
DELAWARE
43,492,753
39,143,478
4,349,275
217,464
DISTRICT OF
COLUMBIA
42,006,354
37,805,719
4,200,635
ONMIMPO
FLORIDA
770,247,851
693,223,066
77,024,785
3,851,239
GEORGIA
457,169,852
411,452,867
45,716,985
2,285,849
HAWAII
43,385,229
39,046,706
4,338,523
216,926
IDAHO
47,854,695
43,069,226
4,785,470
239,273
ILLINOIS
569,467,218
512,520,496
56,946,722
2,847,336
INDIANA
214,472,770
193,025,493
21,447,277
1,072,364
IOWA
71,625,561
64,463,005
7,162,556
358,128
KANSAS
84,529,061
76,076,155
8,452,906
422,645
KENTUCKY
193,186,874
173,868,187
19,318,687
965,934
LOUISIANA
286,980,175
258,282,158
28,698,018
1,434,901
MAINE
43,793,319
39,413,987
4,379,332
218,967
MARYLAND
207,834,058
187,050,652
20,783,406
1,039,170
MASSACHUSETTS
214,894,317
193,404,885
21,489,432
1,074,472
MICHIGAN
389,796,984
350,817,286
38,979,698
1,948,985
MINNESOTA
140,137,253
NOSINOPIROU
14,013,725
700,686
MISSISSIPPI
169,883,002
152,894,702
16,988,300
849,415
MISSOURI
208,443,300
187,598,970
20,844,330
1,042,217
MONTANA
41,295,230
37,165,707
4,129,523
206,476
NEBRASKA
SRIMURIMUR
58,576,577
6,508,509
325,425
NEVADA
117,185,045
105,466,541
11,718,505
585,925
NEW HAMPSHIRE
37,641,372
33,877,235
3,764,137
188,207
NEW JERSEY
310,371,213
279,334,092
31,037,121
1,551,856
NEW MEXICO
NMUIRTQITUS
97,717,307
10,857,479
542,874
NEW YORK
1,037,045,603
933,341,043
103,704,560
5,185,228
NORTH CAROLINA
396,311,607
356,680,446
39,631,161
1,981,558
NORTH DAKOTA
33,297,699
29,967,929
3,329,770
166,489
OHIO
489,205,200
440,284,680
48,920,520
2,446,026
OKLAHOMA
160,950,476
144,855,428
16,095,048
804,752
1 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
2 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 260 of 355
3 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
4 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
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STATE
STATE
TOTAL
Minimum LEA
Distribution3
Maximum SEA
Reservation
Maximum for
SEA
Administration4
OREGON
121,099,019
108,989,117
12,109,902
605,495
PENNSYLVANIA
523,807,198
471,426,478
52,380,720
2,619,036
RHODE ISLAND
46,350,444
41,715,400
4,635,044
OPNITRO
SOUTH CAROLINA
216,311,158
194,680,042
21,631,116
1,081,556
SOUTH DAKOTA
41,295,230
37,165,707
4,129,523
206,476
TENNESSEE
259,891,154
233,902,039
25,989,115
1,299,456
TEXAS
1,285,886,064
1,157,297,458
128,588,606
6,429,430
UTAH
67,821,787
61,039,608
6,782,179
339,109
VERMONT
31,148,360
28,033,524
3,114,836
155,742
VIRGINIA
238,599,192
214,739,273
23,859,919
1,192,996
WASHINGTON
216,892,447
195,203,202
21,689,245
1,084,462
WEST VIRGINIA
86,640,471
77,976,424
8,664,047
433,202
WISCONSIN
174,777,774
157,299,997
17,477,777
873,889
WYOMING
32,562,651
29,306,386
3,256,265
162,813
PUERTO RICO
349,113,105
314,201,795
34,911,311
1,745,566
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EXHIBIT B
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May 7, 2020
The Honorable Frank T. Brogan
Assistant Secretary for Elementary and Secondary Education
Office of Elementary and Secondary Education
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202
Dear Assistant Secretary Brogan:
Thank you for your leadership in ensuring timely, clear communication from the U.S.
Department of Education (USDE) as states respond to the immediate effects of the COVID-
19 pandemic, implement state-level waivers granted by your agency, and work to administer
emergency funding under the Coronavirus Aid, Relief, and Economic Security (CARES)
Act.
As Pennsylvania’s CARES planning unfolds, I am seeking clarification concerning USDE’s
“Providing Equitable Services to Students and Teachers under the Coronavirus Aid, Relief,
and Economic Security (CARES) Act Programs” document issued April 30, 2020. While I
understand that this guidance does not have the force and effect of law, the document has
created confusion as Pennsylvania works to ensure timely allocation of CARES Act funds.
Under the CARES Act statute and USDE’s longstanding interpretation of equitable
participation, local education agency (LEA) reservations for services to nonpublic schools
are based on the number of low-income children in each participating non-public school in
the LEA. USDE’s guidance, suggesting that LEAs should instead base these calculations on
the total number of nonpublic students, is inconsistent with the CARES statute; the fiscal
year 2019 Title I-A administration that serves as the basis of CARES Act allocations; and,
crucially, our shared goal of ensuring that limited, one-time, emergency funding reaches our
most vulnerable students, wherever they attend school.
Initial analysis by the Pennsylvania Department of Education over the past 24 hours, using
data derived from approximately 45 percent of the commonwealth’s school districts,
indicates that USDE’s April 30 guidance would roughly double Equitable Services
reservations, compared with the statutorily defined calculation. These sharply increased
reservations would impact districts of every type—large urban, small urban, suburban, and
rural; please see below for a sampling of these impacts.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 263 of 355
School districts
Increase in support flowing from most
disadvantaged to more advantaged
students
Large Urban
Philadelphia
53%
Pittsburgh
124%
Small Urban
Altoona
605%
Erie City
104%
Greater Johnstown
110%
Scranton
797%
Williamsport Area
564%
York City
354%
Suburban
Bristol Borough
2324%
Manheim Township
1617%
Rose Tree Media
4634%
Upper Darby
1104%
York Suburban
4084%
Rural
Blue Ridge
3873%
Clarion Area
735%
Mifflin County
335%
Northeast Bradford
932%
Warren County
248%
These outcomes, observed in districts and communities of every type, are clearly inequitable.
Accordingly, I urge USDE to clarify the April 30 guidance, outline data elements and procedures
for calculating equitable services consistent with the CARES Act, and encourage LEAs to use
the percentage of FY 2019 Title I funds set aside for equitable services and apply that percentage
to ESSER allocations and any GEER funds. This approach will ensure that critical CARES
support is provided in a consistent, transparent, and equitable manner.
Sincerely,
Pedro A. Rivera
Secretary of Education
cc: Council of Chief State School Officers
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EXHIBIT 11
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF BENJAMIN R.
JONES
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EXHIBIT 12
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF DR. JANICE K.
JACKSON
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EXHIBIT A
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EXHIBIT 13
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF ERIC S. GORDON
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Declaration of Eric S. Gordon (3:20-cv-04478-SK)
DECLARATION OF ERIC S. GORDON
I, Eric S. Gordon, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
1.
I am the Chief Executive Officer of the Cleveland Municipal School District (CMSD)
located in Cleveland, Ohio. CMSD is the school district operated and maintained by the Cleveland
Municipal School District Board of Education. My educational background includes a Bachelor’s of
Science in Secondary Mathematics and a Master’s Degree in Education Administration and
Supervision, both from Bowling Green State University. I have been employed as CEO since June
2011. In my role as CEO, I have led development of the Cleveland Plan, a collaborative process that
has transformed public education in the City of Cleveland. I have also been active nationally in the
implementation of the Common Core State Standards curriculum and in the implementation of Social
and Emotional Learning Standards for children.
2.
