State of California v. DeVos, No. 3:20-cv-04478 (N.D. Cal.): appendix of declarations in support of motion for preliminary injunction (Document 35-2, filed July 20, 2020)
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State of California v. DeVos, No. 3:20-cv-04478 (N.D. Cal.): appendix of declarations in support of motion for preliminary injunction, Document 35-2, filed July 20, 2020, a 28,119,306-byte PDF named 35-att2-appendix.pdf. No public link to an original was identified.
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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20
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
Page 1 of 355
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
STATE OF MICHIGAN, STATE OF
CALIFORNIA, DISTRICT OF
COLUMBIA, STATE OF HAWATI, 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,
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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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 2 of 355
APPENDIX OF DECLARATIONS
Exhibit
Number Declarant
1 MI Kyle Guerrant, Deputy Superintendent, Michigan Department of
Education
Lisa Constancio, Deputy Superintendent of Public Instruction,
Operations and Administration Branch, California Department of
2 CA .
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
Wanelle Kaneshiro-Erdmann, Director, Policy, Innovation,
5 HI Planning and Evaluation Branch, Office of Strategy Innovation
and Performance, Hawaii Department of Education
A. Pender Makin, Commissioner of Education, Maine Department
6 ME .
of Education
7 MD Karen B. Salmon, Ph.D., State Superintendent of Schools,
Maryland State Department of Education
Dr. Monica E. Goldson, Chief Executive Officer, Prince George’s
8 MD ;
County Public Schools
9 NM Gabriel C. Baca, Director, Student, School and Family Support
Bureau, New Mexico Public Education Department
Matthew Stem, Office of Elementary Education, Pennsylvania
10 PA .
Department of Education
Benjamin R. Jones, Chief Legal Counsel, Wisconsin Department
11 Wl . ;
of Public Instruction
. Dr. Janice K. Jackson, Chief Executive Officer, Chicago Board of
12 Chicago .
Education
Eric S. Gordon, Chief Executive Officer, Cleveland Municipal
13 Cleveland at
School District
14 ae York Lindsey Oates, Chief Financial Officer, New York City
y Department of Education
15 SFUSD Meghan Wallace, Chief Financial Officer, San Francisco Unified
School District
Appendix in Support of Motion for Preliminary Injunction
Case No. 3:20-cv-04478-SK
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 3 of 355
EXHIBIT |
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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 4 of 355
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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF KYLE GUERRANT
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 5 of 355
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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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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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 7 of 355
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.
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.
' Available at http://www.legislature.mi.gov/documents/2019-
2020/executiveorder/pdf/2020-EO-35.pdf.
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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 8 of 355
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.” 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. 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
? 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
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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 9 of 355
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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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 10 of 355
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 recetve 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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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. | MDEhas 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.
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 recetve 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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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 GU, T
Deputy Superintendent
Michigan Department of Education
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EXHIBIT A
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ELEMENTARY AND SECONDARY SCHOOL EMERGENCY RELIEF
FUND (ESSER FUND)
STATE EDUCATIONAL AGENCY
PART A: CERTIFICATION AND AGREEMENT COVER SHEET
State: Michigan CFDA Number: 84.425D
Legal Name: Michigan Department of Education DUNS Number: 80-533-6641
Chief State School Officer: Mailing Address:
Dr. Michael F. Rice, Ph.D P.O Box 30008, Lansing, MI 48909
State Contact for Elementary and Secondary School Emergency Relief Fund: Mr. Kyle L. Guerrant
Position and Office: Deputy Superintendent, Finance and Operations
Mailing Address: P.O Box 30008.
Lansing, MI 48909
Telephone:
517-241-0062
Email address: guerrantk@michigan.gov
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 seg.; 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:
Dr. Michael F. Rice, Ph.D 517-241-0494
. Signature of Chief State School Officer or Authorized Representative: Date: 94/27/2020
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
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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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
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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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.
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.
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.
The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
e 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
e An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
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 (11) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
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: M20 LK Date:
3 12 04/27/2020
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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.
The Michigan Department of Education will request the following information from eligible
LEAs applying for ESSER funds:
How the LEA will determine its most important educational needs as a result of
COVID19.
The extent to which the LEA intends to use ESSER funds in the 12 allowable use-of funds
categories (Section 18003(d) of Division B of the CARES Act). Eligible LEAs will submit a
budget indicating allowable uses, function codes, and accounting classifications.
In accordance with Section 427 of the General Education Provisions Act (GEPA),
information on how the LEA will provide equitable access to students, teachers, parents
and families in non-public schools located within the LEA boundary in the same manner
as provided in their consolidated application.
Required assurances and certifications based on ESSER Fund requirements and guidance
to include compliance with any LEA reporting requirements that will be subsequently
determined by USED. This includes all assurance requirements from section 442 of the
General Education Provisions Act (GEPA).
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:
The Michigan Department of Education intends to reserve up to 10 percent of the ESSER Fund
to establish an educational equity fund. These dollars will be allocated to LEAs through subgrant
applications. The primary purpose of the reserve fund is to reduce the digital divide in
Michigan’s highest-need school communities. Eligible LEAs include those with documented
limited technological capacity and access, and a high number of students who qualify as
economically disadvantaged. Eligible LEA applications may also include requests to use reserve
funds in the 12 allowable use of funds categories (Section 18003(d) of Division B of the CARES
Act).
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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.
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.
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).
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.
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.
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: N20 WK. Date:
C2 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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF LISA
V. CONSTANCIO
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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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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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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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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 Acct, 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.' 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:
'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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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 Acct.
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 recetve 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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I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct and of my own personal knowledge.
Executed on this 17th day of July, 2020, at Sacramento, California
v
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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 2 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:
e Acompleted cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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: California CFDA Number: 84.425D
Legal Name: California Department of Education DUNS Number: 807480843
Chief State School Officer: Mailing Address:
Dr. Linda Darling-Hammond 1430 N Street, Room 5111 Sacramento, CA 95814
State Contact for Elementary and Secondary School Emergency Relief Fund: Joseph Saenz
Position and Office: Federal Policy Liaison/ California Department of Education/Government Affairs
Mailing Address: 430) N Street, Suite 5602
Sacramento, CA 95814
Telephone:
wrePnone (916) 591-6391
Email address: jsaenz@cde.ca.gov
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 seg.; 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:
Dr. Linda Darling-Hammond (916) 319-0827
| Signature of Chief State School Officer or Authorized Representative: Date:
Pan As ~ an 04/28/2020
€
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
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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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
The SEA and each LEA and any other entity that recetves ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
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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.
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.
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.
The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
e 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
e An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
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.
The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within | year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Signature: Date:
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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:
e How the LEA will determine its most important educational needs as a result of COVID-
19.
e The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
e The extent to which the LEA intends to use ESSER funds to promote remote learning.
e 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).
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.
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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:
e 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
e 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.
We are still working with stakeholders, the Governor, and the Legislature to determine how best to
deploy our state-level activities funds given the emergency needs in in our state.
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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.
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.
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).
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.
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.
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:
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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)(1) 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 | 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) INGENERAL.—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—
(1) the name of the project or activity;
(11) a description of the project or activity; and
(111) 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
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration?
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 21,142,294 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
HAWAITI 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
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
> With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of 1 percent of the total allocation for administrative costs.
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Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation Administration*
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 17,976,424 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.
* With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of 1 percent of the total allocation for administrative costs.
12
California Department of Education
Tony Thurmond, State Superintendent of Public Instruction
1430 N Street, Sacramento, CA 95814-5901
916-319-0800
April 28, 2020
The Honorable Betsy DeVos
Secretary of Education
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-6100
Dear Secretary DeVos:
RE: Elementary and Secondary School Emergency Relief Fund Grant
On behalf of the California State Board of Education and the California Department of
Education (CDE), we respectfully request grant funding under the Elementary and
Secondary School Emergency Relief Fund (ESSER Fund) for the purpose of providing
local educational agencies (LEAs), including charter schools that are LEAs, with
emergency relief funds to address the impact of the Novel Coronavirus Disease 2019
(COVID-19).
On March 19, 2020, California Governor Gavin Newsom issued Executive Order N-33-
20, a statewide “shelter in place” to protect the health and well-being of all Californians
and to establish consistency across the state in order to slow the spread of COVID-19.
Since then, the CDE and SBE have worked tirelessly to ensure that we are giving our
schools as many resources as possible in order to guarantee the success of all
California students.
California is appreciative of the grant application and awards being released by the U.S.
Department of Education in such a streamlined manner. The State will comply with all
Assurances and Certifications listed in the ESSER Fund Certification and Agreement
application. The $1,647,306,127 grant award will be used to give much needed relief to
our students, families, and schools.
The current public health crisis is unprecedented in scale and scope. We look forward to
working with your staff to ensure that California’s future needs can be addressed.
If additional information regarding this request is needed, please contact Joseph Saenz,
Federal Policy Liaison, Government Affairs Division, by telephone at 916-591-6391 or
by email at jsaenz@cde.ca.gov.
Sincerely,
California State Board of Education
Linda Darling-Hammond, State Board President
1430 N Street, Room 5111, Sacramento, CA 95814
916-319-0827
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 52 of 355
April 28, 2020
Page 2
Tony Thurmond
State Superintendent of Public Instruction
California Department of Education
Linda Darling-Hammond
President
California State Board of Education
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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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF JOHANNA
Vv. HOFFMANN
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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/9dueS5c/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 Acct 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.'! 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
'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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is true and correct. This Declaration was executed this 16th day of July, 2020 in Oakland,
Strategit Resource Planning Specialist
Oakland Unified School District
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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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF NIKKI STEWART
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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 lis 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.' 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.
'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-A greement-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 15th day of July, 2020, at Washington, DC
Nikki Stewart
Assistant Superintendent
Division of Systems and Supports, K-12
Office of the State Superintendent of Education
District of Columbia
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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 2 of | 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:
e A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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: District of Columbia CFDA Number: 84.425D
Legal Name: Office of the State Superintendent of} DUNS Number: 603893657
Chief State School Officer: Mailing Address:
Hanseul Kang 1050 First St. NE, Washington DC 20002
State Contact for Elementary and Secondary School Emergency Relief Fund: y14; Stewart
Position and Office: Assistant Superintendent, Systems and Supports, K-12
Mailing Address: 1050 First St. NE, Washington, DC 20002
Telephone:
(202) 899-6142
Email address:
nikki.stewart@dc.gov
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:
Hanseul Kang (202) 355-8088
| Signature of Chief State School Officer or Authorized Representative: Date:
05/06/2020
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
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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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
The SEA and each LEA and any other entity that recetves ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
2
10.
11.
12.
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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.
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.
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.
The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
e 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
e An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
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 (11) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within | year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Signature: Date:
Nana Kang 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:
e How the LEA will determine its most important educational needs as a result of COVID-
19.
e The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
e The extent to which the LEA intends to use ESSER funds to promote remote learning.
e 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).
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:
e 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
e 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.
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.
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.
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).
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.
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.
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:
Nanak Kang 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:
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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.) (“SIDEA’’), 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 | 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) INGENERAL.—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
(111) 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
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration?
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 27,142,294 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
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation Administration*
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 17,976,424 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.
* With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF WANELLE
Vv. KANESHIRO-ERDMANN
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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.
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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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11. | The COVID-19 pandemic has required the diversion of resources to support
statewide remote distance learning, an unanticipated additional cost.
12. Asaresult 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.! 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.
'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-A greement-2.pdf.
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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.].
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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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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“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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The Department’s Rule Significantly Harms Hawaii’s K-12 Students
32. The Department’s Guidance and Rule will result in less funding being distributed to
public K-12 schools in Hawaii.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this 1 day of July, 2020
Wanelle Kanesniro-Erdmann
Director
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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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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 4 of | 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:
e¢ Acompleted cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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: Hawaii CFDA Number: 84.425D
Legal Name: Hawaii State Department of Educatig) DUNS Number: 309935513
Chief State School Officer: Mailing Address:
Dr. Christina M. Kishimoto P.O. Box 2360; Honolulu, HI 96804
State Contact for Elementary and Secondary School Emergency Relief Fund: Brian Hallet
Position and Office: Interim Assistant Superintendent and Chief Financial Officer, Office of Fiscal Services
Honolulu, HI 96804
Telephone:
(808) 586-3737
Email address:
brian.hallett@k12.hi.us
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 seg.; 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:
Dr. Christina M. Kishimoto (808) 784-6161
Signature of Chief State School Officer or Authorized Representative: Date:
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 113 of 355
PART B: PROGRAMMATIC, FISCAL, AND REPORTING ASSURANCES
The [Chief State School Officer or his/her authorized representative] assures the following:
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. .
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
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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11.
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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.
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.
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.
The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
e 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
e An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
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 | year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Date:
05/13/2020
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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:
I,
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:
e How the LEA will determine its most important educational needs as a result of COVID-
19.
e The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
e The extent to which the LEA intends to use ESSER funds to promote remote learning.
e 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).
As a unitary State Educational Agency (SEA) and Local Educational Agency (LEA), the Hawaii State Department
of Education (HIDOE) intends to use the grant received under the Elementary and Secondary School Emergency
Relief (ESSER) Fund to continue to provide educational services to all public and public charter school students
statewide through targeted strategies that will mitigate the disruptive impact of the COVID-19 pandemic on
educational programming and equitable access.
