Equitable Services to Private School Students under Title I Part A

1. Equitable Services to Private School Students under Title I Part A Kristen Tosh Cowan, Esq. Brustein & Manasevit, PLLC ktoshcowan@bruman.com Spring Forum 2011

2. Equitable Services: #1 most common finding of noncompliance in USDE Title I program monitoring

3. Commonly Cited Problems Inadequate Public Control and Oversight of Funds Failure to Distribute Set-Asides Inadequate evaluation of program Inadequate consultation Third Party Contracts and Invoices

4. Law and Resources • Statute: Sections 1120 • Title I Regulations • 34 CFR Part 200 • Non-Regulatory Guidance • Title I: October 17, 2003 www2.ed.gov/programs/titleiparta/psguidance.doc

5. Private Schools Ensuring Equitable Services to Private School Children: A Title I Resource Tool Kit • Checklists • Forms • Worksheets Website: http://www2.ed.gov/programs/titleiparta/ps/titleitoolkit.pdf

6. ESEA Programs with Equitable Participation Requirements • Improving Basic Programs Operated by LEAs (Title I, Part A)* (Includes Title I Part A ARRA) • Reading First (Title I, Part B, Subpart 1) • Even Start Family Literacy (Title I, Part B, Subpart 3) • Migratory Education Program (Title I, Part C) • Teacher and Principal Training and Recruiting Fund (Title II, Part A) • Mathematics and Science Partnerships (Title II, Part B) • Enhancing Education Through Technology (Title II, Part D) • English Language Acquisition, Language Enhancement, and Academic Achievement (Title III, Part A) • Safe and Drug-Free Schools and Communities (Title IV, Part A) • 21st Century Community Learning Centers (Title IV, Part B) • Innovative Programs (Title V, Part A)* • Gifted and Talented Students (Title V, Part D, Subpart 6)* *Require equitable participation, contain their own separate equitable participation provisions, and are not covered by Title IX

7. General Rule -Title I • LEA must provide eligible private school students with special educational services or other Title I benefits • Parents and teachers of private school students shall participate, on an equitable basis, in parental involvement and professional development

8. Consultation

9. Consultation: Must be “Timely and Meaningful” • “Timely” • Before the LEA makes any decisions • “Meaningful” • Genuine opportunity for parties to express their views • View seriously considered • Not unilateral offer without opportunity for discussion • LEA has final decision

10. Consultation Must Include: • How students’ needs will be identified • What services will be offered • How, where and by whom the services will be provided • How the services will be assessed, and how assessment results will be used to improve services • The size and scope of services • The amount of funds available for services • How and when the LEA will make decisions about the delivery of services • The method or source of poverty data • The services provided to teachers and families

11. Consultation: Third Party Providers • Thorough consideration of private school officials’ views • If LEA disagrees with private school officials about the provision of services, LEA must provide written analysis of why officials’ opinion rejected • Written record for appeal

12. Consultation:Written Affirmation • LEAs must obtain written affirmation from private school officials stating timely and meaningful consultation occurred. • Signed by officials from each school with participating children, or representative • Send to SEA and maintain in LEA’s files • Example in Guidance

13. Consultation: Written Affirmation and Timing • Sign Affirmation: When planning and design of next school year’s program completed • On-going: Consultation continues throughout implementation and assessment of services

14. Consultation: Give application? Guidance (A-11): • LEA must provide copy of Title I application, if private school officials request it

15. Consultation: Extent of Attempts? • Annually contact private school officials • Invite to meeting – explanation and questions • Not adequate to merely send letter explaining intent of Title I

16. Documenting Consultation • LEA must retain documentation that shows: • Informed private school officials of available federal programs • Engaged in timely and meaningful consultation • Identified private schools’ needs • Allocated sufficient funds for private schools • Provided equitable services and benefits • Evaluated programs and services for effectiveness • Adequately addressed problems & complaints

17. Deriving the Allocation TITLE I , PART A

18. Equitability:Deriving Allocation General Formula: • Based on number of: • Private school students • From low-income families • Who reside in Title I-participating public school attendance areas

19. Calculating Allocation for Instruction: • Rank public school areas: highest to lowest • Identify participating areas • Calculate PPA for each area • Calculate allocation amount for each area • must include nonpublic low-income # • Reserve nonpublic amount • PPA x # of nonpublic low-income in each area

20. Calculating Allocation: “Off the Top” • LEA takes “off the top” reservations • Administration for public and private • Capital expenses • Admin from third-party providers • 20% choice-supplemental services • 1% parental involvement • Discretionary: • Professional development • Summer school • Preschool

21. Reservation for Districtwide Instruction • If LEA reserves for “districtwide instructional programs for public elementary and secondary” • Then proportional amount goes to nonpublic • 34 CFR sect 200.64(a)(2)(i)(A)