As CEO, I am responsible for overseeing all aspects of District operations,
including curriculum, employment, facilities and budgeting.
3.
I submit this Declaration in support of CMSD’s litigation against Elisabeth D.
DeVos, in her official capacity as Secretary of Education, and the United States Department of
Education (the “Department”) regarding the recently issued Rule entitled Providing Equitable
Services to Students and Teachers in Non-public Schools, 85 Fed. Reg. 39,479 (July 1, 2020) (the
“Equitable Services Rule” or the “Rule”). I have compiled the information in the statements set
forth below through personal knowledge, through CMSD personnel who have assisted me in
gathering this information from our institution, and on the basis of documents that have been
provided to and/or reviewed by me. I have also familiarized myself with the Rule in order to
understand its immediate impact on CMSD and public schools in Ohio.
Background about CMSD’s Work in Education and State’s Education Programs
4.
CMSD is the second largest school district in Ohio. For many years, CMSD has
faced a variety of challenges relating to its operations, finances, academics, and enrollment,
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Declaration of Eric S. Gordon (3:20-cv-04478-SK)
among other things. While other Ohio school districts may face similar challenges, the
persistence of the problems at CMSD is exceptional and unique. Accordingly, over the past 15
years, CMSD has engaged in a comprehensive effort to confront these and other systemic
challenges and improve the quality of educational opportunities available to all of our students.
In 2006 and 2007, the District adopted and began implementing a Portfolio School Strategy for
testing new models of education in a small number of schools to demonstrate that high quality
schools in Cleveland could attract and retain students. Among other things, these test schools
were provided increased autonomy in exchange for local accountability. In 2010, the District
adopted and began implementing its Academic Transformation Plan, a comprehensive approach
to central office redesign and school-by-school improvement. Increased autonomy and
accountability for individual schools was likewise a focus of the Academic Transformation Plan.
5.
The barriers to transformative change remained substantial, and could not be
surmounted by the District acting on its own. Many were a function of statutory or decisional
law; others collective bargaining agreements; and others longstanding practices and customs. I
therefore began working with others on the development of a statutory plan to update, modernize,
streamline and create flexibility within the statutory law applicable to CMSD. Among other
things, our work focused on identifying outdated, inefficient and burdensome practices that
continued to stand as a barrier to change. We then brought in and worked with the various
stakeholders to create, and achieve consensus with respect to, more efficient and up-to date
alternatives specifically tailored to meet CMSD’s unique needs. These efforts ultimately led to
the drafting and enactment of The Cleveland Plan for Transforming Schools (the “Cleveland
Plan”).
6.
In 2013, the District was faced with the prospect of being taken over by the State
because of low student achievement. Following the passage of the Cleveland Plan, CMSD
requested a waiver of the establishment of an academic distress commission, which would have
restructured the District and put all District operations under State control. The Ohio Department
of Education (“ODE”) granted CMSD’s request for a waiver based on the Cleveland Plan, stating
that because the Cleveland Plan was a coordinated effort to improve student achievement, the
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appointment of an academic distress commission would be duplicative and could interfere with
the Cleveland Plan.
7.
Ohio school districts are funded primarily through local property taxes and state
support. In Fiscal Year 2020, CMSD budgeted for $425.7 million in local support, $541.2 million in
state support, and $113.2 million in federal support. CMSD did not realize these full revenues due to
the COVID-19 pandemic.
8.
CMSD comprises 103 public schools and serves approximately 37,700 K-12
students. All of CMSD’s students are considered economically disadvantaged.
9.
All of CMSD’s 103 schools receive Title I funding.
10.
In addition, 35 private schools within Cleveland’s city limits qualify for Title I
equitable services funds, and 31 participate. Fifty-one private schools outside the city’s limits
qualify through CMSD, and 23 of those participate.
Effects of the COVID-19 Pandemic on Education in Ohio
11.
The COVID-19 pandemic has drastically impacted K-12 education in Ohio.
12.
The largest category of the CMSD’s funding is Foundation Funding, which CMSD
receives from the State of Ohio. Faced with deep budgetary cuts because of the economic impact
of the COVID-19 pandemic, Ohio reduced CMSD’s Foundation Funding in Fiscal Year 2020 by
more than $5.6 million. CMSD will experience similar cuts in Fiscal Year 2021 and also
anticipates a drop in local property tax collections.
13.
COVID-19 also had substantial non-economic impacts on school districts in Ohio.
The Governor ordered all schools to close effective March 17, and most districts transitioned to
online learning. Given CMSD’s student population, CMSD had to take additional steps and incur
additional expenses to ensure all students had access to the technology necessary to participate in
remote learning. CMSD also had to devote substantial resources to converting its free breakfast
and lunch program to a takeout/delivery model, as 100 percent of CMSD students qualify for free
or reduced meals at school.
CARES Act Funds Received by CMSD for K-12 Education
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
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14.
In order to receive the ESSER funds designated for Ohio and as required by the
Department, ODE executed a Certification and Agreement form and submitted it to the
Department on May 5, 2020.1 A true and correct copy of the Certification and Agreement
completed by ODE and submitted to the Department is attached hereto as Exhibit A.
15.
Within this Certification and Agreement, ODE agreed to the following terms:
I acknowledge and agree that the failure to comply with all Assurances and
Certifications in this Agreement, all relevant provisions and requirements of
the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act,
31 U.S.C. § 3729, et seq.; OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted
and amended as regulations of the Department in 2 CFR part 3485; and 18
USC § 1001, as appropriate.
. . .
4. LEAs receiving ESSER funds will provide equitable services to students
and teachers in non-public schools as required under 18005 of Division B
of the CARES Act.
. . .
5. LEA receiving ESSER funds will provide equitable services to students
and teachers in non-public schools located within the LEA in the same
manner as provided under section 1117 of the ESEA, as determined
through timely and meaningful consultation with representatives of non-
public schools.
[Ex. A at pp. 1-2.]
16.
At the time that ODE executed the Certification and Agreement form, the
Department had not yet published its Guidance Document or the Rule. Accordingly, ODE and
CMSD were unaware that the Department would subsequently issue rules to change the required
proportional share calculation for equitable services required under the CARES Act and the
private school students eligible to receive equitable services under the CARES Act.
17.
ODE distributed $31.2 million from the ESSER Fund received from the
Department to CMSD on May 26, 2020.
1 U.S. Dep’t of Educ., Certification and Agreement for Funding under the Education
Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund (ESSER
Fund), CFDA Number 84.425D, April 24, 2020, available at
https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf.
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18.
Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), CMSD would reserve $26.9 million in
ESSER funds to provide equitable services to private school students.
19.
However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, CMSD would reserve $26.1 million in ESSER
funds to provide equitable services to private school students. Thus, under the Department’s
preferred proportional share calculation, private school students in Cleveland would have access
to an additional $822,045, and public schools would lose this same amount of funds.
B. Governor’s Emergency Education Relief (GEER) Funds
20.
Ohio received $104.9 million from the GEER Fund.
21.
The Ohio Governor’s Office is responsible for distributing the GEER funds,
working in collaboration with ODE.
22.
CMSD has not yet received any GEER funding, nor is it clear if will receive GEER
funding.
The Department’s Rule Significantly Harms CMSD
23.
CMSD is unlikely to be able to backfill any of the dollars diverted from public
schools as a result of the Department’s Guidance Document and Rule. At a time when Ohio faces
a $300 million hole in its education budget as a result of the pandemic, CMSD will see further
cuts rather than relief that the CARES Act funds were supposed to bring.
24.
As Ohio remains in the throes of the pandemic, public schools remain desperate
for funding as they continue to transition to remote learning and preparing for next school year.