As an island state, one of our greatest challenges during the current COVID-19 pandemic has been providing
enhanced learning activities for all students, particularly those who belong to a disadvantaged population or live in a
remote area. HIDOE will leverage the funds received through this grant to ensure equity in access. HIDOE will
provide (1) a robust statewide Summer 2020 learning program with learning opportunities for remediation,
intervention, credit advancement, credit recovery, and access to early college credits; (2) an online learning
management system statewide for blended and online learning, utilizing our recently-adopted Google suite to serve
as an instructional tool for educators to employ a breadth of online courses that integrates opportunities for project-
based learning, collaboration, and demonstrations for students whether schools continue to be closed or are reopened
for in-class instruction; (3) devices and computer-based programs appropriate for our economically-disadvantaged
students, Native Hawaiian students, English learners, students who are homeless, and students with disabilities
(including assistive technology, adaptive equipment, and programs in the Hawaiian language); (4) better internet
access to students in rural and remote areas; (5) training for parents and caregivers on how to support their child
with distance learning; (6) professional development for educators on differentiated instructional strategies,
including project-based designs through effective uses of technology, using asynchronous and synchronous distance
learning approaches for educators and students; and (7) an internship program to allow high school students whose
Career and Technical Education (CTE) coursework was disrupted due to the school closure an opportunity to obtain
and refine their skills in a work-based setting to earn CTE and other applied learning career readiness credits and,
for students who graduate on time but need career advice, to transition into college or the workplace.
This grant will also allow HIDOE to provide outreach and deliver services, such as mental health and other
wraparound services, to our vulnerable students during the school closures to ensure these students are able to
participate in the educational activities provided.
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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:
¢ 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
¢ 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.
As an SEA-LEA, HIDOE will use the funds received from the ESSER Fund to support
statewide efforts to provide effective distance learning programs and to ensure access to
education for all students enrolled in our public and public charter schools.
This grant will support the reopening of schools and HIDOE’s transition to School Year
2020-2021, including the assessment of students as they return. HIDOE’s intention is to
protect the 180 days of instruction for School Year 2020-2021 by establishing the programs
and infrastructure needed to provide uninterrupted educational services.
Finally, this grant will support HIDOE’s efforts to coordinate with other state agencies,
including the Hawaii State Department of Health and the Hawaii Emergency Management
Agency, to ensure the health and safety of HIDOE’s students, employees, and communities.
This includes ensuring HIDOE has adequate cleaning supplies, personal protective
equipment, and other materials and supplies needed to comply with the Centers for Disease
Control and Prevention guidance as HIDOE prepares for the reopening of school facilities.
HIDOE will continue to provide equitable services to students and staff in non-public
schools.
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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:
—_ 05/13/2020
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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:
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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) INGENERAL.—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
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration”
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
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
1]
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 123 of 355
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation Administration‘
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.
* With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to of | percent of the total allocation for administrative costs.
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DAVID Y. IGE
DR. CHRISTINA M. KISHIMOTO
GOVERNOR
SUPERINTENDENT
STATE OF HAWAT'I
DEPARTMENT OF EDUCATION
P.O. BOX 2360
HONOLULU, HAWAI'I 96804
OFFICE OF THE SUPERINTENDENT
May 13, 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 the assistance from the United States Department of Education during
this unprecedented national crisis caused by the Coronavirus Disease 2019 (COVID-19).
Attached you will find Hawaii’s Certification and Agreement for Funding under the Education
Stabilization Fund Program Elementary and Secondary School Emergency Relief Fund.
Thank you very much for your consideration.
Sincerely,
—
Dr. Christina M. Kishimoto
Superintendent
CMK:wk
Attachment: Certification and Agreement for Funding under the Education Stabilization
Fund Program Elementary and Secondary School Emergency Relief Fund
AN AFFIRMATIVE ACTION AND EQUAL OPPORTUNITY EMPLOYER
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 125 of 355
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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF A. PENDER MAKIN
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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DECLARATION OF A. PENDER MAKIN
I, A. Pender Makin, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
1. I am the Commissioner of Education for the State of Maine. My office is located
at the Maine Department of Education in Augusta, Maine. My educational background includes a
Master’s Degree in Education Leadership. I have been employed as Commissioner since J anuary
2019. Prior to becoming Commissioner, I served as the Assistant Superintendent of Schools in
Brunswick, Maine. My responsibilities included: management of federal programs, McKinney-
Vento liaison, districtwide emergency preparedness and response planning, budget development,
and policy development with the local school board. From 2003-2015, I served as principal of a
regional special education secondary school.
Za Section 251-A of Title 20-A of the Maine Revised Statutes describes the duties and
responsibilities of the Commissioner as follows:
The commissioner is the chief executive officer of the department [of
Education]. In that capacity, the commissioner has primary responsibility for
the following:
1. Enforcing regulatory requirements. Enforcing applicable regulatory
requirements for school administrative units;
2. Providing technical assistance. Providing technical assistance to
school administrative units; and
3. Providing educational leadership. Providing educational public
leadership for the State.
Among the Commissioner’s specific duties, the Commissioner determines the amount of
state funding for Maine’s school administrative units through the Essential Programs and
Services Funding Act, 20-A M.R.S. § 15670 et seg. The Commissioner is responsible for
the distribution of funds to Maine’s school administrative units (SAUs) and for the
oversight of the federal grants that the Department receives.
3; I submit this Declaration in support of the State of Maine’s litigation against
Elisabeth D. DeVos, in her official capacity as Secretary of Education, and the United States
Declaration of A. Pender Makin (3:20-cv-04478-SK)
N
oma NY Dn vn F&F W
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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 Maine
Department of Education 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
Maine Department of Education and public schools in Maine.
Public Education in Maine
4, The Constitution of Maine states, in pertinent part:
A general diffusion of the advantages of education being essential to the
preservation of the rights and liberties of the people: to promote this
important object, the Legislature are authorized, and it shall be their duty to
require, the several towns to make suitable provision, at their own expense,
for the support and maintenance of public schools: . . .
Me. Const. Art. VIII, pt.1, 1.
a “Tt is the intent of the Legislature that every person within the age limitations
prescribed by state statutes shall be provided an opportunity to receive the benefits of a free
public education.” 20-A M.R.S. § 2(1).
6. The purpose of the Department of Education is to
1. Supervise public education. Supervise, guide and plan for a
coordinated system of public education for all citizens of the State... :
2. Interrelation with other programs. Interrelate public education with
other social, economic, physical and governmental activities, programs and
services; and
4. Advancement of education. Encourage and stimulate public interest
in the advancement of education.
i. The Department of Education’s role includes approving, regulating, and
overseeing public schools as well as certain private schools, developing state curriculum
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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 129 of 355
standards, certifying educators, providing guidance and technical assistance to school
administrative units, applying for and managing federal grants, overseeing the implementation of
federal educational programs, collecting and analyzing data, administering student support
programs, and distributing state education funding.
8. Despite the constitutional delegation of funding responsibility to the “several
towns,” and separate from any federal funding, the State of Maine provides more than $1.2 billion
each year to its 265 school administrative units (including charter schools) (SAUs) and two state
magnet schools. The 599 school buildings in these SAUs educate 175,621 students each year.
9. During the 2019-2020 school year, $49,616,687 of Title I-A funds were allocated
to 192 LEAs in Maine. There were 290 Title I schools.
10. During the 2019-2020 school year, 19 private schools within Title I-A LEAs were
eligible for Title I-A equitable services in the amount of $267,392.
Effects of the COVID-19 Pandemic on Education in Maine
11. The COVID-19 pandemic has drastically impacted K-12 education in Maine.
12. The Maine Department of Education immediately mobilized to provide technical
assistance and professional development to educators across Maine to help support the shift to
remote learning beginning the week of March 16, 2020 in all the content areas of Maine’s
Learning Results as well as in trauma informed instruction. The Department deployed our School
Safety Center to coordinate emergency supports.
13. Maine’s SAUs have been providing remote instruction since March. The Department
has developed the Maine Schools Reintegration Framework to provide guidance as schools prepare
for the 2020-2021 school year. This was a collaborative partnership with education leaders across the
state, is a work in progress and will be refined as the group gains a sense of the data metrics that will
need to be examined by school leaders in each of the regions of the state. The Department foresees
SAUs using multiple methods of instruction in the fall, including in-person instruction and remote
instruction. The ultimate decisions about what methods of instruction will be used will be made locally
by each SAU.
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14. Maine SAUs continue to examine and explore innovative approaches to supporting
students eligible to receive Title I-A interventions. Due to the rural nature of the State of Maine
(more than 64% of Maine students live in rural areas), general best-practice strategies for small and
individualized instruction may be limited due to connectivity, accessibility, and capacity of available
staff. Due to concerns surrounding the safety of in-person instruction over the summer, traditional
Title I-A summer programs have either transitioned to a remote model, or, as schools prepare for the
fall, summer programs have not been implemented. This may further impact “summer slide” and a
student’s academic performance. This will have a significant impact on instruction in the fall as
educators navigate supporting students with increased learning loss as a result of the pandemic and
loss of summer programming.
15. Through stakeholder feedback the Department determined that lack of internet
connectivity was the most significant barrier for students to access remote, online learning
opportunities during the suspension of classroom-based instruction. With $ 9.2 million in GEER
funds, the Department has met the connectivity needs of 84 percent of public schools (23,805
students). The Department's intent is to address 100% of the needs in the state. SAUs are
applying for ESSER funds at this time and are including supplies for increasing their capacity for
distance learning and health and safety measures for in person instruction, not knowing what the
school landscape may look like during the next school year.
16. As the Department looks to the future we realize there are significant COVID-
related expenses that will continue to occur: increased costs for child nutrition staff which are not
fully offset by program revenue; unexpected and costly PPE and tools to ensure social
distancing for students, staff, and visiting community members; increased costs for professional
learning for teachers and supplies for staff members to adapt to new instructional modalities;
addressing staffing shortages and the costs for substitutes and long-term substitutes; and
additional support for before and aftercare.
17. As the result of work done by Department staff as well as the Maine Center for
Disease Control, and in order to address the many components of the CDC guidance, it is estimated
that it will cost an additional $327 million to reopen Maine’s public schools.
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CARES Act Funds Received by Maine for K-12 Education
A. Elemen and Secondary School Emergency Relief (ESSER) Funds
18. In order to receive the ESSER funds designated for Maine and as required by the
Department, the Maine Department of Education 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 Maine Department of Education and submitted to the
Department is attached hereto as Exhibit A.
19. Within this Certification and Agreement, the Maine Department 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.
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.]
"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,savailable at
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20. At the time that the Maine Department of Education executed the Certification and
Agreement form, the Department had not yet published its Guidance Document or the Rule.
Accordingly, the Maine Department of Education was unaware that the Department would
subsequently issue guidance or rules to change the required proportional share calculation for
equitable services required under the CARES Acct and the private school students eligible to receive
equitable services under the CARES Act.
21. The Department distributed 91% of the funds received, or $43,793,319, from the
ESSER Fund to the Maine Department of Education on April 29, 2020.
22. | Of the ESSER funds received by the Maine Department of Education, the Maine
Department of Education intends to retain $3,941,398 as permitted by the CARES Act to be utilized
for administration and State Reserve to be used for the Maine Online Opportunities for Sustained
Education (MOOSE).
23. The Maine Department of Education developed an online electronic application
for ESSER funds to be submitted on a rolling basis by the school administrative units. The
Department approved the first applications and began distributing the money on June 4, 2020 and
the Department’s ESSER team is reviewing the applications on a daily basis and approving them
as quickly as possible. Upon approval a GAN is sent to the SAU.
24. To date, the Maine Department of Education has distributed $1 1,560,354 to 51
eligible LEAs within Maine which represents 29% of LEAs eli gible to receive ESSER funds.
25. Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), LEAs in Maine would reserve $248,000 in
ESSER funds to provide equitable services to private school students.
26. However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, LEAs in Maine would reserve $ 2.1 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 Maine would
have access to an additional $1 »852,000, and public schools would lose this same amount of
funds. .
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The Department’s Rule Significantly Harms the Maine Department of Education
27. For every dollar that is diverted from public schools as a result of the
Department’s Guidance Document and Rule, the Maine Department of Education will attempt to
backfill these dollars in the SAUs budgets or, at a minimum, identify additional funds to assist all
SAUs to ensure they have the appropriate resources in place to provide instruction in the fall.
28. Even if every LEA in Maine followed Option #1 (Title I-schools only Option) in
proportioning the CARES Act funds for equitable services, the Maine Department of Education
will attempt to identify and/or provide funding to the 223 non-Title I schools in Maine that were
expecting to receive CARES Act funds. In addition, the Department will attempt to identify or
provide 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.
29. This increase in funding for public schools will be required immediately. As
Maine remains in the throes of the pandemic, public schools remain desperate for funding as they
continue to transition to remote learning and prepare for the 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 additional staff will have
to be hired due to limitations on class sizes and to cover for staff who are unable to return to in
person instruction or who contract the disease. The costs of reacting to this pandemic are drastic
for public schools and without the funds the CARES Act was intended to provide, the Maine
Department of Education must immediately assist Maine’s school administrative units to adjust to
the new realities presented by the pandemic.