22. Example • LEA reserves $500,000 for districtwide reading initiative • Of all low-income in LEA residing in participating attendance areas, 5% are private • 5% of $500,000 to private allocation

23. Applies to: • Summer school • After school programs • Reading coaches DOES NOT APPLY TO: • Supplemental educational services (20%) • Preschool

24. Reservation for Teachers and Families • If LEA reserves funds for parental involvement or professional development • Then proportional amount to nonpublic • 34 CFR sect 200.65(a)

25. Example • LEA reserves 1% of $500,000 allocation for parental involvement, or $5,000. • Of all low-income families residing in participating attendance area, 5% are private. Then 5% of $5,000 used for families of participating private school students.

26. Professional Development • For private school teachers of participants • Not for LEA teachers of participants • Consult over appropriate services • Private school officials cannot arrange, then submit invoice to LEA

27. Poverty Data 5 options: • Data from same source • Survey, with extrapolation • Comparable data from different source • Proportionality • Correlated measure

28. Proportionality • Applying low-income % of each public school attendance area to number of private school children who reside in that area • Correlated measure • Determining the proportional relationship between two sources and applying that ratio to known source or private school students

29. Poverty Data: Guidance • USDE preferred method: Same source (FRPL) • BUT – Legis and regs say equally available • May used >1 method • Use comparable income levels • No duplication

30. Collect Annually or Biennially • Purpose: to reduce burden • Subject to consultation • Not necessary to have uniform procedure for all private schools

31. Distributing the Funds Two options: 1) Pooling: pool the funds to use for students with greatest educational need anywhere in LEA; or 2) School-by-School: funds follow child to private school for educationally needy child in that school

32. Under Pooling Option • If a private school with students eligible for service chooses not to participate, funds generated by low income students in that school remain in the pool.

33. What if LEA chooses to “skip” a public school on its list? If LEA meets the 3 requirements in order to “skip” public school on its list, eligible private school students who reside in that public school attendance area still must: 1) generate funds, and 2) receive services, if eligible.

34. Who gets served??

35. Eligibility for Services Who is eligible for services? 1) Reside in participating public school attendance area; AND 2) Meet sect 1115 criteria • educationally needy • status eligibility: homeless, Head Start, ERF, etc.

36. Selection criteria • Determined by LEA, in consultation • Multiple, educationally-related objective • Achievement tests, teacher referrals, grades • Preschool-grade 2: • Solely on basis of criteria such as teacher judgment, parent interviews, and developmentally appropriate means

37. Poverty is NOT a criterion # of low-income ≠ # eligible for service

38. Service Delivery • Directly, through private company, or another LEA • May be on-site at private school, with safeguards • Neutral, secular and non-ideological • Benefit of students, not private school

39. LEA controls! • LEA is responsible for planning, designing and implementing the Title I program • Through consultation • LEA cannot delegate to private schools or third party contractors

40. Examples • Instruction provided by LEA employees or third-party contractors • Extended-day services • Family literacy • Counseling • Computer-assisted instruction • Home tutoring • Take home-computers

41. Schoolwide option? NO!

42. What if child resides in LEA XX, and attends private school in LEA YY? • LEA XX is responsible. • LEA where child resides is responsible for arranging for services. • May arrange to have services provided by another LEA and reimburse for cost.

43. Timing of Services Guidance: • Must begin at same time as public program • If not, LEA should provide additional services during the remainder of the year and carry over any unspent funds

44. Agostini: Safeguards • Services may be on-site at private school, with safeguards • Guidance: need not mirror NYC program • Guidance: need not remove religious objects from room • Neutral, secular and non-ideological

45. Sect 1119 Staff Qualifications • Do NOT apply to: • private school teachers or paraprofessionals • third party contractor teachers or paras • DOES apply to: • LEA teachers teaching private school students • LEA paraprofessionals

46. Accountability • Must assess participating private school students • Need not be state assessment • Consultation • Compare against relevant adequate progress measure • No school improvement consequences (choice, supplemental services, etc.)

47. How to handle carryover?? • If equitable services provided, then carryover reverts to regular Title I pot • If equitable services NOT provided, then earmark for private school services during carryover year, PLUS entire new allocation

48. Heightened Fiscal Scrutiny on Third Party Contracts

49. USDE State Monitoring: • SEA must require LEA to ensure third party is in compliance • Provider give “technical descriptions . . . in detail sufficient to enable the LEA to determine” requirements met

50. LEAs must exercise proper oversight over invoices • Invoice expenditures in 2 categories: • Instructional activities and administrative costs • Within each category, provide detail sufficient to determine compliance • Name and salary of each teacher, instructional materials purchased, supervisor’s salary, office expenses, travel costs, capital expense type costs, and fee