Policies and procedures must be developed for remote learning; teachers must be trained to use
remote learning techniques; school buildings must be thoroughly sanitized; and students and
families must be educated on their learning options. The costs of reacting to this pandemic are
drastic for public schools and without the funds the CARES Act was intended to provide, CMSD
is put at a disadvantage in adjusting to the new realities presented by the pandemic.
25.
The State of Ohio mandated that each district seek out the economically
disadvantaged numbers from private schools outside the city limits, along with all non-taxed/non-
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Declaration of Eric S. Gordon (3:20-cv-04478-SK)
chartered schools within the city limits and document those numbers in order to calculate
equitable services allocations. CMSD then had to calculate and create separate equitable services
scenarios. This slowed the process for the public CARES funds to be allocated because CMSD
had to determine the proper non-public set-aside first.
26.
Finally, the Department’s Guidance Document and Rule place CMSD in legal
jeopardy. Ohio was required to certify in its ESSER Fund application that ODE, CMSD and
other schools in the state will comply with the equitable service provision of the CARES Act (§
18005) and “any other applicable law or regulation.” (Ex. A at p. 1.) Because the Guidance
Document and the Rule require CMSD to calculate the proportional share for equitable services
and determine eligibility of private school students for equitable services contrary to the
proportional share calculation and eligibility requirements in the CARES Act, CMSD cannot
satisfy both the Rule and the CARES Act. Accordingly, the Department’s Rule forces CMSD to
violate Section 18005 of the CARES Act, placing CMSD in breach of the certification in the
Certification and Agreement and subjecting ODE and CMSD to “liability under the False Claims
Act, . . . [and the] OMB Guidelines to Agencies on Governmentwide Debarment and Suspension
(Nonprocurement).” (Ex. A at p. 1.).
27.
As CMSD needs to use the ESSER funds as soon as possible to assist with the
numerous pandemic-related challenges, this legal jeopardy will impact CMSD immediately.
The Department’s Rule Significantly Harms CMSD’s K-12 Students
28.
There remains confusion at the state level regarding CARES funding, which
makes it difficult for CMSD to be confident in allocating its resources. CMSD was originally
told the funds would follow Title I-A guidance (i.e. the economically disadvantaged count). Then
CMSD was told the funds were Title I-A, but that CMSD must use the Title II-A calculation (i.e.
full ADM) for equitable service allocations, which provided a much larger set-aside to the non-
public schools. Then, CMSD was told to calculate the non-public allocation both ways and begin
spending using the economically disadvantaged count until a final decision is made by USDOE.
While CMSD may now spend the funds, it does so at the risk of penalty from USDOE.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 318 of 355
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29.
The Department’s Guidance and Rule will result in less funding being distributed
to public K-12 schools in Cleveland.
30.
If CMSD calculates the proportional share of CARES Act funds for private school
students under Option #1 in the Rule, CMSD’s schools would be prohibited from using CARES
Act funds to respond to and prepare for the pandemic as the schools cannot supplant State and
local funding sources under the Rule. This would significantly impact the Title I schools as many
are in desperate need of additional funding to cope with the pandemic, and to assist students with
online, remote learning tools that students often cannot afford within these Title I schools.
31.
If CMSD calculates the proportional share of CARES Act funds for private school
students under Option #2 in the Rule, based on currently available information an additional
$822,045 will be diverted from public schools to private school students, which represents a 3.1
percent increase out of CMSD’s total CARES Act funding for education.
32.
For every $580 diverted from the public schools (Title I or non-Title I schools), a
public-school student loses out on a needed internet-connected device that could allow the student
to access online learning while schools are closed due to the pandemic.
33.
For every $100,000 diverted from the public schools (Title I or non-Title I
schools), a public-school teacher in Cleveland may lose their position and be unable to provide
students with access to learning during the pandemic.
34.
Regardless of how CMSD proportions the CARES Act funds, the Rule requires
that all private school students receive equitable services. In Cleveland, during the 2019-2020
school year, approximately 5,000 private school students were eligible to receive equitable
services under Title I-A as they were at-risk students within an LEA receiving Title I-A funds.
As the Rule requires all private school students receiving equitable services, the approximately
5,000 private school students received equitable services under Title I-A last year will receive less
services as the CARES Act funds proportioned for equitable services will be spread amongst all
private school students instead of only those students most at-risk.
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Declaration of Eric S. Gordon (3:20-cv-04478-SK)
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this ____ day of July, 2020, at Cleveland, Ohio.
________________________________________
Eric S. Gordon
CEO, Cleveland Municipal School District
__
_ __
_ ___________
Eric S. Gordon
15th
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 320 of 355
EXHIBIT A
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 321 of 355
Ohio Department of Education ESSER Application
to the U.S. Department of Education
Certification and Agreement
for Funding under the
Education Stabilization Fund Program Elementary
and Secondary School Emergency Relief Fund
(ESSER Fund)
CFDA Number: 84.425D
OMB Number: 1810-0743
Expiration Date: 10/31/2020
Paperwork Burden Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless
such collection displays a valid OMB control number. The OMB control number for this information collection is 1810-
0743. The time required to complete this information collection is estimated to average 5 hours per response, including time
for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. The obligation to respond to this collection is required to obtain benefit
under the Coronavirus Aid, Relief, and Economic Security Act. If you have any comments concerning the accuracy of
the time estimate, suggestions for improving this individual collection, or if you have comments or concerns regarding
the status of your individual form, application or survey, please contact Christopher Tate, Office of Elementary and
Secondary Education, U.S. Department of Education, 400 Maryland Ave., S.W., Room 3E229, Washington, D.C. 20202
directly.
May 5, 2020
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 322 of 355
PROGRAM BACKGROUND INFORMATION
Purpose
Under the Elementary and Secondary School Emergency Relief Fund (ESSER Fund), the
Department awards grants to State educational agencies (SEAs) for the purpose of providing local
educational agencies (LEAs), including charter schools that are LEAs, with emergency relief funds
to address the impact that Novel Coronavirus Disease 2019 (COVID-19) has had, and continues to
have, on elementary and secondary schools across the nation. LEAs must provide equitable services
to students and teachers in non-public schools as required under the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act).
Eligibility
SEAs in any of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
Timeline
The SEA will have one year, from the date of its ESSER award, to award funds. Any funds not
awarded by the SEA within one year of receiving its award will be returned to the Department to be
reallocated to other States consistent with the CARES Act.
Uses of Funds
SEAs:
The SEA must use no less than 90 percent of its allocation to make subgrants to LEAs, including
charter schools that are LEAs, based on each LEA’s share of funds received under part A of title I
of the ESEA in fiscal year 2019. With the funds not subgranted to LEAs, the SEA may reserve up
to an amount equal to ½ of 1 percent of the total allocation for administrative costs, and the
remaining funds may be used for emergency needs as determined by the SEA to address issues
responding to COVID-19. These emergency needs may be addressed through the use of grants or
contracts.
LEAs:
LEAs may use funds for any purposes listed in section 18003(d) of the CARES Act. (See Appendix
A.)
Program Contact
For additional information, please contact Christopher Tate by telephone at (202) 453-6047 or by
email at ESSERF@ed.gov.
ii
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 323 of 355
CERTIFICATION AND AGREEMENT INSTRUCTIONS
To receive an ESSER Fund allocation, SEAs must submit to the Department the following
information:
x
A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
x
Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
x
Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
x
Other assurances and certifications. (Part D of the Certification and Agreement)
For purposes of this document, the term “Certification and Agreement” is the application that an
SEA is required to file under section 18003(a) of Division B of the CARES Act.
Certification and Agreement Submission Information
An SEA must submit a Certification and Agreement to the Department no later than July 1, 2020.
Please submit your Certification and Agreement to the Department as follows:
Email an electronic version of the ESSER Fund Certification and Agreement in .PDF (Portable
Document Format) to ESSERF@ed.gov.