30. Beyond the additional funding that Maine 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 the Maine Department of Education.
31. The Department’s ESSER team prepared the electronic application and worked with
the software developer to put it online in less than a week. The team offered three full weeks of
daily ESSER Office Hours to articulate the allowable use of these funds and to answer questions,
which were then posted as FAQs on the Department’s COVID web page. For the first four weeks
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of this work the Department would estimate that at least four staff members each spent over 40
hours per week on this work. Reviewing applications has taken at least four staff members 10-12
hours each, each week.
32. As the Department staff endeavored to consider how to address the equitable
services, multiple runs of the scenarios were undertaken by program and data staff, which took
time away from other pandemic-related work.
33. | The Maine Department of Education staff developed a detailed monitoring Master
Protocol on the State and local levels, as well as refining the risk assessment protocols to
determine the threshold for desk or onsite monitoring. All of these will need to be modified based
on any impacts the Rule will have on these requirements.
34. If Maine’s SAUs are forced to follow the Rule/Guidance, the Department’s
monitoring burden will increase. Both Option #1 and Option #2 will cause additional schools to
be included in the monitoring process, and Option #1 will cause schools that have previously
been receivers to be disqualified, requiring a heightened level of review to ensure that only
eligible schools participate. The additional requirements of the Rule and the inclusion of private
schools that are unfamiliar with the federal grant requirements will require a greater level of
review of compliance documentation relating to reimbursement requests.
35. After the Department of Education provided guidance to the field that school
administrative units should follow the language of the CARES Act, and not the Department’s
Guidance, Maine’s Governor, the Commissioner, and the Department of Education all received
complaints alleging that the Department and the school administrative units were not acting
legally by not following the Guidance. The Commissioner, Department staff, and the
ombudsman under ESSA have had to respond to these complaints. In addition, after the Rule was
announced, a complainant filed a second complaint demanding that the Commissioner follow the
Rule, even though the Rule specifically places the decision between Option #1 and Option #2 on
the SAUs.
36. Finally, the Department’s Guidance Document and Rule place the Maine Department
of Education in legal jeopardy. The Maine Department of Education was required to certify in its
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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, the Maine
Department of Education (and its LEAs) cannot satisfy both the Rule and the CARES Acct.
Accordingly, the Department’s Rule forces the Maine Department of Education to violate Section
18005 of the CARES Act, placing the Maine Department of Education in breach of the certification
in the Certification and Agreement and subjecting the Maine Department of Education “liability
under the False Claims Act, . . . [and the] OMB Guidelines to agencies on Governmentwide
Debarment and Suspension (Nonprocurement).” (Ex. A at p. 1.)
37. As the LEAs in Maine need to use the ESSER funds as soon as possible to assist
with the numerous pandemic-related challenges, this legal jeopardy will impact the Maine
Department of Education immediately.
The Department’s Rule Significantly Harms the Maine’s K-12 Students
38. | The Guidance delayed the roll out of the online electronic application for ESSER
funds by over two weeks while the ESSER Team conferred with legal counsel and the
Commissioner as to the position that the Maine Department of Education would take. This
delayed the ability of the school administrative units to be approved for expenditures already
incurred as of March 13, 2020. The Rule complicates the application process currently underway
and the Department’s ability to advise the school administrative units going forward.
39. The Department’s Guidance Document and Rule will result in less funding being
distributed to public K-12 schools in Maine.
40. If Maine’s SAUs 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 Maine, there are approximately 223 non-Title I schools in LEAs
that are eligible to receive CARES Act funds that would not receive any funding. Like all
schools in Maine, these schools are equally impacted by the COVID-19 pandemic and would
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greatly benefit from the influx of CARES Act funds to assist them through the pandemic. In
addition, there are approximately 290 Title I schools in Maine 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.
41. If LEAs in Maine calculate the proportional share of CARES Act funds for private
school students under Option #2 in the Rule, approximately $1,852,000 will be diverted from public
schools to private school students, which represents 4.7 % of Maine’s total CARES Act funding for
education.
a. In Portland, Maine’s largest city, following the Rule/Guidance would cause 18%
of Portland’s ESSER money to flow to private school students ($346,373 of
$1,924,299),
b. In tiny, rural East Machias, following the Rule/Guidance would divert 70% of
East Machias’ ESSER money to students at a large private secondary school
($38,828 of $51,110).
42. Regardless of how SAUs proportion the CARES Act funds in Maine, the Rule
requires that all private school students receive equitable services. In Maine, during the 2019-2020
school year, approximately 250 private school students in 19 private schools 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 250 private school students received equitable services under Title I-A last year will
receive decreased funding and services as the CARES Act funds proportioned for equitable services
will be spread amongst all private school students.
43. The Rule will place additional administrative burdens on Maine’s SAUs. They will
need to consult with additional private schools in their geographic area. They will have to provide
technical assistance and administer the provision of services for private schools that may not have
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ever received services under ESEA or IDEA. They will have to track and monitor the distribution
of funds and services across additional private schools. Finally, if they choose Option #1, they will
need to carefully document how the funding is distributed in Title I schools only and not used to
supplant, rather than supplement.
I declare under penalty of perjury under the laws of the United States and the State of California
that the foregoing is true and correct and of my own personal knowledge.
Executed on this (ot day of “3 aly ,20je at 6° 1% ~*~ Dreule . Maine
AC L hone
A. Pender Makin
Commissioner of Education
Maine Department of Education
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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 2 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:
e A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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: Maine CFDA Number: 84.425D
Legal Name: Maine Department of Education DUNS Number: 809045545
Chief State School Officer: Mailing Address:
Pender Makin, Commissioner Me. Dept. of Education, 23 SHS, Augusta, ME 04333
State Contact for Elementary and Secondary School Emergency Relief Fund: Chelsey Fortin
Position and Office: Director of Policy & Government Affairs
Mailing Address: . .
e Maine Department of Education
23 State House Station
Anousta MF 04333-0093
Telephone:
(207) 446-2503
Email address: chesley.a.fortin@maine.gov
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 seg.; 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:
Pender Makin (207) 446-6847
| Signature of Chief State School Officer or Authorized Representative: Date:
Pender Makin eee eee 04/24/2020
Date: 2020.04.24 18:48:05 -04'00'
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
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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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
The SEA and each LEA and any other entity that recetves ESSER funds will, to the greatest
extent practicable, continue to compensate its employees and contractors during the period of
2
10.
11.
12.
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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.
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.
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.
The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
e 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
e An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
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 (1) 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.
The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within | year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Signature: Date:
Pender Makin ze 4/24/2020
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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. For example, an SEA might propose to include the following in developing its subgrant
application:
e How the LEA will determine its most important educational needs as a result of COVID-
19.
e The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
e The extent to which the LEA intends to use ESSER funds to promote remote learning.
e 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).
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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:
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
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.
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.
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).
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.
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.
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:
Pender Makin 04/24/2020
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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:
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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) INGENERAL.—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—
(1) the name of the project or activity;
(11) 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
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration?
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 27,142,294 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
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation Administration*
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 17,976,424 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 % of | percent of the total allocation for administrative costs.
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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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF KAREN B.
V. SALMON, PH.D.
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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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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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9. 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 US.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 Acct.
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 17 day of July, 2020
Karen B. Salmon
State Superintendent of Schools
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Declaration of Karen B. Salmon (3:20-cv-04478-SK)
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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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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 2 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:
e Acompleted cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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: DUNS Number:
Maryland State Department of Education 001969443
Chief State School Officer: Mailing Address:
Karen B. Salmon, Ph.D. 200 West Baltimore Street
Baltimore, Maryland 21201
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
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:
; Kt, Coleen fab April 24, 2020
f .
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
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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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
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
10.
11.
12.
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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.
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.
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.
The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
e 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
e An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
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.
The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within | year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Karen B. Salmon, Ph.D.
Signature: 4 d 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).
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:
e 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
e 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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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:
e Internet Access
e Devices for students and staff
e Security upgrades
e Learning Management System upgrades, new content
e Professional Development for teachers and staff
e Outreach and communication to families, technology training
e Expanded Summer Learning Programs
e Compensatory services for students with disabilities
e Academic Intervention programs
e 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.
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.
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).
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.
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.
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: hap 4 ¢ 2 Ad | Date: April 24, 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:
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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 | 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) INGENERAL.—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
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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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
(111) 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.
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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APPENDIX B: STATE ALLOCATION TABLE
Elementary and Secondary School Emergency Relief Fund
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration?
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
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation 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.
* With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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EXHIBIT 8
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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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF DR. MONICA E.
V. GOLDSON
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
\o
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DECLARATION OF DR. MONICA E. GOLDSON
I, Dr. Monica E. Goldson, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true
and correct:
he I am the Chief Executive Officer of Prince George’s County Public Schools
(PGCPS) located in the state of Maryland. My educational background includes a bachelor’s
degree in Mathematics from Florida A&M University, a master’s degree in Elementary and
Secondary School Administration from Bowie State University, and a doctorate in Educational
Administration and Policy from Howard University. I have been employed as Chief Executive
Officer since July 1, 2019. Prior to becoming Chief Executive Officer, I most recently served as
Interim Chief Executive Officer and Deputy Superintendent of Teaching and Learning. However,
as a product of the county schools, I have spent my entire career in PGCPS, starting as a
mathematics teacher and steadily climbing the ranks from the classroom to district leadership as
Assistant Principal, Principal, Associate Superintendent for High Schools, and Chief Operating
Officer to the preceding roles noted above.
2: PGCPS is one of the nation’s 25 largest school districts and the second largest
school district in Maryland, with 208 schools and centers, nearly 136,000 students and 19,000
employees. The school system serves a diverse student population from urban, suburban and rural
communities located in the Washington, D.C. suburbs. PGCPS is nationally recognized for
innovative programs and initiatives that provide students with unique learning opportunities,
including arts integration, environmental and financial literacy, and language immersion.
sf I submit this Declaration in support of the State of Maryland’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 PGCPS personnel who have assisted me in
gathering this information from our institution and on the basis of documents that have been
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provided to and/or reviewed by me. I have also familiarized myself with the Rule in order to
understand its immediate impact on PGCPS and public schools in Maryland.
Background - Maryland Public Schools
4. Article VIII, Section 1, of the Maryland Constitution mandates that the General
Assembly “shall by Law establish throughout the State a thorough and efficient System of Free
Public Schools; and shall provide by taxation, or otherwise, for their maintenance.” The authority
of the Maryland State Board of Education is broadly set forth in Maryland Code, Education
Article section 2-205. Courts have consistently found over a century of case precedents that
Section 2-205 confers comprehensive “visitatorial power” upon the State Board of Education.
See, e.g., Bd. of Educ. of Heister, 392 Md. 140 (2006) (citing Wiley v. School Comm'rs, 51 Md.
401 (1879)).
2: The State Board of Education oversees the Maryland State Department of
Education (MSDE), a principal department of State government established by statute for the
purpose of exercising “authority over: (1) Matters of elementary and secondary education that
affect this State; and (2) The general care and supervision of public elementary and secondary
education.” Md. Code Ann., Ed. Art. sec. 2-101 and 2-106. The State Superintendent of Schools
is appointed by the State Board of Education to oversee the administration of MSDE and has the
powers provided in Subtitle 3 of the Education Article. Part of MSDE’s oversight includes
coordinating the pursuit, acquisition, and management of external funds from public and private
sources to support state and local education programming.
6. Maryland aid to local governments for public education exceeds $7 billion for the
fiscal year ending June 30, 2021.
rs The State Board of Education and Maryland State Department of Education
oversee the work of 24 local education agencies (LEAs) or school districts, which together served
over 900,000 students across more than 1,420 public schools for the 2020 school year.
8. All Maryland LEAs received varying levels of Title I-A funding, totaling more
than $221.7 million for FY 2020. PGCPS received an estimated $34.8 million for Title I-A
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funding in FY 2020. Across the state, 423 schools were identified as Title I schools for the 2019-
2020 school year.
Effects of the COVID-19 Pandemic on Education in Prince George’s County
9, The COVID-19 pandemic has drastically impacted K-12 education in Maryland.
Prince George’s County has been disproportionately impacted due to the high rates of infection
and COVID-19 related complications and deaths for thousands of county residents.
10. Asaresult of the pandemic and in accordance with a directive from Governor
Larry Hogan, MSDE implemented a budget and hiring freeze and stopped discretionary purchases
of items or services unrelated to addressing the COVID-19 pandemic. Further, MSDE is subject
to additional budget cuts, along with all state agencies, based on the substantial budget deficit
projected for FY 2021.
i. As a result of the COVID-19 pandemic and orders by the State Superintendent and
State Board of Education, PGCPS schools were shut down from March 16, 2020 to the end of the
academic year. During that time, PGCPS transitioned to a distance learning plan to complete the
academic year with online teaching, lessons broadcast on PGCPS-TYV, and enrichment learning
packets. PGCPS has distributed over 65,000 devices—mostly chromebooks—and given
traditional laptops to staff and some iPads to our youngest students and some special needs
students. We estimate that we will be spending approximately $100,000 per month on Internet
access to support families in need, as we continue to add additional families to Comcast’s Internet
Essentials program and continue to hand out hotspots from Verizon. We are in the process of
reviewing stakeholder feedback and formulating our recovery plan for the start of the 2020-2021
school year to determine whether instruction will resume in school buildings, remain virtual, or
become a combination of both approaches.
12. The Maryland State Board of Education, Maryland State Department of Education,
and State Superintendent have undertaken several efforts to assist LEAs and schools transition to
distance learning, and other pandemic related assistance. Those efforts include the provision of
child care services to essential personnel at more than 3,700 State-funded sites across Maryland;
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supporting student access to nutritious meals with more than 13 million meals served since the
start of school closures; professional development focused on supporting educators to provide
effective distance learning; and waivers from multiple provisions in state regulations governing
academic requirements that cannot reasonably be met during school closures and the pending
pandemic.
13. In May 2020, the Maryland Board of Revenue Estimates projected a $900 million
to $1.1. billion loss in general fund revenues for FY 2020. In addition, the Maryland Board of
Public Works recently approved Governor Larry Hogan’s request to cut $413.17 million from the
state’s FY 2021 budget, which represents a 2% reduction from general fund appropriations. More
than $200 million in additional proposed cuts are scheduled to be considered by the General
Assembly during the 2021 Legislative Session, cuts that will directly impact education and pay
raises for state employees, among other things.
CARES Act Funds Received by PGCPS for K-12 Education
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
14. In order to receive the ESSER funds designated for PGCPS and as required by the
Department and the Maryland State Department of Education, PGCPS executed a Certification
and Agreement form and submitted it to the Maryland State Department of Education on June 12,
2020. A true and correct copy of the Certification and Agreement completed by PGCPS and
submitted to the Maryland State Department of Education is attached hereto as Exhibit A.
15. Within this Certification and Agreement, PGCPS agreed to the following
terms: (1) the local school system (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 Elementary and Secondary Education Act of 1965 (ESEA), as determined through timely
and meaningful consultation with representatives of non-public schools; (2) 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; (3) the LSS will ensure that a public agency will have
title to materials, equipment, and property purchased with ESSER funds; and (4) the LSS will
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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.
16. At the time that PGCPS executed the Certification and Agreement form, the
Department had not yet published its Guidance Document or the Rule. Accordingly, neither
PGCPS nor the Maryland State Department of Education was aware 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. Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), PGCPS would reserve $1,508,655 in ESSER
funds to provide equitable services to private school students.
18. However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, PGCPS would reserve $2,415,474 in ESSER
funds to provide equitable services to private school students. Thus, under the Department’s
preferred proportional share calculation, private school students in Prince George’s County would
have access to an additional $906,819, and public schools would lose this same amount of funds.
B. Governor’s Emergency Education Relief (GEER) Funds
19. PGCPS anticipates receiving $2,137,208 from the GEER Fund based on the
application submitted to the Maryland State Department of Education on July 10, 2020.
20. Using the proportional share calculation set forth in Section 1117 of the
Elementary and Secondary Education Act (ESEA), PGCPS would reserve $107,363 in GEER
funds to provide equitable services to private school students.
21, However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, PGCPS would reserve $171,897 in GEER funds
to provide equitable services to private school students. Thus, under the Department’s preferred
proportional share calculation, private school students in Prince George’s County would have access
to an additional $64,533, and public schools would lose this same amount of funds.
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The Department’s Rule Significantly Harms Prince George’s County’s K-12 Students
22. The Department’s Guidance and Rule will result in less funding being distributed
to public K-12 schools in Maryland.
23. | PGCPS must calculate the proportional share of CARES Act funds for private
school students under Option #2 in the Rule. As a result, approximately $1.0 million will be
diverted from public schools to private school students.
24. For every $246 diverted from the public 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.
25. For every $91,735 diverted from the public schools, a public-school teacher in
Prince George’s County, Maryland may lose their position and be unable to provide students with
access to learning during the pandemic.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this _/ shay of July, 2020, at 744 fp ny:
Dr. Monica E. Goldsor/
Chief Executive aad
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Exhibit A
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 187 of 355
PROGRAMMATIC, FISCAL, REPORTING, AND OTHER ASSURANCES
. 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.
. 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.
. 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.
. 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 (1) the United
States Department of Education (USDE) and/or its Inspector General; or (11) any other
federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
. 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.
. LSS will submit the full certification, as set forth in 34 C.F.R. Part 82, Appendix A,
upon request.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 188 of 355
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@pegcps.org Contact Phone: (301) 952-6008
Local School System Superintendent (Printed Name): Dr. Monica Goldson
Signature: Date:
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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
. 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:
e Student and staff safety and building readiness
e Continuity of learning
e Access to technology — the need for devices and internet access
e 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 Description of Component
Components
Professional The Continuity of Learning Plan includes an at-a-glance overview for high school,
Development | 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 Description of Component
Components
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 PGCPS designed a website (https://www.pgcps.org/coronavirus/distance-learning/) to
Outreach 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 PGCPS Proposed School
Day Time Allotment 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
6 hours 40 minutes
7 hours 10 minutes
Prince George’s Community College
& Annapolis Road Academy
Alternative High School
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
e 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. Asa 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 Ist 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.
e 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.
e Schools will be asked to respond and indicate their intention to participate for SY21 within
one week of form dissemination.
e 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).
e 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.
e 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.
e 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.
e 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.
e Consultation meetings (virtual unless otherwise communicated) allows the inclusion of
representatives from all participating private schools and PGCPS program staff to be a part
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 197 of 355
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: $75,000
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
Equitable Services | Estimated Equitable Services Set-Aside for Participating $1,508,655
Non-Public Schools | Non-Public Schools
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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 Ist
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.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 200 of 355
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 | 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 | - 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
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:
School Year) Total - 136,000 students x $7.35 per user
$999,600 + Wi-Fi antennas $313,282 = $1,312,882
Wifi Cost Activity Summary:
(This purchase was _| A total of 5,000 hotspots have been purchased. Monthly
made in May 2020) | 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
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
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
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 205 of 355
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 x 1,450 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
19|Page
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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
20|Page
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 207 of 355
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 — $ 914,656
Transfers / 1+rate x rate) $30,031,745 — 467,300 — 1,508,655
/1.0337 x .0337
TOTAL $30,031,745
21|Page
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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.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 210 of 355
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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF GABRIEL C. BACA
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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 Mexico! 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
' 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.”
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 Education?
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
? New Mexico does not maintain a list of names or an accurate count of all of the private
schools within the state.
> To my knowledge, as of July 15, 2020, final decisions regarding GEER funds for New
Mexico have not be made.
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it to the Department on April 30, 2020.* 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
4U.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-A greement-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.°
> 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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their spending of their CARES Act awards as they would need to comply with the supplement,
not supplant requirement in their use of these funds if eligible non-public schools elect to receive
supplemental services.
25. All LEAs that received the CARES Act 90 percent ESSER funds currently have
budget authority for these funds. Because PED moved quickly to make funds available, districts
have already calculated equitable services amounts. PED initially directed districts to follow
Title I methodology in calculating these amounts. PED subsequently issued a memo to districts,
advising them to follow Title I methodology, but allowing them to decide between the Title I
methodology and the methodology in the Department’s Guidance Document. Per the
Department’s Guidance Document, the affected districts will have to recalculate equitable
services amounts for participating private schools, and adjust and/or eliminate CARES Act
budgets for some of their public schools.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this us day of July, 2020, at Ae Uo om Wi D T
{
Gabriel C. Baca
Director
Student, School and Family Support Bureau
New Mexico Public Education Department
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EXHIBIT A
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 221 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 222 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 2 of | 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:
e A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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: New Mexico CFDA Number: 84.425D
Legal Name: New Mexico Public Education Dept. DUNS Number: 808561690
Chief State School Officer: Mailing Address:
Ryan Stewart, Ed.L.D. 300 Don Gaspar, Santa Fe, NM 87501
State Contact for Elementary and Secondary School Emergency Relief Fund: , dan Delgado
Position and Office: Deputy Cabinet Secretary, Finance and Operations
Mailing Address: 300 Don Gaspar, Santa Fe, NM 87501
Telephone:
505-690-5412
Email address:
adan.delgado@state.nm.us
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:
Ryan Stewart, Ed.L.D, New Mexico Secretary of Education 505-795-1009
| Signature of Chief State School Officer or Authorized Representative: Date:
Digitally signed by Ryan Stewart
Ryan Stewa rt Date: 2020.04.30 08:44:40 -04'00' 04/30/2020
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 225 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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
The SEA and each LEA and any other entity that recetves 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 recetving ESSER funds, a report that
will include:
e 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
e 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:
Ryan Stewart Date: 2020 0430 08:45:05 08100 4/30/20
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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:
e How the LEA will determine its most important educational needs as a result of COVID-
19.
e The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
e The extent to which the LEA intends to use ESSER funds to promote remote learning.
e 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).
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.
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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:
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
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.
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:
Closing the Digital Divide (mobile devices, internet connectivity, professional
development for online learning, and related purchases): 60%
Social and Emotional Learning Supports: 19%
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%
PPE, Building Sanitization and Cleaning Supplies: 2%
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.
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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.
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.
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).
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.
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.
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:
Digitally signed by Ryan Stewai
Ryan Stewart Dave: 2020-04 30 08:45:52 02°00 04/30/2020
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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:
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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.) (“SIDEA’’), 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 | 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) INGENERAL.—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
(111) 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
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration?
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 27,142,294 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
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
11
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Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation Administration*
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 17,976,424 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.
* With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF MATTHEW STEM
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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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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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“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.! 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
'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-A greement-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. Ata 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
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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 247 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 2 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:
e A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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
10" Floor
Harrisburg, PA 17126-0333
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
5" Floor 10" Floor
Harrisburg, PA 17126-0333 Harrisburg, PA 17126-0333
717 579-7168 717 439-0623
smccrone@pa.gov adschott@pa.gov
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 seg.; 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
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 250 of 355
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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
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
10.
11.
12.
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any disruptions or closures related to COVID-19 in compliance with Section 18006 of Division
B of the CARES Acct. 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.
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.
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.
The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
e 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
e An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
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 (11) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within | year of receiving such funds.
Chief State School Officer or Authorized Representative: Pedro A. Rivera
Signature: ~ Date: May 4, 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:
e How the LEA will determine its most important educational needs as a result of
COVID- 19.
e The LEA’s proposed timeline for providing services and assistance to students
and staff in both public and non-public schools.
e The extent to which the LEA intends to use ESSER funds to promote remote learning.
e 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:
e Documenting learning loss associated with extended school closure;
e Outlining the development of local continuity of education plans over the course of emergency
response efforts; and
e 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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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.
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:
e 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
e 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:
e 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;
e 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;
e Supporting intensive teacher and school leader professional development on remote
delivery and pedagogy;
e Providing direct resources and technical assistance to close learning and non-
academic gaps stemming from extended school closures;
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Providing direct resources and technical assistance on mental health and trauma-
informed practices, including those with demonstrated efficacy in distance learning
settings;
Identifying and implementing practices that foster remote collaboration among core
content teachers and teachers of students with disabilities and English learners;
Supporting partnerships between LEAs and IHEs to ensure an explicit focus on
remote learning in preservice student teaching experiences; and
Recognizing the role of parents in supporting remote learning through focused family
engagement strategies.
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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.
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.
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).
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.
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.
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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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) INGENERAL.—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.
10
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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
(111) 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
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration?
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
'The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
> With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
12
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Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation Administration*
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.
“With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
12
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EXHIBIT B
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Wd pennsylvania
DEPARTMENT OF EDUCATION
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 Acct 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.
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Document 35-2 Filed 07/20/20 Page 264 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
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 265 of 355
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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF BENJAMIN R.
V. JONES
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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DECLARATION OF BENJAMIN R. JONES
I, Benjamin R. Jones, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true and
correct:
i. I am the Chief Legal Counsel at the Wisconsin Department of Public Instruction
(DPI). My educational background includes a Bachelor of Arts in Political Science and a Juris
Doctor from the University of Wisconsin Law School. I have been employed as Chief Legal
Counsel since January 20, 2019.
2. I oversee the DPI Office of Legal Services which provides legal advice to the
Wisconsin State Superintendent of Public Instruction (“State Superintendent”) and the DPI on all
matters of state and federal law, including administrative rule development, interpretation, and
implementation.
3% I submit this Declaration in support of the State of Wisconsin’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”). [have compiled the information in the
statements set forth below through DPI personnel who have assisted me in gathering this information
from our institution. I have also familiarized myself with the Rule in order to understand its
immediate impact on DPI and public schools in Wisconsin.
Background about Agency’s Work in Education and State’s Education Programs
4. The Wisconsin Constitution requires the state legislature to establish district
schools which are to be “as nearly uniform as practicable” and “free and without charge for
tuition to all children.” Wis. Const. art. X § 3. The supervision of public instruction is vested in
the State Superintendent who is elected on a nonpartisan spring ballot for a term of four years.
The State Superintendent is charged under Wisconsin statutes with the general supervision of
public instruction and leads DPI in implementing policies and promulgating administrative rules.
5. The general duties of the State Superintendent include developing and
disseminating information to the public on all matters relating to preschool, elementary and
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secondary education. Wis. Stat. § 115.28. These duties include making rules to establish
standards of attainment and procedures for the examination and licensing of teachers, reviewing
teacher licensing applications, conducting complaint investigations, and making
recommendations for revocation of licenses if necessary. Responsibilities also include accepting
and administering federal funds, developing and implementing a statewide assessment and
accountability system, which includes publishing annual accountability report cards per state law
and accountability reports under the Elementary and Secondary Education Act of 1965 (“ESEA”).