APPENDICES
Appendix A – Authorizing Statute
Appendix B – State Allocation Table
iii
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ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF
FUND (ESSER FUND)
STATE EDUCATIONAL AGENCY
PART A: CERTIFICATION AND AGREEMENT COVER SHEET
State:
CFDA Number: 84.425D
Legal Name:
DUNS Number:
Chief State School Officer:
Mailing Address:
State Contact for Elementary and Secondary School Emergency Relief Fund:
Position and Office:
Mailing Address:
Telephone:
Email address:
To the best of my knowledge and belief, all the information and data in this agreement are true and correct. I
acknowledge and agree that the failure to comply with all Assurances and Certifications in this Agreement, all
relevant provisions and requirements of the CARES Act, Pub. L. No. 116-136 (March 27, 2020), or any other
applicable law or regulation may result in liability under the False Claims Act, 31 U.S.C. § 3729, et seq.; OMB
Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180,
as adopted and amended as regulations of the Department in 2 CFR part 3485; and 18 USC § 1001, as
appropriate.
Chief State School Officer or Authorized Representative (Typed Name):
Telephone:
Signature of Chief State School Officer or Authorized Representative:
Date:
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
Jeremy Marks
614-466-4161
05/05/2020
Jeremy Marks
Director, Office of Federal Programs
25 S. Front Street
Columbus, Ohio 43215
614-466-4161
Jeremy.Marks@education.ohio.gov
Ohio
Ohio Department of Education
809174378000
Paolo DeMaria
25 S. Front Street, Columbus, Ohio 43215
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 325 of 355
PART B: PROGRAMMATIC, FISCAL, AND REPORTING ASSURANCES
The [Chief State School Officer or his/her authorized representative] assures the following:
1. The SEA will allocate no less than 90 percent of the grant funds under this program to local
educational agencies (LEAs) (including charter schools that are LEAs) in the State. Under the
ESSER Fund, the SEA will award grants by formula to State educational agencies (SEAs) for
the purpose of providing LEAs, including charter schools that are LEAs, with emergency relief
funds to address the impact that the Novel Coronavirus Disease 2019 (COVID-19) has had, and
continues to have, on elementary and secondary schools across the Nation. This includes both
continuing to provide educational services, such as remote learning, while schools and
campuses are closed, and developing and implementing plans for the return to normal
operations. The SEA will allocate these funds to LEAs on the basis of their respective shares of
funds received under title I, part A of the Elementary and Secondary Education Act of 1965 in
fiscal year 2019.
2. The SEA will use the remaining funds (hereafter SEA reserve) for emergency needs as
determined by the SEA to address issues related to COVID-19, which may be addressed through
the use of grants or contracts. From an SEA’s reserve, the SEA may use not more than 1/2 of 1
percent of the SEA’s total grant for administrative costs.
3. The SEA will ensure that LEAs use ESSER funds for activities allowable under section
18003(d) of Division B of the CARES Act. (See Appendix A.)
The Department generally does not consider the following to be an allowable use of ESSER
funds, under any part of 18003: 1) subsidizing or offsetting executive salaries and benefits of
individuals who are not employees of the SEA or LEAs or 2) expenditures related to state or
local teacher or faculty unions or associations.
4. The SEA will ensure that LEAs receiving ESSER funds will provide equitable services to
students and teachers in non-public schools as required under 18005 of Division B of the
CARES Act.
5. The SEA will ensure that an LEA receiving ESSER funds will provide equitable services to
students and teachers in non-public schools located within the LEA in the same manner as
provided under section 1117 of the ESEA, as determined through timely and meaningful
consultation with representatives of non-public schools.
x
The SEA will ensure that a public agency will maintain control of funds for the services
and assistance provided to a non-public school under the ESSER Fund.
x
The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
x
The SEA will ensure that services to a non-public school with ESSER funds will be
provided by a public agency directly, or through contract with, another public or private
entity.
6. The SEA will comply with the maintenance of effort provision in Section 18008(a) of Division
B of the CARES Act absent waiver by the Secretary pursuant to Section 18008(b) thereof.
7. The SEA and each LEA and any other entity that receives ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
2
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any disruptions or closures related to COVID-19 in compliance with Section 18006 of Division
B of the CARES Act. In addition, each entity that accepts funds will continue to pay employees
and contractors to the greatest extent practicable based on the unique financial circumstances of
the entity. CARES Act funds generally will not be used for bonuses, merit pay, or similar
expenditures, unless related to disruptions or closures resulting from COVID-19.
8. The SEA must assure that, when applicable, it will provide technical assistance to LEAs on the
use of ESSER funds for remote learning, which includes both distance education as defined in
section 103(7) of the HEA and distance learning as defined in ESEA section 8101(14), so that
students can continue learning during school closures.
9. The SEA will comply with all reporting requirements, including those in Section 15011(b)(2) of
Division B of the CARES Act, and submit required quarterly reports to the Secretary at such
time and in such manner and containing such information as the Secretary may subsequently
require. (See also 2 CFR 200.327-200.329). The Secretary may require additional reporting in
the future, which may include: the methodology LEAs will use to provide services or assistance
to students and staff in both public and non-public schools, the uses of funds by the LEAs or
other entities and demonstration of their compliance with Section 18003(d), such as any use of
funds addressing the digital divide, including securing access to home-based connectivity and
remote-use devices, related issues in supporting remote learning for all students, including
disadvantaged populations.
10. The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
x
A budget for the SEA’s reserve that includes information about the up to 1/2 of 1 percent
of the SEA’s total grant for administrative costs and the uses of funds for emergency
needs to address issues related to COVID-19; and
x
An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
11. The SEA will ensure that every recipient and subrecipient of ESSER funds will cooperate with
any examination of records with respect to such funds by making records available for
inspection, production, and examination, and authorized individuals available for interview and
examination, upon the request of (i) the Department and/or its Inspector General; or (ii) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
12. The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within 1 year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Signature:
Date:
3
May 5, 2020
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 327 of 355
PART C: USES OF ELEMENTARY AND SECONDARY SCHOOL
EMERGENCY RELIEF FUNDS
Section 18003 of Division B of the CARES Act provides in relevant part that grants awarded under
the Elementary and Secondary School Emergency Relief Fund be used to support the ability of local
educational agencies (LEAs) to continue to provide educational services to their students. The
Department requests the following:
1. Information that the SEA may request LEAs to include in their subgrant applications to the
SEA. For example, an SEA might propose to include the following in developing its subgrant
application:
x
How the LEA will determine its most important educational needs as a result of COVID-
19.
x
The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
x
The extent to which the LEA intends to use ESSER funds to promote remote learning.
x
How the LEA intends to assess and address student learning gaps resulting from the
disruption in educational services.
The above considerations are in addition to the application information requirements from
sections 442 and 427 of the General Education Provisions Act (GEPA) (20 U.S.C. § 1232e and
§ 1228a).
4
The Ohio Department of Education has developed a streamlined LEA application that
will be shared with the LEAs and hard coded into our e-grant system, known as the
CCIP. We will ask for basic information on the most important education needs as a
result of COVID19, their timeline for providing services and supports to public and
nonpublic schools and the extent to which the LEA plans to use ESSER funds to promote
remote learning. The Department plans to provide districts who need the emergency
funds during the 2019-2020 school year with access to the funds as soon as they submit
an approved application. The application will require all applicable assurances including
the requirement to provide timely and meaningful consultation with nonpublic schools
and to provide equitable services to nonpublic students and teachers. The application will
require a budget for intended uses of funds and assurance to they the subgrantee will
meet all reporting and compliance requirements for managing and administering federal
education grants.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 328 of 355
2. The extent to which the SEA intends to use any portion of its SEA reserve (up to 10 percent of
its ESSER Fund award) to support:
x
technological capacity and access – including hardware and software, connectivity, and
instructional expertise – to support remote learning. If so, please describe the strategies
the SEA intends to use to serve disadvantaged populations listed in Sec. 18003(d)(4) of
the CARES Act; and
x
remote learning by developing new informational and academic resources and
expanding awareness of, and access to, best practices and innovations in remote learning
and support for students, families, and educators.