DPI has staff throughout the agency responsible for meeting data reporting requirements under
state and federal law. In order to meet many of these reporting requirements, the department has
established and implements a WISE data system, which is a data collection system that allows
local educational agencies (LEAs) to submit data to DPI from the student information system
(SIS) vendor of their choice. DPI is responsible for administering the United States Department
of Agriculture (USDA) nutrition programs, Institute of Museum and Library Sciences grants,
Centers for Disease Control Youth Risk Behavior Surveys, the Carl D. Perkins Career and
Technical Education Act, the Individuals with Disabilities Education Act (“IDEA”), and ESEA.
6. In the 2019-2020 school year, DPI administered approximately $6.1 billion in state
support for K-12 public schools; $4.8 billion of that involved general school aids and the
remaining $1.3 billion involved categorical aids and grants for special education, transportation,
class size reduction, and other targeted priorities. Additionally, DPI is responsible for monitoring
compliance with levy limits on $4.4 billion in local school property taxes and administering
penalties as required by law.
7. DPI oversees 443 LEAs, comprised of 517 high schools, 22 junior high schools,
347 middle schools, 1,217 elementary schools, 87 combined elementary and secondary schools,
209 charter schools, and 26 non-district charter schools, with a combined total student enrollment
of 854,959. In the 2018-19 school year, 14% of students were students with disabilities, 6% of
students were English learners, 40.7% of students were considered economically disadvantaged;
69.3% of students were white, 9.1% of students were black or African American, and 12.3% were
Hispanic. In the 2019-20 school year, 435 LEAs in Wisconsin received federal funds under Title
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I, Part A of the ESEA (“Title I-A”), which allocates funding to schools based on the number of
low-income students: 1171 schools received Title I-A funds; and 430,048 students attended
schools receiving Title I-A funds. In the 2019-20 school year, Wisconsin had 809 private schools
located within the boundaries of Title I-A LEAs.
Effects of the COVID-19 Pandemic on Education in the State
8. The COVID-19 pandemic has drastically impacted K-12 education in Wisconsin.
9. Wisconsin closed all schools beginning on March 23, 2020, through the end of the
school year (June 30, 2020). Schools were allowed to continue to provide meals to students as
well as virtual instruction. Local school districts were allowed to designate essential staff to
complete essential government functions. School board meetings were also allowed either
virtually or in-person while following health guidelines.
10. The 421 school districts were each responsible for developing and implementing
their own remote educational program. Each school district and independent charter school has
done the best they can to ensure the safety of their staff and students, based on the resources
available to them. This resulted in a wide variety of remote and virtual learning opportunities.
Without time to prepare, study, test, and revise remote learning models, school districts and
independent charter schools were faced with immense challenges: navigating a regulatory
framework that does not suitably address the circumstances of the current pandemic; providing
students from all socioeconomic backgrounds with equitable access to curriculum; enabling
teachers to deliver curriculum in an entirely different and unfamiliar space; keeping staff safe
while performing essential services; and adjusting policies and procedures to address the needs of
students, families, and local communities.
11. Moving into the next school year, schools will need to evaluate students and
address any learning loss. They will need to determine if additional education is required for
special education students if goals were not met in individualized education plans. They also
need to plan for a very different school year full of new health procedures and multiple health
scenarios. They need to address how they will provide learning if they have to operate in a virtual
environment for part or all of a year for some or all of their students. They need to have back up
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plans in place if they are closed. They need to plan for educational models that fit the unique
situation of the school and evolving health scenarios. Having to plan for all of these unknown
variables and contingencies is extremely taxing on public and private schools.
12. The pandemic has had an even more severe impact on Title I-A LEAs. For
example, three of the four Wisconsin school districts with the highest rates of COVID-19 cases as
of June 2, 2020, were large school districts in Green Bay, Racine and Milwaukee, where 63%,
66% and 82% of the districts’ students, respectively, are economically disadvantaged.
13. DPI has provided guidance and support to districts, requested and has been granted
waivers from the federal government under the ESEA and USDA school nutrition programs, and
has made policy decisions to help support school districts in the provision of educational services
during the health emergency. DPI is also authorized under Wis. Stat. § 118.38 to grant school
districts waivers from certain statutory and regulatory requirements upon request. DPI has
approved school district requests for waivers around the annual minimum number of school
hours, civics test graduation requirement, and educator effectiveness requirements. DPI has
provided policy guidance regarding special education under the IDEA, and policies under state
law related to graduation, attendance, course completion, and grades. DPI has also coordinated
with the Wisconsin Department of Health Services, in providing health-related guidance for
schools. DPI has developed return-to-school guidance to keep students and staff safe, providing
models for school operations, and illustrating best practices around teaching and learning to
address new models of learning and learning losses related to the extended closure. This is a
monumental amount of planning, representing a change to the entire way in which school districts
approach school operations—and it needs to occur in a short timeframe.
14. | COVID-19 is expected to have a significant impact on school district budgets due
to unanticipated costs to: ensure access to virtual instruction for all students, sanitize school
facilities, train teachers and staff for new learning environments, increase transportation capacity
to maintain social distancing, address staff shortages from decisions to self-quarantine, and other
expenditures that are necessary to ensure an environment that is as safe as possible and to provide
learning that is outside the traditional format. These costs, combined with the economic impact
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of COVID-19 on the state of Wisconsin and decreases in state and local government revenues,
will create difficult budget decisions for school districts across the state.
15. Almost all DPI staff have moved to a telework environment. This has caused a
significant shift in agency practices as all school district conferences and support typically done
in person have had to be transitioned to a virtual environment. At the same time, DPI has
reprioritized its time and focus across the agency. DPI created a common website and portal to
receive and respond to questions related to COVID-19. DPI has issued guidance on a nearly daily
basis to address a rapidly changing situation. Statutes and administrative rules that failed to
anticipate this pandemic and its effects continue to create significant challenges for school
operations. DPI has had to create new processes and solutions with stakeholders to effectively
meet the needs of schools. All agency staff and divisions have been affected by COVID-19 and
its implications.
CARES Act Funds Received by Wisconsin for K-12 Education
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
16. In order to receive the ESSER funds designated for Wisconsin and as required by
the Department, DPI executed a Certification and Agreement form and submitted it to the
Department on May 15, 2020.! A true and correct copy of the Certification and Agreement
completed by DPI and submitted to the Department is attached hereto as Exhibit A.
17. Within this Certification and Agreement, Wisconsin 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 Acct,
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
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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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 DPI executed the Certification and Agreement form, the
Department had not yet issued the Rule.
19. The Department distributed $174,777,774 from the ESSER Fund to DPI on May
18, 2020.
20. Of the ESSER funds received by DPI, DPI intends to retain $16,233,474 as
permitted by the CARES Act to provide statewide services, including building capacity for, and
expanding access to, high quality online instructional resources; providing training for educators
in the provision of online and remote instruction; expanding and building capacity of school staff
to provide mental health services to better support students; and to cover administrative costs.
21. Wisconsin will use its federal grants portal, WISEgrants, for LEAs to apply for
and receive ESSER funds. This portal allows LEAs to budget-in allowable categories and serves
as the first level of DPI monitoring of these funds. The process is very similar to the process used
by LEAs to apply for and receive other federal funds, including ESEA Title I, Part A; Title II,
Part A; Title II], Part A; Title IV, Part A; and IDEA.
22. To date, DPI has not distributed any funds to eligible LEAs within Wisconsin.
23. | LEAs are currently preparing grant applications.
24. Using the proportional share calculation set forth in in Title I-A, LEAs in
Wisconsin would reserve approximately $18,739,938 in ESSER funds to provide equitable
services to private school students.
25. However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 in the Rule, LEAs in Wisconsin would reserve
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approximately $21,974,242 in ESSER funds to provide equitable services to private school
students. Thus, under the Department’s preferred proportional share calculation, private school
students in Wisconsin would have access to an additional $3,234,304, and public schools would
lose this same amount of funds.
B. Governor’s Emergency Education Relief (GEER) Funds
26. Wisconsin was awarded $46,550,411 from the GEER Fund on June 1, 2020.
27. The Wisconsin Governor’s Office has determined that LEAs will receive
$46,550,411 from the GEER fund. The Governor’s Office has requested DPI to help distribute
these funds through DPI’s existing systems. Equitable participation applies to these funds
similarly and DPI will make a similar adjustment to these funds to assure the funds are set aside
for equitable participation. When the list of districts is determined, a share will be set aside based
on the number of low-income students. DPI estimates that under the Department’s preferred
proportional share calculation, private school students in Wisconsin would have access to an
additional estimated $950,211.64, and public schools would lose this same amount of funds.
The Department’s Rule Significantly Harms DPI
28. If every LEA in Wisconsin followed Option #1 (Title ]-A-schools only Option) in
proportioning the CARES Act funds for equitable services, the new supplement and not supplant
requirement of Option #1 will create significant confusion among school districts. Prior to
issuing the Rule, the Department had explicitly communicated that supplement and not supplant
rules did not apply to CARES Act funds.2 DPI will have to advise school districts that budgets
developed without this requirement in mind will need to be revamped, and that the flexibility in
how school districts may use these funds to address COVID-19 has been significantly curtailed.
29. As Wisconsin 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
2 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), #20, available at :
https://oese.ed.gov/files/2020/05/ ESSER-Fund-Frequently-Asked-Questions.pdf.
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trained to use remote learning techniques; school buildings must be thoroughly sanitized; and
school districts have to prepare to provide remote learning for students who will not return to
school. The procedures and considerations for districts are many and can be seen in the DPI’s
guidance to school districts.?_ The costs of reacting to this pandemic are drastic for public schools
and without the funds the CARES Act was intended to provide, DPI must immediately assist the
LEAs adjust to the new realities presented by the pandemic.
30. The Department’s Guidance Document and Rule have imposed significant
administrative burdens on DPI: DPI staff have spent over 180 hours publishing a webpage, FAQ
document and guidance on allowable costs, programming WISEgrants, answering questions and
attempting to interpret the Department’s interpretation of the CARES Act and how funds are
meant to be allocated and used. Of that 180 hours, approximately one-third of that time was spent
trying to understand the Department’s guidance and the Rule, resolve conflicts between the Rule
and the CARES Act, and address confusion created by the Rule among stakeholders. DPI
estimates that its staff will dedicate approximately 3,500 hours to administering the ESSER Fund
from July 1, 2020, through September 30, 2020.
31. DPIhas finite staff and resources, and the amount of time necessary to interpret
and address the Department’s guidance and Rule for CARES Act fund allocation has diverted
resources that could be dedicated to the many other priorities created by COVID-19.
32. If the rule applies, DPI would have to develop two monitoring systems, one for
LEAs that chose Option #1 and a separate system for Option #2. Very little of the systems would
be applicable to the other, due to differences in allowable costs and services, so it would require a
very significant amount of additional work. If DPI is required to administer two options for
LEAs to allocate and use ESSER Funds as provided by the Rule, then DPI estimates a substantial
increase—potentially double—in the necessary hours for administering these funds.
33. A number of private schools are refusing to certify that LEAs are providing timely
and meaningful consultation as required by Section 11 17 of Title I-A. Due to the confusion
3 Wisconsin Dep’t of Pub. Instruction, EDUCATION FORWARD, Reopening
Wisconsin’s Schools, available at :
https://dpi.wi.gov/sites/default/files/imce/sspw/pdf/Education Forward web.pdf.
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caused by the Department’s guidance and Rule, several private schools are refusing to certify that
the LEA’s program design is equitable with respect to private school students. A number of other
private schools are refusing to certify LEAs are providing timely and meaningful consultation as
required by Section 1117 of Title I-A.
34. Finally, the Department’s Guidance Document and Rule place DP! in potential
legal jeopardy. DPI was required to certify in its ESSER Fund application that DPI 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, it is hard to see how DPI (and its LEAs) can
seemingly satisfy both the Rule and the CARES Act. Accordingly, the Department’s Rule forces
DPI to effectively violate Section 18005 of the CARES Act, potentially placing DPI at risk of
breaching the certification in the Certification and Agreement and subjecting DPI to “liability
under the False Claims Act, . . . [and the] OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement).” (Ex. A at p. 1.)
35. As the LEAs in Wisconsin need to use the ESSER funds as soon as possible to
assist with the numerous pandemic-related challenges, this legal jeopardy will impact DPI
immediately.
The Department’s Rule Significantly Harms Wisconsin’s K-12 Students
36. Due to the confusion created by the Department’s interpretation of the equitable
service requirements, DPI has needed to take additional time to determine the distribution and use
of funds. This would not have been necessary with clear and lawful guidance from the
Department.
37. The Department’s Guidance and Rule will result in less funding being distributed
to public K-12 schools in Wisconsin.
38. If LEAs in Wisconsin 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
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CARES Act funds will receive no funds. In Wisconsin, there are approximately 1044 non-Title I
public schools in LEAs that are eligible to receive CARES Act funds that would not receive any
funding. Like all public schools in Wisconsin, 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 1171 Title I-A public schools in
Wisconsin that would be limited in their ability to use CARES Act funds to respond to and
prepare for the pandemic, as, per the Department’s Rule, the schools cannot supplant State and
local funding sources. This would significantly impact the Title I-A 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-A schools.
Option #1 also would restrict district-wide activities which may be necessary to respond to this
global pandemic. For example, LEAs may not be able to use these funds to properly clean and
disinfect school buses, if those buses are used to transport students in both Title I-A and non-Title
I-A schools. An LEA would not be able to fund a district-wide, or even grade-level wide,
professional learning on remote instruction if not all schools received Title I-A funds. The
administrative barriers would be increased, and the practical uses of the funds would be
significantly restricted in manners far less than what is explicitly permitted in the statute.
39. If LEAs in Wisconsin calculate the proportional share of CARES Act funds for
private school students under Option #2 in the Rule, approximately $4,184,515.64 of ESSER and
GEER funds will be diverted from public schools to private school students, which represents
roughly 2% of Wisconsin’s total ESSER/GEER fund award. As an example, in Wisconsin’s
second largest school district, the Madison Metropolitan School District, using the proportional
share formula in Title I-A would result in an estimated $121,866 for equitable services. Using the
total enrollment formula would result in an estimate of $621,938, a difference of $500,072, or
9.5% of the total allocation. This would have a major impact.
40. Additionally, for every $78,627 diverted from the public schools (Title I-A or non-
Title I-A schools), a public school teacher in Milwaukee, WI may lose their position and be
unable to provide students with access to learning during the pandemic.
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41. | Regardless of how LEAs proportion the CARES Act funds in Wisconsin, the Rule
requires that all private school students receive equitable services. In Wisconsin, during the
2018-2019 school year, approximately 11,714 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 Rule will
shift funds away from private schools that have higher low-income populations and towards
schools with higher enrollment, but less low-income students. The approximately 11,714 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.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this [Sdhday of July, 2020, at Monona , Wisconsin
Chief Legal Counsel
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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 280 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 % 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:
e Acompleted cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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: Wisconsin CFDA Number: 84.425D
Legal Name: Wisconsin Department of Public Insp DUNS Number: 809611254
Chief State School Officer: Mailing Address:
Carolyn Stanford Taylor 125 S. Webster Street, Madison, WI 53703
State Contact for Elementary and Secondary School Emergency Relief Fund: y.045 zuckerman
Position and Office: Director, Title I
Mailing Address: 15 § Webster Street, Madison, WI 53703
Telephone: 608-267-9136
Email address:
jonas.zuckerman@dpi.wi.gov
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:
Jennifer Kammerud (608) 266-7073
. Signature of Chief State School Officer or Authorized Representative: Date:
. Digitally signed by Jennifer A. Kammerud
Jennifer A. Kammerud pete: 2020.05.15 12:52:28 -05'00 05/15/2020
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
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PART B: PROGRAMMATIC, FISCAL, AND REPORTING ASSURANCES
The [Chief State School Officer or his/her authorized representative] assures the following:
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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
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:
e 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
e 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:
Jennifer A. Kammerud naan 05/15/2020
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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:
e How the LEA will determine its most important educational needs as a result of COVID-
19.
e The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
The extent to which the LEA intends to use ESSER funds to promote remote learning.
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).
See response on attached.
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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:
e 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
e 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.
See response on attached.
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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:
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.
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.
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).
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.
. 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.
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:
Jennifer A. Kammerud erg esata omer rg mas 05/15/2020
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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:
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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 | 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) INGENERAL.—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.
10
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APPENDIX B: STATE ALLOCATION TABLE
Elementary and Secondary School Emergency Relief Fund
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration”
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
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to 4 of 1 percent of the total allocation for administrative costs.
1]
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Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation Administration‘
OREGON 121,099,019 108,989,117 12,109,902 605,495
PENNSYLVANIA $23,807,198 471,426,478 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.
* With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to 4 of 1 percent of the total allocation for administrative costs.
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WISCONSIN
DEPARTMENT OF
PUBLIC &
INSTRUCT ION Carolyn Stanford Taylor, State Superintendent
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:
e How the LEA will determine its most important educational needs as a result of
COVID19.
e The LEA’s proposed timeline for providing services and assistance to students
and staff in both public and non-public schools.
e The extent to which the LEA intends to use ESSER funds to promote remote
learning.
e 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).
The Wisconsin Department of Public Instruction uses a department-developed federal grants
management system, WISEgrants, which aligns with the 2 CFR 200 Federal Uniform Grant
Guidance, the Education Department’s General Administrative Regulations, and Wisconsin’s
Uniform Financial Accounting Requirements. WISEgrants is developed and managed by
dedicated WDPI staff, so the ability to distribute and monitor ESSER funds will be streamlined
and executed with expediency.
Currently, Wisconsin LEAs have a signed paper copy of GEPA assurances on record with WDPI.
This GEPA assurance was last collected from existing LEAs in SFY 2009-2010. As part of the
WISEgrants ESSER web-based application, WDPI will have electronic versions of the GEPA
assurances digitally signed by district administrators or independent charter school
administrators to ensure that subrecipients have easy access to this document in the future
(from paper to web-based accessibility).
WDPI will provide technical assistance to LEAs regarding the many varied purposes allowed
under the law. WDPI will also provide technical assistance and information on ESSERF set aside
funds to address issues related to supporting remote learning for all students, including
historically underserved populations. LEAs will be made fully aware of the reporting
requirements that will be part of the ESSERF application process.
PO Box 7841, Madison, WI 53707-7841 m 125 South Webster Street, Madison, WI 53703
(608) 266-3390 m (800) 441-4563 toll free m dpi.wi.gov
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 295 of 355
The following will be the ESSERF application steps for eligible Wisconsin subrecipients:
1. Digitally sign assurances that the LEA will comply with the provisions of all applicable
statutes and regulations, including an assurance about maintaining staff to the extent
practicable.
2. Digitally sign a current copy of the assurances that meet the requirements of section
442 of the General Education Provisions Act (GEPA) (20 U.S.C. 1232e).
3. Upload an affirmation of consultation form from each private school located within the
school district’s boundaries confirming or denying their participation in CARES Act
services.
4. Provide a description of the steps the LEA proposes to take to ensure equitable access
to, and participation in, its Federally-assisted program for students, teachers, and other
program beneficiaries who may experience any of these barriers: gender, race, national
origin, color, disability, and age as required under GEPA Section 427.
5. Develop separate budgets, under a single grant, for regular education, special
education and private school equitable services. The WISEgrants web-based budget
software has the capability of:
o Tying each detailed budget item to an allowable activity under Section 18003(d);
including:
|. Preparedness and Response to COVID-19
ll. Outreach & Service Delivery to Special Populations
Ill. | Addressing Long-term School Closure
IV. Educational Technology
V. Mental Health Services and Supports
Vi. Addressing Afterschool and Summer Learning
o Tying detailed budget items to specific private schools served by the LEA.
o Collecting staff FTE to determine the LEA’s need to use federal funds to
continue employing existing staff.
o Tracking carryover amounts for each budget type (regular education, special
education and private school services).
6. Reviewing ESSER applications will be a WDPI priority in order to ensure subrecipients
have expedited access to funds. The staff completing the review will also provide LEAs
with technical assistance on allowable costs.
7. LEAs will be able to claim funds based on DPl-approved applications. Funds will be
claimed by budget type (general education, special education, private school services)
and by allowable ESSER activity.
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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:
e¢ 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
e 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.
WDPI plans to use its SEA reserve monies to assist schools statewide in response to the
COVID-19 pandemic. This plan prioritizes the needs of all students, especially students
most in need who are described in Section 18003(d)(4) of the CARES Act. WDPI was
required under state statutes to get approval for its plan to use CARES Act funds from the
state legislature’s Joint Committee on Finance. The provisions below were part of the
plan submitted related to this application questions. WDPI received approval of our
plan on May 13, 2020.
Building capacity for, and expanding access to, high quality online instructional resources.
WDPI will collaborate with three strategic state partners to support online, blended, and
remote instructional delivery systems. Examples of existing partnerships the department
could build upon include:
e The Wisconsin Digital Learning Collaborative (WDLC). This is a partnership
between WDPI, the Wisconsin Virtual School out of Cooperative Education
Service Agency (CESA) 9, and the eSchools Network, and is Wisconsin’s state-
designated web academy. The WDLC partners currently support over 300 schools
with online and blended courses. They are well-positioned to increase both
leadership capacity for planning around online instruction, and access to online and
blended learning courses for students in grades 6-12.
e TheCESA Instructional Technology Network. The Network will help implement
local training and leadership planning assistance.
e The Institute for Personalized Learning (IPL). A division of CESA 1, the Institute
assists districts in creating and delivering learner-centered, instructional design
principles, and technology-rich learning experiences. The Institute has a wealth of
resources to assist schools in creating blended and digitally rich learning
experiences.
The department plans to focus on providing additional capacity to facilitate access to
online and blended courses and support for schools to build out their own high-quality
online or blended instruction. An additional focus will be placed on areas of need as
expressed by stakeholders. For example, addressing literacy and math needs for any loss
of learning or credit recovery due to the COVID-19 pandemic.
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Providing training for educators in the provision of online and remote instruction.
DPI will work with educator preparation programs to prepare educators for delivering
instruction in online and remote settings. Educator preparation programs almost
exclusively make use of face-to-face, pre-clinical and clinical placements for prospective
teachers. K-12 education in Wisconsin has been primarily delivered in physical
classrooms with teachers present. Thus, teachers are generally not prepared for teaching
in an online or a blended environment as part of their formal training.
Providing extensive training to educators in online and remote teaching techniques
this summer and next fall would help schools prepare to address statewide or localized
school closures during the 2020-21 school year, as well as how to work with students who
are not able to attend school for health reasons.
Additionally, educator preparation programs for School Counselors, School Social
Workers, and School Psychologists typically do not include training on how to provide
teleservices to students. LEAs need recommendations for best practices in implementing
teleservices for K-12 students, as well as training in how to use available technology.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 298 of 355
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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF DR. JANICE K.
V. JACKSON
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 300 of 355
DECLARATION OF DR. JANICE K. JACKSON
I, Dr. Janice K. Jackson, pursuant to 28 U.S.C. § 1746, hereby declare that the following is true
and correct:
is I am the Chief Executive Officer of the Board of Education of the City of Chicago
(referred to herein as “CBOE”) located in Chicago, Illinois. My educational background includes a
Master of Education degree with a field of study in leadership and administration, as well as a
Doctor of Education degree with a field of study in urban education leadership, both from the
University of Illinois at Chicago. Prior to becoming CEO, I was the District’s Chief Education
Officer. I also held positions within CBOE as a network chief, principal, and teacher.
2. The CBOE is the local educational agency (“LEA”) for the City of Chicago.
3. I submit this Declaration in support of the CBOE’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 and through CBOE personnel who have assisted me in gathering
this information from our institution. I have also familiarized myself with the Rule in order to
understand its immediate impact on CBOE and public schools in Chicago.
CBOE’S EDUCATION PROGRAMS
4. The Illinois School Code created the CBOE, also known as City of Chicago School
Dist. #299 or the Chicago Public Schools (“CPS”), and charged it with responsibility for public
schools within the territorial limits of the City of Chicago. The Board currently consists of seven
members who, pursuant to the School Code, 105 ILCS 5/34-3, are appointed by the Mayor of the
City of Chicago. The Board’s CEO is also appointed by the Mayor.
5. CBOE is the third largest school district in the United States, with over 355,000
students at over 600 different schools. Most schools in the district, whether prekindergarten-8th
grade, elementary, middle, or secondary, have attendance boundaries restricting student enrollment
to within a given area. CBOE offers a broad array of alternative educational programs for its
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students, including magnet schools, cluster programs, public military academies, career academies,
and charter schools.
6. Of the approximately 355,000 students served by the Board, about 76% qualify as
economically disadvantaged, almost 19% are English Learners, 3.5% are homeless, and about 15%
have IEPs. Over 46% of the district’s student body is Latino, 36% is African American, 11% is
White, 4% is Asian, and 1.3% is mixed race.
ae To meet its objectives, the CBOE relies upon funds from local, state, and federal
sources. The CBOE’s annual budget for the 2020 school year is $6.9 billion. The CBOE derives
about $3.8 billion of its funding through local sources, while the State of Illinois contributes almost
$2.3 billion, and the federal government provides about $767 million.
8. CPS estimates that it will receive about $245 million in Title I funding for the 2020
school year. Pursuant to Title I, the CBOE designates schools eligible for Title I funding based on
poverty percentages. CBOE uses the same methodology for the entire district. Every school with a
poverty index of 40 or above receives Title I funding, with a few other schools qualifying for Title I
status based on waivers. Overall, about 89% of CPS schools qualify for Title I discretionary
funding.
9. CBOE estimates that it will receive approximately $206 million under the CARES
Act.
10. In the 2019 school year, there were approximately 213 non-public schools in the
territorial limits of the City of Chicago. Out of those schools, about 129 had Title I programs. Non-
public schools are affiliated with one of five different organizations, referred to as their affiliate
representatives: Catholic Archdiocese of Chicago, Chicagoland Lutheran Education Foundation
Association, Independent Schools, Associated Talmud Torahs (ATT), and the Christian Schools.