5
The Ohio Department of Education is still working with all stakeholders, including
nonpublic officials, to determine the best approach to use our state-level activities. The
Department plans to use the full amount for state-level activities including the
maximum amount reserved for state administration.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 329 of 355
PART D: OTHER ASSURANCES AND CERTIFICATIONS
The [Chief State School Officer or his/her authorized representative] assures or certifies the
following:
1. The SEA will comply with all applicable assurances in OMB Standard Forms 424B and D
(Assurances for Non-Construction and Construction Programs), including the assurances
relating to the legal authority to apply for assistance; access to records; conflict of interest; merit
systems; nondiscrimination; Hatch Act provisions; labor standards; flood hazards; historic
preservation; protection of human subjects; animal welfare; lead-based paint; Single Audit Act;
and the general agreement to comply with all applicable Federal laws, executive orders and
regulations.
2. With respect to the certification regarding lobbying in Department Form 80-0013, no Federal
appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with the making or
renewal of Federal grants under this program; the SEAe will complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying,” when required (34 C.F.R. Part 82,
Appendix B); and the SEA will require the full certification, as set forth in 34 C.F.R. Part 82,
Appendix A, in the award documents for all subawards at all tiers.
3. Any LEA receiving funding under this program will have on file with the SEA a set of
assurances that meets the requirements of section 442 of the General Education Provisions Act
(GEPA) (20 U.S.C. 1232e).
4. To the extent applicable, an LEA will include in its local application a description of how the
LEA will comply with the requirements of section 427 of GEPA (20 U.S.C. 1228a). The
description must include information on the steps the LEA proposes to take to permit students,
teachers, and other program beneficiaries to overcome barriers (including barriers based on
gender, race, color, national origin, disability, and age) that impede equal access to, or
participation in, the program.
5. The SEA will comply with the Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (Uniform Guidance) requirements in Subpart D—Post
Federal Award Requirements (2 CFR §§200.300-345) and Subpart E—Cost Principles (2 CFR
§§200.400-475) to ensure that LEAs, including charter schools that are LEAs, are using ESSER
funds for purposes that are reasonable, necessary, and allocable under the CARES Act.
6. The SEA and other entities will comply with the provisions of all applicable acts, regulations
and assurances; the following provisions of Education Department General Administrative
Regulations (EDGAR) 34 CFR parts 76, 77, 81, 82, 84, 97, 98, and 99; the OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part
180, as adopted and amended as regulations of the Department in 2 CFR part 3485; and the
Uniform Guidance in 2 CFR part 200, as adopted and amended as regulations of the Department
in 2 CFR part 3474.
Chief State School Officer or Authorized Representative (Printed Name):
Signature:
Date:
6
05/05/2020
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 330 of 355
Appendix A: Relevant Excerpts from Title VIII of Division B of the CARES
Act, the Emergency Appropriations for Coronavirus Health Response and
Agency Operations
DEPARTMENT OF EDUCATION
EDUCATION STABILIZATION FUND
For an additional amount for ‘‘Education Stabilization Fund’’, $30,750,000,000, to remain available
through September 30, 2021, to prevent, prepare for, and respond to coronavirus, domestically or
internationally: Provided, That such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency
Deficit Control Act of 1985.
GENERAL PROVISIONS
EDUCATION STABILIZATION FUND
SEC. 18001. (a) ALLOCATIONS.—From the amount made available under this heading in this Act
to carry out the Education Stabilization Fund, the Secretary shall first allocate—
(1) not more than 1/2 of 1 percent to the outlying areas on the basis of their respective needs, as
determined by the Secretary, in consultation with the Secretary of the Interior;
(2) one-half of 1 percent for the Secretary of Interior, in consultation with the Secretary of
Education, for programs operated or funded by the Bureau of Indian Education; and
(3) 1 percent for grants to States with the highest coronavirus burden to support activities under this
heading in this Act, for which the Secretary shall issue a notice inviting applications not later than
30 days of enactment of this Act and approve or deny applications not later than 30 days after
receipt.
(b) RESERVATIONS.—After carrying out subsection (a), the Secretary shall reserve the remaining
funds made available as follows:
(1) 9.8 percent to carry out section 18002 of this title.
(2) 43.9 percent to carry out section 18003 of this title.
(3) 46.3 percent to carry out section 18004 of this title.
ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF FUND
SEC. 18003. (a) GRANTS.—From funds reserved under section 18001(b)(2) of this title, the
Secretary shall make elementary and secondary school emergency relief grants to each State
educational agency with an approved application. The Secretary shall issue a notice inviting
applications not later than 30 days of enactment of this Act and approve or deny applications not
later than 30 days after receipt.
(b) ALLOCATIONS TO STATES.—The amount of each grant under subsection (a) shall be
allocated by the Secretary to each State in the same proportion as each State received under part A
of title I of the ESEA of 1965 in the most recent fiscal year.
(c) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—Each State shall allocate not less
than 90 percent of the grant funds awarded to the State under this section as subgrants to local
educational agencies (including charter schools that are local educational agencies) in the State in
proportion to the amount of funds such local educational agencies and charter schools that are local
educational agencies received under part A of title I of the ESEA of 1965
in the most recent fiscal year.
(d) USES OF FUNDS.—A local educational agency that receives funds under this title may use the
funds for any of the following:
7
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(1) Any activity authorized by the ESEA of 1965, including the Native Hawaiian Education Act and
the Alaska Native Educational Equity, Support, and Assistance Act (20 U.S.C. 6301 et seq.), the
Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) (‘‘IDEA’’), the Adult
Education and Family Literacy Act (20 U.S.C. 1400 et seq.), the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) (‘‘the Perkins Act’’), or subtitle B of title
VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.).
(2) Coordination of preparedness and response efforts of local educational agencies with State,
local, Tribal, and territorial public health departments, and other relevant agencies,
to improve coordinated responses among such entities to prevent, prepare for, and respond to
coronavirus.
(3) Providing principals and others school leaders with the resources necessary to address the needs
of their individual schools.
(4) Activities to address the unique needs of low-income children or students, children with
disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and
foster care youth, including how outreach and service delivery will meet the needs of each
population.
(5) Developing and implementing procedures and systems to improve the preparedness and
response efforts of local educational agencies.
(6) Training and professional development for staff of the local educational agency on sanitation
and minimizing the spread of infectious diseases.
(7) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including
buildings operated by such agency.
(8) Planning for and coordinating during long-term closures, including for how to provide meals to
eligible students, how to provide technology for online learning to all students,
how to provide guidance for carrying out requirements under the Individuals with Disabilities
Education Act (20 U.S.C. 1401 et seq.) and how to ensure other educational services can continue
to be provided consistent with all Federal, State, and local requirements.
(9) Purchasing educational technology (including hardware, software, and connectivity) for students
who are served by the local educational agency that aids in regular and substantive
educational interaction between students and their classroom instructors, including low-income
students and students with disabilities, which may include assistive technology
or adaptive equipment.
(10) Providing mental health services and supports.
(11) Planning and implementing activities related to summer learning and supplemental afterschool
programs, including providing classroom instruction or online learning
during the summer months and addressing the needs of low-income students, students with
disabilities, English learners, migrant students, students experiencing homelessness, and
children in foster care.
(12) Other activities that are necessary to maintain the operation of and continuity of services in
local educational agencies and continuing to employ existing staff of the local educational agency.
(e) STATE FUNDING.—With funds not otherwise allocated under subsection (c), a State may
reserve not more than 1/2 of 1 percent for administrative costs and the remainder for emergency
needs as determined by the state educational agency to address issues responding to coronavirus,
which may be addressed through the use of grants or contracts.
(f) REALLOCATION.—A State shall return to the Secretary any
funds received under this section that the State does not award within 1 year of receiving such funds
and the Secretary shall reallocate such funds to the remaining States in accordance with
subsection (b).
8
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ASSISTANCE TO NON-PUBLIC SCHOOLS
SEC. 18005. (a) IN GENERAL.—A local educational agency receiving funds under sections 18002
or 18003 of this title shall provide equitable services in the same manner as provided under section
1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in
consultation with representatives of non-public schools.
(b) PUBLIC CONTROL OF FUNDS.—The control of funds for the services and assistance
provided to a non-public school under subsection (a), and title to materials, equipment, and property
purchased with such funds, shall be in a public agency, and a public agency shall administer such
funds, materials, equipment, and property and shall provide such services (or may contract for the
provision of such services with a public or private entity).
CONTINUED PAYMENT TO EMPLOYEES
SEC. 18006. A local educational agency, State, institution of higher education, or other entity that
receives funds under ‘‘Education Stabilization Fund’’, shall to the greatest extent practicable,
continue to pay its employees and contractors during the period of any disruptions or closures
related to coronavirus.
DEFINITIONS
SEC. 18007. Except as otherwise provided in sections 18001– 18006 of this title, as used in such
sections—
(1) the terms ‘‘elementary education’’ and ‘‘secondary education’’ have the meaning given such
terms under State law;
(2) the term ‘‘institution of higher education’’ has the meaning given such term in title I of the
Higher Education Act of 1965 (20 U.S.C. 1001 et seq.);
(3) the term ‘‘Secretary’’ means the Secretary of Education;
(4) the term ‘‘State’’ means each of the 50 States, the District of Columbia, and the Commonwealth
of Puerto Rico;
(5) the term ‘‘cost of attendance’’ has the meaning given such term in section 472 of the Higher
Education Act of 1965.
(6) the term ‘‘Non-public school’’ means a non-public elementary and secondary school that (A) is
accredited, licensed, or otherwise operates in accordance with State law; and
(B) was in existence prior to the date of the qualifying emergency for which grants are awarded
under this section;
(7) the term ‘‘public school’’ means a public elementary or secondary school; and
(8) any other term used that is defined in section 8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801) shall have the meaning given the term in such
section.
MAINTENANCE OF EFFORT
SEC. 18008. (a) A State’s application for funds to carry out sections 18002 or 18003 of this title
shall include assurances that the State will maintain support for elementary and secondary
education, and State support for higher education (which shall include State funding to institutions
of higher education and state need based financial aid, and shall 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 provided in the 3 fiscal years
preceding the date of enactment of this Act.
(b) The secretary may waive the requirement in subsection (a) for the purpose of relieving fiscal
burdens on States that have experienced a precipitous decline in financial resources.
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REPORTING ON USE OF FUNDS SEC. 15011.
(a) In this section—
(1) the terms ‘‘agency’’, ‘‘appropriate congressional committees’’, ‘‘Committee’’, ‘‘covered
funds’’, and ‘‘Coronavirus response’’ have the meanings given those terms in section 15010;
(2) the term ‘‘covered recipient’’ (A) means any entity that receives large covered funds; and (B)
includes any State, the District of Columbia, and any territory or possession of the United States;
and
(3) the term ‘‘large covered funds’’ means covered funds that amount to more than $150,000.
…
(b)(2) Not later than 10 days after the end of each calendar quarter, each covered recipient shall
submit to the agency and the Committee a report that contains—
(A) the total amount of large covered funds received from the agency;
(B) the amount of large covered funds received that were expended or obligated for each project or
activity;
(C) a detailed list of all projects or activities for which large covered funds were expended or
obligated, including—
(i) the name of the project or activity;
(ii) a description of the project or activity; and
(iii) the estimated number of jobs created or retained by the project or activity, where applicable;
and
(D) detailed information on any level of subcontracts or subgrants awarded by the covered recipient
or its subcontractors or subgrantees, to include the data elements required to comply with the
Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101 note) allowing
aggregate reporting on awards below $50,000 or to individuals, as prescribed by the Director of the
Office of Management and Budget.
(3) Not later than 30 days after the end of each calendar quarter, the Committee, in consultation
with the agency that made large covered funds available to any covered recipient shall make the
information in reports submitted under paragraph (2) publicly available by posting the information
on the website established under section 15010(g).
(4)(A) Each agency, in coordination with the Committee and the Director of the Office of
Management and Budget shall provide user-friendly means for covered recipients to meet
requirements of this subsection.
(B) Federal agencies may use existing mechanisms to ensure that information under this subsection
is reported accurately.
(c)(1) The Director of the Office of Management and Budget, in consultation with the Secretary of
the Treasury, the Administrator of the Small Business Administration, and the Chairperson of the
Council of Economic Advisors, shall submit to the appropriate congressional committees and
publicly release on the website established under section 15010(g) quarterly reports that detail the
impact of programs funded through large covered funds on employment, estimated economic
growth, and other key economic indicators, including information about impacted industries.
(2)(A) The first report submitted under paragraph (1) shall be submitted not later than 45 days after
the end of the first full quarter following the date of enactment of this Act.
(B) The last report required to be submitted under paragraph (1) shall apply to the quarter in which
the Committee terminates.
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APPENDIX B: STATE ALLOCATION TABLE
Elementary and Secondary School Emergency Relief Fund
STATE
STATE
TOTAL
Minimum LEA
Distribution1
Maximum SEA
Reservation
Maximum for
SEA
Administration2
TOTAL
13,229,265,000
11,906,338,500
1,322,926,500
66,146,325
ALABAMA
216,947,540
NVRIOROITUS
ONISVQITRQ
NIMUQITPU
ALASKA
38,407,914
PQIRSTINOP
PIUQMITVN
NVOIMQM
ARIZONA
277,422,944
OQVISUMISRM
OTITQOIOVQ
NIPUTINNR
ARKANSAS
128,758,638
NNRIUUOITTQ
NOIUTRIUSQ
SQPITVP
CALIFORNIA
1,647,306,127
NIQUOIRTRIRNQ
NSQITPMISNP
UIOPSIRPN
COLORADO
120,993,782
NMUIUVQIQMQ
NOIMVVIPTU
SMQIVSV
CONNECTICUT
111,068,059
VVIVSNIORP
NNINMSIUMS
RRRIPQM
DELAWARE
43,492,753
PVINQPIQTU
QIPQVIOTR
ONTIQSQ
DISTRICT OF
COLUMBIA