EFFECTS OF THE COVID-19 PANDEMIC ON EDUCATION IN CHICAGO
11. | The COVID-19 pandemic has drastically impacted K-12 education in Chicago.
12. _Inrresponse to the pandemic, the CBOE curtailed in-person instruction on March 17,
2020. Given CBOE’s student population, CBOE had to take additional steps and incur additional
expenses to ensure all students had access to the technology necessary to participate in remote
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learning. CBOE also had to devote substantial resources to converting its free breakfast and lunch
program to a takeout/delivery model, as 77.9% of CBOE students qualify for free or reduced meals
at school.
13. Early on in the pandemic, CBOE recognized that (1) remote learning was the only
means to safely continue education during the pandemic, and (2) the “digital divide” prevented may
CPS students from partaking in remote learning. CBOE estimates indicated that in excess of
100,000 students did not have digital learning tools necessary to participate in remote learning. In
response, CBOE embarked on an unprecedented and ambitious program to distribute over 100,000
devices to needy students. The Board adopted a plan to ensure that all homeless students received
such a device as well as a 4G LTE internet hotspot. |
14. Since the advent of the pandemic, CBOE also recognized the on-going importance of
nutrition to student learning. Hence, CBOE has offered “Grab and Go” meals at 270 locations
within the City of Chicago. For many low-income residents of the City, these meals are an essential
service. To date, the Board has served over 17.5 million meals.
Ls CBOE also incurred considerable expenses in purchasing personal protective
equipment and conducting rigorous cleansing on all of its facilities, so as to decrease the spread of
COVID-19.
16. | CBOE also incurred expenses for premium pay awarded to the essential workers who
provided services to the most at-risk populations during the pandemic.
17. All told, CBOE expended over $76 million to date on expenses directly related to the
pandemic.
18. CBOE expects to incur additional substantial expenses associated with reopening its
schools in the Fall for the 2020 school year. In particular, CBOE staff have undertaken the process
of designing systems and protocols to be implemented at every school designed to diminish the
chances of COVID-19 transmissions. The Illinois State Board of Education recently published
guidelines to assist Illinois school districts in reopening, and those guidelines include temperature
checks, social distancing to the extent possible, masks, and staff training.
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CARES ACT FUNDS RECEIVED BY CHICAGO FOR K-12 EDUCATION
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
19. In order to receive the ESSER funds designated for Chicago and as required by the
Department (and the Illinois State Board of Education (““ISBE”), Chicago executed a Certification
and Agreement form and submitted it to ISBE on June 29, 2020.' A true and correct copy of the
Program Assurances completed by Chicago and submitted to the ISBE (SEA), as part of the ESSER
Grant application, is attached hereto as Exhibit A. In conjunction with the receipt of ESSER funds
from the Illinois State Board of Education, the CBOE certified as follows:
By checking this box, the applicant hereby certifies that he or she has
read, understood and will comply with the assurances listed below, as
applicable to the program for which funding is requested.
1. Entities that receive Elementary and Secondary Emergency Relief
Funds must provide nonpublic equitable services consistent with Title I,
Part A requirements.
2. Entities that receive Elementary and Secondary Emergency Relief
Funds must retain control of CARES Act funds and items purchased with
such funds for private school.
3. Entities that receive Elementary and Secondary Emergency Relief
Funds can provide equitable services directly or contract with a public or
private entity to do so.
4. Entities that receive Elementary and Secondary Emergency Relief
Funds that choose to use CARES funds for population(s) normally served
in one or more of the following federal programs will comply with
requirements of those programs: ESSA, IDEA, Perkins, McKinney
Vento, and/or Adult Education and Family Literacy.
5. The applicant will cooperate in carrying out any evaluation of the
program conducted by or for the State Educational Agency, the Secretary,
or other Federal officials.
6. The applicant will use such fiscal control and fund accounting
procedures to ensure proper disbursement of, and accounting for, federal
funds paid to the applicant under each such program.
20. Atthe time that Chicago executed the Certification and Agreement form, the
Department had not yet published the Rule. Moreover, it was the understanding within CBOE that
' Upon information and belief, the State of Illinois, as the SEA, executed a Certification
with the U.S. Department of Education. 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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amendments to the Heroes Act could impact the Department’s proposed rule. The CBOE was not
aware 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.
21. Using the proportional share calculation set forth in Section 1117 of the Elementary
and Secondary Education Act (ESEA), the CBOE, as the LEA for Chicago, would reserve $18.5
million 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, CBOE would reserve $28.67 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 Chicago would have access to an
additional $10.17 million, and public schools would lose this same amount of funds.
B. Governor’s Emergency Education Relief (GEER) Funds
23. Chicago has not yet received any GEER Fund revenues for fiscal year 2020.
24. The Governor’s Office is responsible for distributing the GEER funds, and has not
yet advised CBOE about the availability, amount, or proper allocation of those funds.
THE DEPARTMENT’S RULE SIGNIFICANTLY HARMS CHICAGO
25. Inconsidering the harms introduced by the Rule, it bears emphasis that the Rule was
released mere weeks before the beginning of the school year, magnifying the harms described below
because of the haste demanded to adapted to the new, unexpected provisions required by the Rule.
26. For every dollar that is diverted from public schools as a result of the Department’s
Guidance Document and Rule, the CBOE will be required to backfill these dollars in its budget. At a
time when Chicago faces a substantial deficit in its education budget as a result of the pandemic, the
CBOE will be required to find $10 million to fill the budgets of public schools that the CARES Act
funds were intended to fill.
27. Evenif Chicago, as the LEA, followed Option #1 (Title I-schools only Option) in
proportioning the CARES Acct funds for equitable services, about sixty non-Title I schools in
Chicago that were expecting to receive CARES Act funds cannot be funded under the Rule. In
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addition, Chicago will be required to provide significant funding to Title I schools that risk
supplanting violations under Title I if they use the CARES Act funds to supplant their budgets.
28. These shortfalls in funding for public schools in Chicago will be experienced
immediately. As Chicago remains in the throes of the pandemic, public schools remain desperate for
funding as they prepare for next school year. The CBOE is in the process of devising a plan for the
2020 school year that will ensure the safety of staff and students, while also facilitating learning.
That plan will include, amongst other things, personal protective equipment, social distancing, and
some continued remote learning.
29. Beyond the funding shortfalls that Chicago will sustain as a result of the loss of the
intended CARES Act funds, the Department’s Guidance Document and Rule have imposed
significant administrative burdens on Chicago directly at a time those burdens can least be afforded.
30. | The CBOE Budget Director is charged with responsibility for assisting school and
department leaders to maximize and align funds to their programmatic priorities supporting staff,
students, and school communities. The uncertainty in funding levels complicates this mission. In
addition, the staff at the Office of Budgets and Grant Management has dedicated time and resources
to evaluating the Rule and Guidance Document from the U.S. Department of Education, so as to
ensure proper planning and compliance.
31. Staff from the Office of Budgets and Grant Management meet with the affiliated
private schools on a regular basis. The Rule issued by the U.S. Department of Education has created
friction in the CBOE’s relationship with the non-Title I private schools in that the representatives of
those affiliations contend that the CBOE did not engage in timely and meaningful consultation
before the LEA made any decision that affected the equitable participation of eligible private school
children in the CARES Emergency Relief Grant program. These certifications of non-compliance
reference the U.S. Department of Education’s revised equitable share calculation formula.
32. | The Department’s Guidance Document and Rule place Chicago in legal jeopardy.
Chicago was required to certify in its ESSER Fund application that the CBOE will “ensure proper
disbursement of, and accounting for, federal funds... .” (Exh. A). Because the Guidance
Document and the Rule require LEAs to calculate the proportional share for equitable services and
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determine eligibility of private-school students for equitable services contrary to the proportional
share calculation and eligibility requirements in the CARES Act, Chicago cannot satisfy both the
Rule and the CARES Act. Accordingly, the Department’s Rule forces Chicago to violate Section
18005 of the CARES Act. As the CBOE and other Title I schools in Chicago need to use the
ESSER funds as soon as possible to assist with the numerous pandemic-related challenges, this legal
jeopardy will impact Chicago immediately.
THE RULE SIGNIFICANTLY HARMS CHICAGO’S K-12 STUDENTS
33. The Department’s interpretation of the equitable service requirements has injected
delay in the CBOE’s distribution of much needed coronavirus relief funds to schools.
34. | The Department’s Guidance and Rule will result in less funding being distributed to
public K-12 schools in Chicago.
35. IfCBOE, as the LEA in Chicago, calculates the proportional share of CARES Act
funds for private school students under Option #1 of the Rule, 66 non-Title I public schools in
Chicago will receive no funds under the CARES Act. In addition, there are approximately 434 Title
I public schools in Chicago that would risk a supplanting violation under Title I if CBOE uses
CARES Act funds to respond to and prepare for the pandemic as it cannot supplant State and local
funding sources under the Rule.
36. If LEAs in Chicago calculate the proportional share of CARES Act funds for private
school students under Option #2 in the Rule, approximately $10 million will be diverted from public
schools to 84 non-Title I eligible private schools. This diversion of resources represents about 5% of
Chicago’s total CARES Act funding for education.
37. Regardless of how CBOE proportions the CARES Act funds in Chicago, the Rule
requires that all private school students receive equitable services. In Chicago, during the 2019-2020
school year, approximately 17,367 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 17,367 private
school students who received equitable services under Title I-A last year will receive less services as
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the CARES Act funds proportioned for equitable services will be spread amongst all private school
students.
I declare under penalty of perjury under the laws of the United States and State of California that
the foregoing is true and correct.
Executed on this 15" day of July, 2020
2: hicago Board of Education
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EXHIBIT A
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 309 of 355
7/14/2020 Grant Application a
CBOE Exhibit A
[ Close Printer Friendly Page Decl. of Dr. Janice K. Jackson
Applicant: CITY OF CHICAGO SD 299 County: Cook Elementary and Secondary School Emergency Relief Grant v
Application: 2019-2020 Elementary and Secondary
School Emergency Relief Grant - ER
Cycle: Original Application
Click to Return to Application Select
Project Number: 20-4998-ER-15-016-2990-25-
Emergency Relief
Program State ; GATA
Assurances Assurances Debarment Lobbying GEPA_442 Assurances Assurances
Specific Terms of the Grant
By checking this box, the applicant hereby certifies that he or she has read, understood and will comply with
the assurances listed below, as applicable to the program for which funding is requested.
1. Entities that receive Elementary and Secondary Emergency Relief Funds must provide nonpublic
equitable services consistent with Title I, Part A requirements.
2. Entities that receive Elementary and Secondary Emergency Relief Funds must retain control of CARES
Act funds and items purchased with such funds for private school.
3. Entities that receive Elementary and Secondary Emergency Relief Funds can provide equitable services
directly or contract with a public or private entity to do so.
4. Entities that receive Elementary and Secondary Emergency Relief Funds that choose to use CARES
funds for population(s) normally served in one or more of the following federal programs will comply
with requirements of those programs: ESSA, IDEA, Perkins, McKinney Vento, and/or Adult Education
and Family Literacy.
5. The applicant will cooperate in carrying out any evaluation of the program conducted by or for the
State Educational Agency, the Secretary, or other Federal officials.
6. The applicant will use such fiscal control and fund accounting procedures to ensure proper
disbursement of, and accounting for, federal funds paid to the applicant under each such program.
7. The applicant will:
A. submit such reports to the Illinois State Board of Education and the Secretary as the State
Educational Agency and Secretary may require, including quarterly expenditure and performance
reports.
B. maintain such records, provide such information, and afford such access to the records as the
Illinois State Board of Education or the Secretary may reasonably require to carry out the duties of
the State Educational Agency or the Secretary.
8. Any summer school or extended year activities will take place in a safe and easily accessible facility.
The grantee will ensure that any program to be located in a facility other than an elementary or
secondary school is at least as accessible to the students to be served as if the program were located
in an elementary or secondary school.
9. The LEA addresses 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.
10. The 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 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.
11. The uses of funds by the LEAs or other entities demonstrates compliance with Section 18003(d), such
as any use of funds addresses 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.
12. 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
https://apps.isbe.net/eGrant_Web/ApplicationShell.aspx?DisplayName=Program+Assurances 1/2
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7/14/2020 Grant Application
and/or its Inspector General; or (ii) any other federal agency, commission, or department in the lawful
exercise of its jurisdiction and authority.
13. The SEA will ensure that LEAs use ESSER funds for activities allowable under section 18003(d) of
Division B of the CARES Act. 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.
https://apps.isbe.net/eGrant_Web/ApplicationShell.aspx?DisplayName=Program+Assurances
2/2
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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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF ERIC S. GORDON
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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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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.' 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.
'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-A greement-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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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.
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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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I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
Executed on this15th day of July, 2020, at Cleveland, Ohio.