42,006,354
PTIUMRITNV
QIOMMISPR
ONMIMPO
FLORIDA
770,247,851
SVPIOOPIMSS
TTIMOQITUR
PIURNIOPV
GEORGIA
457,169,852
QNNIQROIUST
QRITNSIVUR
OIOURIUQV
HAWAII
43,385,229
PVIMQSITMS
QIPPUIROP
ONSIVOS
IDAHO
47,854,695
QPIMSVIOOS
QITURIQTM
OPVIOTP
ILLINOIS
569,467,218
RNOIROMIQVS
RSIVQSITOO
OIUQTIPPS
INDIANA
214,472,770
NVPIMORIQVP
ONIQQTIOTT
NIMTOIPSQ
IOWA
71,625,561
SQIQSPIMMR
TINSOIRRS
PRUINOU
KANSAS
84,529,061
TSIMTSINRR
UIQROIVMS
QOOISQR
KENTUCKY
193,186,874
NTPIUSUINUT
NVIPNUISUT
VSRIVPQ
LOUISIANA
286,980,175
ORUIOUOINRU
OUISVUIMNU
NIQPQIVMN
MAINE
43,793,319
PVIQNPIVUT
QIPTVIPPO
ONUIVST
MARYLAND
207,834,058
NUTIMRMISRO
OMITUPIQMS
NIMPVINTM
MASSACHUSETTS
214,894,317
NVPIQMQIUUR
ONIQUVIQPO
NIMTQIQTO
MICHIGAN
389,796,984
PRMIUNTIOUS
PUIVTVISVU
NIVQUIVUR
MINNESOTA
140,137,253
NOSINOPIROU
NQIMNPITOR
TMMISUS
MISSISSIPPI
169,883,002
NROIUVQITMO
NSIVUUIPMM
UQVIQNR
MISSOURI
208,443,300
NUTIRVUIVTM
OMIUQQIPPM
NIMQOIONT
MONTANA
41,295,230
PTINSRITMT
QINOVIROP
OMSIQTS
NEBRASKA
SRIMURIMUR
RUIRTSIRTT
SIRMUIRMV
PORIQOR
NEVADA
117,185,045
NMRIQSSIRQN
NNITNUIRMR
RURIVOR
NEW HAMPSHIRE
37,641,372
PPIUTTIOPR
PITSQINPT
NUUIOMT
NEW JERSEY
310,371,213
OTVIPPQIMVO
PNIMPTINON
NIRRNIURS
NEW MEXICO
NMUIRTQITUS
VTITNTIPMT
NMIURTIQTV
RQOIUTQ
NEW YORK
1,037,045,603
VPPIPQNIMQP
NMPITMQIRSM
RINURIOOU
NORTH CAROLINA
396,311,607
PRSISUMIQQS
PVISPNINSN
NIVUNIRRU
NORTH DAKOTA
33,297,699
OVIVSTIVOV
PIPOVITTM
NSSIQUV
OHIO
489,205,200
QQMIOUQISUM
QUIVOMIROM
OIQQSIMOS
OKLAHOMA
160,950,476
NQQIURRIQOU
NSIMVRIMQU
UMQITRO
1 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
2 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
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STATE
STATE
TOTAL
Minimum LEA
Distribution3
Maximum SEA
Reservation
Maximum for
SEA
Administration4
OREGON
121,099,019
NMUIVUVINNT
NOINMVIVMO
SMRIQVR
PENNSYLVANIA
523,807,198
QTNIQOSIQTU
ROIPUMITOM
OISNVIMPS
RHODE ISLAND
46,350,444
QNITNRIQMM
QISPRIMQQ
OPNITRO
SOUTH CAROLINA
216,311,158
NVQISUMIMQO
ONISPNINNS
NIMUNIRRS
SOUTH DAKOTA
41,295,230
PTINSRITMT
QINOVIROP
OMSIQTS
TENNESSEE
259,891,154
OPPIVMOIMPV
ORIVUVINNR
NIOVVIQRS
TEXAS
1,285,886,064
NINRTIOVTIQRU
NOUIRUUISMS
SIQOVIQPM
UTAH
67,821,787
SNIMPVISMU
SITUOINTV
PPVINMV
VERMONT
31,148,360
OUIMPPIROQ
PINNQIUPS
NRRITQO
VIRGINIA
238,599,192
ONQITPVIOTP
OPIURVIVNV
NINVOIVVS
WASHINGTON
216,892,447
NVRIOMPIOMO
ONISUVIOQR
NIMUQIQSO
WEST VIRGINIA
86,640,471
TTIVTSIQOQ
UISSQIMQT
QPPIOMO
WISCONSIN
174,777,774
NRTIOVVIVVT
NTIQTTITTT
UTPIUUV
WYOMING
32,562,651
OVIPMSIPUS
PIORSIOSR
NSOIUNP
PUERTO RICO
349,113,105
PNQIOMNITVR
PQIVNNIPNN
NITQRIRSS
3 The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
4 With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to ½ of 1 percent of the total allocation for administrative costs.
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EXHIBIT 14
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF LINDSEY OATES
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DECLARATION OF LINDSEY OATES
I, Lindsey Oates, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
1.
I am the Chief Financial Officer (“CFO”) of the Board of Education for the City
School District of the City of New York (a/k/a the New York City Department of Education)
(“NYCDOE”), which oversees and manages the New York City school district, located in New
York, New York. My educational background includes a Bachelor’s of Arts degree in Political
Science and Sociology from Syracuse University and a Master’s Degree in Public Administration
from Cornell University. I have been employed as CFO of the NYCDOE since July 2018. Prior to
that, I served as Deputy CFO commencing in July 2014. In my role as CFO, I am responsible for
overseeing all aspects of financial operations in the school district, including school allocations and
funding for central-based programs and services. I oversee the Department of Education’s $34
billion expense budget, as well as its payroll, accounting, financial IT services, contracts,
procurement, and revenue operations.
2.
I submit this Declaration in support of the NYCDOE’s litigation against Elisabeth D.
DeVos, in her official capacity as Secretary of Education, and the United States Department of
Education (the “Department”) regarding the recently issued Rule entitled Providing Equitable
Services to Students and Teachers in Non-Public Schools, 85 Fed. Reg. 39,479 (July 1, 2020) (the
“Rule”). The information set forth below is based upon my personal knowledge, information
provided to me by other NYCDOE employees, and documents provided to and reviewed by me. I
have reviewed the Rule in order to understand its requirements and its impact on the New York City
public schools.
The NYC School District and its Funding
3.
The NYCDOE is the largest school district in the nation, with approximately 1,600
public schools that serve approximately 1.1 million students, of whom approximately 820,093
(72.8%) are economically disadvantaged, 927,110 (82.3%) are minorities, 227,553 (20.2%) have a
disability, and 148,696 (13.2%) are English Language Learners. For many of these at-risk students,
the City’s public schools are essential sources not only of education, but of food, transportation,
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medical care, and emotional support. These students are particularly vulnerable to the effects of the
COVID-19 pandemic and require extensive supports.
4.
The NYCDOE is the local educational agency (“LEA”) of the New York City school
district, except that, for purposes of Title I, Part A (“Title I”) of the Elementary and Secondary
Education Act (“ESEA”), each borough of the City is considered an LEA and receives a distinct
allocation of Title I funding administered by the New York State Education Department.
5.
Pursuant to Title I, the NYCDOE designates schools eligible for Title I funding based
on the poverty percentages of each borough. In the Bronx, Brooklyn, Manhattan or Queens, Title I-
status for a school is reached when no less than 60% of its students are from low-income families;
the percentage is 52.13% in Staten Island. Although the statutory threshold for Title I-school status
is set far lower, at a floor of 35% (20 U.S.C. 6313(b)(1)), the NYCDOE exercises the discretion
permitted by Title I to set a higher poverty threshold to ensure that the funding provided to Title I-
schools is sufficient to provide adequate programs and services to those schools with the greatest
needs. Even with those far higher thresholds, in the 2019-2020 school year, the NYC school district
was comprised of 1,314 Title I schools and 269 non-Title I schools.
6.
The NYCDOE budget is comprised of federal, state and local funding sources.
Based on the City’s Fiscal Year (“FY”) 2021 Adopted Budget, 57% derives from City tax levy
funding, 36% from State funding, 6% from federal funding, and less than 1% from other funding
sources.
7.
The NYCDOE funds its schools through various means. The Fair Student Funding
Formula (“FSF”) is the primary funding source for schools, and consists of unrestricted state and
local funding that affords school leaders with discretion to determine how to make expenditures for
their schools. FSF covers basic instructional needs and is allocated based on the number and
particular needs of students enrolled in each school. After allocating a fixed amount for each
student, the FSF funding formula ascribes weights to each student to allocate greater funding for
particular needs, such as grade level, academic intervention for at-risk students, and special programs
for English Language Learners and students with disabilities.
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8.