Eric S. Gordon
CEO, Cleveland Municipal School District
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EXHIBIT A
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Ohio Department of Education ESSER Application
to the U.S. Department of Education
May 5, 2020
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 323 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 2 of | 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:
e A completed cover sheet that includes the signature of the Chief State School Officer or
authorized representative. (Part A of the Certification and Agreement)
e Programmatic, fiscal, and reporting assurances. (Part B of the Certification and Agreement)
e Information on the uses of ESSER funds. (Part C of the Certification and Agreement)
e 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: Ohio CFDA Number: 84.425D
Legal Name: Ohio Department of Education DUNS Number: 809174378000
Chief State School Officer: Mailing Address:
Paolo DeMaria 25 S. Front Street, Columbus, Ohio 43215
State Contact for Elementary and Secondary School Emergency Relief Fund: Jeremy Marks
Position and Office: Director, Office of Federal Programs
Mailing Address: 25 S. Front Street
Columbus, Ohio 43215
Telephone:
614-466-4161
Email address:
Jeremy.Marks@education.ohio.gov
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:
Jeremy Marks 614-466-4161
| Signature of Chief State School Officer or Authorized Representative: Date:
Form Approved OMB Number: 1810-0743 Expiration Date: 10/31/2020
Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 326 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.
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.
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.
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.
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.
e 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.
e The SEA will ensure that a public agency will have title to materials, equipment, and
property purchased with ESSER funds.
e 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.
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.
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
10.
11.
12.
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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.
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.
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.
The SEA will submit to the Department, within 60 days of receiving ESSER funds, a report that
will include:
e 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
e An Internal Control and Subrecipient Monitoring Plan to ensure that funds are used for
allowable purposes in accordance with cash management principles.
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 (11) any
other federal agency, commission, or department in the lawful exercise of its jurisdiction and
authority.
The SEA will return to the Secretary any funds received under the ESSER Fund that the SEA
does not award within | year of receiving such funds.
Chief State School Officer or Authorized Representative (Printed Name):
Signature: Date:
ANE VV May 5, 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:
e How the LEA will determine its most important educational needs as a result of COVID-
19.
e The LEA’s proposed timeline for providing services and assistance to students and staff
in both public and non-public schools.
e The extent to which the LEA intends to use ESSER funds to promote remote learning.
e 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).
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.
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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:
e 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
e 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.
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.
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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.
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.
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).
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.
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.
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: \\ Q 4 Date:
(Wa Aen 05/05/2020
v
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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.) (“SIDEA’’), 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 | 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) INGENERAL.—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 334 of 355
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
(111) 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
Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution! Reservation Administration?
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 27,142,294 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
' The totals in the Minimum LEA Distribution, Maximum SEA Reservation, and Maximum for SEA Administration columns have been rounded to the
nearest whole dollar.
? With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | percent of the total allocation for administrative costs.
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Maximum for
STATE Minimum LEA Maximum SEA SEA
STATE TOTAL Distribution? Reservation Administration*
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 17,976,424 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.
* With the funds not subgranted to LEAs, the SEA may reserve up to an amount equal to % of | 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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF LINDSEY OATES
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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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 Acct, “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 /ow-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 Acct 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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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 345 of 355
1} 1 declare under penalty of perjury that, to the’best of my knowledge, the foregoing is true and
2 || correct.
3
4 | Executed on this \2)_ day of July, 2020, at O
5
- Lindsey Oates
CFO, Board of tion for the
8 City School District of the
City of New York
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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 Civil Case No. 3:20-cv-04478-SK
CALIFORNIA, et al.,
Plaintiffs,
DECLARATION OF MEGHAN
V. WALLACE
ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
Defendants.
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I, MEGHAN WALLACE, 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 Chief Financial Officer (“CFO”) at SAN FRANCISCO UNIFIED
SCHOOL DISTRICT (“SFUSD” or the “District’’) located in San Francisco, California. My
educational background includes a Bachelor of Arts in Policy Studies & Environmental Studies
from Dickinson College (2001), and a Master of Public Policy from the University of Maryland
(2007). I have been employed as the CFO of SFUSD since 2019. Prior to becoming SFUSD’s
CFO, I worked for the City & County of San Francisco between 2008 and 2019 serving in several
roles including: Senior Fiscal and Policy Analyst for the Mayor’s Office of Public Policy and
Finance, Budget Manager for the Port of San Francisco, Finance & Procurement Manager for the
Port of San Francisco, and Finance Director for the Port of San Francisco.
3. In my role as the CFO, I am the senior leader in the District responsible for the
overall financial operations of the District, with oversight of the District’s strategic deployment of
financial resources. I play a central role in SFUSD’s effort to plan, organize, and direct business
services, financial services and other activities related to the fiscal health and effective operation
of the District. First, I direct the day-to-day operations and work processes of SFUSD’s Business
Services Division, serving as a critical escalation point for decision and policy-making while
maintaining and moving towards a compelling vision for the Business Services Division. Second,
I design, articulate and execute policies and practices that ensure the responsible and strategic
deployment of financial resources, working inside and outside of the District to understand
SFUSD’s financial landscape within the City & County of San Francisco and the State of
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California. Third, I direct the preparation of SFUSD’s financial reports and ensure appropriate
controls and reporting of grant and contract management activities, manage processes for
financial/budgetary forecasting and provide the District’s lead negotiator with accurate and timely
financial information relative to the collective bargaining process. Fourth, I ensure that effective
internal controls are in place and in compliance with applicable federal, state and local regulatory
laws and rules for financial and tax reporting.
4. I submit this Declaration in support of SFUSD’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 SFUSD 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 SFUSD.
General Overview of District
5. In 2019, SFUSD oversaw an estimated total of 133 schools, including 12 Early
Education, 64 Elementary (TK-5" Grades), 5 County, 13 Middle Schools (6"-8« grades), 14 High
Schools, 14 Charter Schools, and 3 Continuation Schools. SFUSD serves approximately 52,468
students, 41,692 are minorities, 28,556 are socioeconomically disadvantaged, 15,028 are English
Learners, 2,064 are homeless, 6,275 are students with disabilities, and 254 are foster youth.
6. During the 2019-20 school year, SFUSD received approximately $12,159,358.00
in Title I funds which was distributed to approximately 53 eligible schools.
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7. During the 2019-20, SFUSD’s boundaries has about 117 nonpublic/private
schools. Nonpublic/private schools received approximately $502,978.00 in Title I funds of which
only approximately 22 receive Title I funds for services.
8. In addition to its Title I funding and as outlined in SFUSD’s Local Control and
Accountability Plan (“LCAP”), SFUSD invests over $140 million of its General Fund to support
high needs students each year. These funds are allocated directly to school sites that serve focal
students in the form of both dollar allocations and additional staffing supports. SFUSD is equity
focused and strives to maximize both the receipt and distribution of resources to those students in
most need of additional support.
Effects of the COVID-19 Pandemic on Education in the District
9. The COVID-19 pandemic has drastically impacted K-12 education in SFUSD.
10. On or about March 12, 200, in response to the COVID-19 pandemic, SFUSD
announced that it would close its schools beginning on or about March 16, 2020 through April 3,
2020, in order to protect the health and safety of its students and staff. On or about April 7,
2020, in consultation with public health officials across the region, SFUSD along with six Bay
Area counties extended the in-person school closure through the conclusion of the 2019-20 school
year.
11. When SFUSD closed brick-and-mortar schools, SFUSD significantly stepped up
operations to support students and families including: 1) providing free meals to students—
breakfast, lunch and the addition of suppers (for example, on March 30, 2020, SFUSD served
24,000 meals); 2) launching the Phase 2 of SFUSD Distance Learning Plan website to provide
options for learning that include variety of subject areas and increased support for English
Learners, students with disabilities and diverse populations; 3) launching Phase 3 of Teacher-Led
Distance Learning which included interactive distance learning; 4) loaning Chromebooks to
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SFUSD students in grades 3-12 who did not have access to a computer during the day at home to
support distance learning; 5) working with the City & County of San Francisco community-based
organizations and local philanthropists to expand internet access for students in grades 3-12 who
need WiFi to engage in SFUSD’s Distance Learning Plan—as part of that effort, SFUSD
distributed over 3,500 hotspots to families; 6) distributing over 10,000 learning kits, including
over 30,000 books to PK-2 families; and 7) in partnership with the Kinsa Health, San Francisco
Department of Public Health (“SFDPH”’) and University of California San Francisco (““UCSF’’)
gave away free thermometers to help SFUSD families track health symptoms.
12. SFUSD was facing severe funding challenges and struggling to balance budgets
prior to the COVID-19 outbreak. This funding challenge remains and has become more critical.
The pandemic has brought about millions of unanticipated costs for SFUSD. SFUSD estimates
that COVID-19 will result in nearly $16 million less local revenue for the District in the current
year, including a smaller Public Education and Enrichment Fund (“PEEF”’) appropriation and less
sales tax and interest income. Further, for the first time in many years, SFUSD no longer has an
unallocated fund balance. In addition, the largest category of SFUSD’s school aid is Local
Control Funding Formula (“LCFF’’), which SFUSD receives from the State of California. Faced
with deep budgetary cuts because of the economic impact of the COVID-19 pandemic, California
reduced the SFUSD’s LCFF aid by approximately $12,000,000.00. Depending on the duration
and severity of the COVID-19 induced recession, revenues will continue to be suppressed and
possibly decline. Unless SFUSD identifies new revenue streams to offset this loss of funds, K-12
schools in the district will face reduced investment in their students.
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CARES Act Funds Allocated (or Distributed) to SFUSD for K-12 Education
A. Elementary and Secondary School Emergency Relief (ESSER) Funds
13. On or about June 29, 2020, SFUSD applied for money from the local subgrant
ESSER Fund.
14. In September 2020, SFUSD anticipates an allocation of $10,511,000.00 from the
ESSER Fund.
15. If SFUSD distributes the ESSER moneys in the same manner that Title I funds are
usually distributed for equitable services based on low-income nonpublic/private-school students,
as the plain language of the CARES Act requires, then only an estimated $468,790.60 will be
distributed for equitable services to eligible nonpublic/private-school students. This allocation
will equal approximately $719.00 per Title I-eligible student for both public and
nonpublic/private schools.
16. However, using the proportional share calculation set forth in the Department’s
Guidance Document and in Option #2 (Total Enrollment Model) in the Rule, SFUSD would
reserve an estimated $2,205,207.80 in ESSER funds to provide equitable services to
nonpublic/private school students. Thus, under the Department’s preferred proportional share
calculation, an estimated $1,736,417.20, will be diverted from about 13,973 public school
students to about 652 nonpublic/private school students (participating in CARES Act services).
This allocation will equal approximately $594.42 per Title I-eligible student in public schools and
an estimated $3,382.22 per Title I-eligible student in nonpublic/private schools. This
disproportionate share of funding per Title I eligible student, amounting to an estimated 5.7 times
more funding to each nonpublic/private student than public student, defies the intent of the Title I
program.
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B. GEER Funds
17. SFUSD anticipates receiving approximately $3,300,000.00 through the Learning
Loss Mitigation Block Grant Fund/GEER Fund in September 2020. These funds are allocated to
school districts based upon their number of students with disabilities. Like all Learning Loss
Mitigation Grant funding, these funds must be used to offer instruction to students most heavily
impacted by school closures. Examples of eligible expenses include: summer programs;
extending the instructional school year; providing additional academic services for students such
as materials and devices; counseling or mental health services; professional development
opportunities; and access to school breakfast and lunch programs.
The Department’s Rule Significantly Harms SFUSD’s K-12 Students
18. For every dollar that is diverted from public schools in SFUSD as a result of the
Department’s Guidance Document and Rule, SFUSD will have to cut down on expenses in other
areas in order to balance the budget, including potentially investments in low-income students.
19. The Department’s Guidance and Rule will result in less funding to support public
K-12 schools in SFUSD.
20. If SFUSD calculates the proportional share of CARES Act funds for
nonpublic/private school students under Option #1 (Title I Model) in the Rule, non-Title I schools
in SFUSD receiving CARES Act funds will receive no funds. SFUSD oversee approximately 80
non-Title I schools that are eligible to receive CARES Act funds, but under Option #1 these
schools would not receive any funding. Like all schools in SFUSD, 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. Most significantly, the approximately 53 Title I
schools in SFUSD 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.
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This prohibition 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.
21. If SFUSD calculates the proportional share of CARES Act funds for
nonpublic/private school students under Option #2 in the Rule, approximately $1,736,417.20 will
be diverted from public schools to nonpublic/private school students, which represents 17.3% of
SFUSD’s total CARES Act funding for education. With a total of about $2,205,207.80 being
directed to nonpublic/private schools, the approximate 652 Title I-eligible nonpublic/private
school students will generate about $3,382.22 per student. This number is approximately 5.7
times the $594.42 generated per student for the 13,973 Title I-eligible students in public schools.
22. For every estimated $540.00 diverted from the public schools (Title I or non-Title
I schools), a student in SFUSD 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. SFUSD
currently funds approximately 8,000 hotspots for student use but anticipates needing more, not
fewer points of connectivity.
23. For every estimated $109,000.00 diverted from the public schools (Title I or non-
Title I schools), SFUSD will lose support for a public-school teacher required to provide students
with access to learning during the pandemic.
24. Regardless of how SFUSD proportions the CARES Act funds, the Rule results in
1) SFUSD public schools losing critical funds to address the impact of the pandemic or 2)
significantly restricts SFUSD ability to distribute funds to its most vulnerable students.
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Case 3:20-cv-04478-JD Document 35-2 Filed 07/20/20 Page 355 of 355
I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct and of my own personal knowledge.
Executed on this 15" day of July, 2020 at San Francisco, California
Magan Wallace
Chief Financial Officer
San Francisco Unified School District
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Declaration of M. Wallace
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