FSF provides funds for about two-thirds of a school’s budget. The remaining
approximate one-third is comprised of funding restricted to specific purposes, including federal
grants like Title I.
9.
The NYCDOE also has a central budget that covers central administration costs and
support services that are provided on a citywide basis for all schools in the City, including, but not
limited to, school facilities services, meals, school safety, pupil transportation, and energy and leases.
10.
A significant portion of NYCDOE’s budget derives from New York State’s
allocation of school aid, known as Foundation Aid. Due to deep economic losses caused by the
COVID-19 pandemic, New York State instituted a “pandemic adjustment” for FY 2021, reducing
the NYCDOE’s Foundation Aid by $716,903,289, and offsetting this budget cut dollar-for-dollar by
backfilling it with federal CARES Act funding. The Department’s misinterpretation of the
Education Stabilization Fund section of the CARES Act only intensifies the impact of these cuts by
reducing the flexibility or amount of this funding (as explained in paragraphs 16-18 and 20 below).
11.
The CARES Act requires LEAs receiving monies from the GEER and/or ESSER
funds to allocate a portion of those funds to provide “equitable services” to students and teachers at
nonpublic schools “in the same manner as provided under Section 1117 of the ESEA….” CARES
Act § 18005(a).
12.
If NYCDOE were to distribute these funds as required by the statutory language of
the CARES Act, “in the same manner” as required by the equitable services provision in Section
1117 of the ESEA, the allocation would be based on the number of low-income nonpublic school
students who reside in a Title I school attendance area in relation to the total number of low-income
nonpublic and public school students who reside in a Title I attendance area. Under this
methodology, the proportional share to be provided to nonpublic schools for equitable services is
based on the number of low-income nonpublic school students who reside in a Title I school
attendance area. This would result in a total CARES Act allocation of $626 million to public
schools and $91 million to nonpublic schools.
//
//
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The Harm to the NYCDOE Caused by the Department’s Rule
13.
In contrast to the methodology for computing the equitable share required by Title I,
and described above, the Department’s Rule penalizes NYCDOE by providing options that decrease
the amount of CARES Act funding to be allocated to NYCDOE or restrict the use of those funds.
14.
Under Rule Option #1, funds are allocated according to either: (1) the proportional
share calculated under Title I for the 2019-2020 school year; or (2) an updated calculation using the
Title I formula of low-income students from nonpublic schools in relation to the number of low-
income students in public and nonpublic schools based on current data.
15.
However, if NYCDOE were to use either of these methods given by Option #1, the
Rule imposes two additional requirements that would severely restrict the use of CARES Act funds.
These restrictions are in effect a “poison pill” that makes Option #1 onerous and harmful.
16.
The first “poison pill” would require the NYCDOE to use CARES Act funds only in
Title I schools, thereby rendering 269 non-Title I schools (which still serve many low-income and at-
risk students) in NYC ineligible for much-needed CARES Act funding at a time of declining State
and local revenues. Since State and local revenues feed FSF, the requirement to only allocate
CARES Act funding to Title I schools would necessitate the creation of a new methodology for this
funding that excludes non-Title I schools only weeks prior to the beginning of the school year. We
estimate the impact of this provision on non-Title I schools would be a loss of approximately $100
million.
17.
In addition, by limiting use of CARES Act funding to Title I schools only, the Rule
prevents NYCDOE from using the funds to pay for essential central services provided to all schools
in New York City, such as nursing and medical supplies, transportation, facilities maintenance and
improvements, food services (including staff to serve meals), technology platforms to facilitate
distance learning, and custodial services and cleaning supplies. These expenditures are made via
central budgets on behalf of schools and are difficult, if not impossible, to disaggregate by Title I
eligibility. This process allows NYCDOE to maximize its purchasing power and reduce the burden
on school principals, who can thereby more extensively focus on instructional services for their
school community.
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18.
The second “poison pill” is the Rule’s requirement that CARES Act funds may only
be used to supplement, not supplant, State and local funding in Title I schools. The Rule thereby
imports to the CARES Act the supplement not supplant provision found in Title I, even though there
is no such provision in the CARES Act statute. The Rule’s requirement would harm NYCDOE by
preventing it from using CARES Act funds in place of declining State and local funds, which is
particularly necessary in light of across-the-board budget cuts. This restriction contradicts the
purpose of the CARES Act, which is to provide funding to address issues caused by the pandemic,
such as maintaining continuity of services and continuing to employ existing staff, and to replace
city and local funds that have been eliminated due to fiscal constraints.
19.
These poison pills would severely curtail NYCDOE’s use of CARES Act funds, and
make it impossible to use the funding for the pressing needs that exist in the school district.
20.
The Rule’s Option #2 would also harm the NYCDOE. Rule Option #2 requires that,
in calculating the proportional share for equitable services for nonpublic schools, all nonpublic
school students must be counted, rather than only nonpublic school students who are low-income
and reside in a Title I attendance zone. Under this methodology, the proportional share for
nonpublic school students would increase by 58%, which amounts to approximately $53 million,
with a concurrent decrease in that amount to New York City public schools and students. Instead of
an allocation of $626 million to public schools and $91 million to nonpublic schools, only $573
million would be available to allocate to public schools, and $144 million would be allocated to
nonpublic schools.
21.
The Rule’s “options” deprive New York City public schools and students of the full
amount and flexible use of CARES Act funds, and, at the same time, bestow a windfall on nonpublic
schools, including wealthy private schools, giving them a far larger share of funding for “equitable
services”, while reducing the share provided to schools with large numbers of low-income students.
22.
The Rule’s injuries are illustrated by the budget cuts to NYCDOE in the FY21 State
Enacted Budget, in which those cuts were backfilled with CARES Act funds which will not be
available under the Rule’s draconian and unsupportable limitations and restrictions.
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23.
The Rule imposes significant burdens on NYCDOE and greatly harms the students in
New York City public schools. There is significantly less funding available to students in the public
schools, contrary to congressional intent. In addition, the confusion arising from the Department’s
Guidance and the Rule has resulted in a delay in the distribution of funds to students and teachers.
To date, New York City has not yet received any ESSER or GEER CARES Act funds.
24.
The Rule’s Options not only decrease the amount of funding allocated to NYCDOE,
they impermissibly restrict the use of those funds. This comes at a time when NYCDOE urgently
needs more funding to address novel problems caused by the COVID-19 pandemic. Since the onset
of the pandemic, NYCDOE has spent significant sums to assist students and families impacted by
the pandemic, including more than $300 Million on LTE enabled devices to give low-income
students access to remote learning, approximately $150 million on Regional Education Centers that
provided emergency child-care to essential workers during school closures, and approximately $40
million to provide meals to students. The urgent need for resources and federal support continues.
To re-open schools safely in the fall, additional funding will be needed for personal protective
equipment, improvement of ventilation systems in school buildings, disinfection and cleaning of
school facilities, and installation of digital platforms and technology for remote learning.
25.
The Rule’s reduction and/or restriction of CARES Act funds for New York City
public schools would impede NYCDOE’s efforts to provide these supports and services and other
educational services, and is contrary to the purpose of the CARES Act, which is to fund immediate
pandemic-related services and supports to school districts. The Rule will have a long-term negative
impact on hundreds of thousands of public school students affected by COVID-19, including those
most vulnerable to the ravages of the pandemic.
//
//
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EXHIBIT 15
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XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
SARAH E. BELTON
Supervising Deputy Attorney General
REBEKAH A. FRETZ
JAMES F. ZAHRADKA II
GARRETT LINDSEY (SBN 293456)
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 269-6402
E-mail: Garrett.Lindsey@doj.ca.gov
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al.,
Plaintiffs,
v.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Civil Case No. 3:20-cv-04478-SK
DECLARATION OF MEGHAN
WALLACE
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