ESEA EQUITABLE SERVICES: SERVING PRIVATE SCHOOL STUDENTS, PARENTS AND STAFF

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

2. APPLICABLE STATUTES • Title IX, Uniform Provisions: § § 9501-9504 • *Governs equitable services under NINE NCLB Programs • Title I-A: § 1120 • Title V-A: § 5142 • Title V-D-6: § 5466 Brustein & Manasevit, PLLC

3. GUIDANCE • Title IX, Part E Guidance (Revised, March 2009) www.ed.gov/policy/elsec/guid/equitableserguidance.doc • Ensuring Eq. Servs. to Private School Children: A Title I Resource Toolkit: http://www.ed.gov/programs/titleiparta/ps/titleitoolkit.pdf • Title I Services to Eligible Private School Students Guidance: http://www.ed.gov/programs/titleiparta/psguidance.doc • Title I Fiscal Guidance: http://www.ed.gov/programs/titleiparta/fiscalguid.pdf • Benefits to Private School Students and Teachers http://www2.ed.gov/nclb/choice/schools/privbenefits/benefitstops.pdf Brustein & Manasevit, PLLC

4. THE BIG PICTURE Brustein & Manasevit, PLLC

5. NCLB Programs w/Eq. Part. Reqs. • Title I, Part A • Reading First (T1-B-1) • Even Start Family Literacy (T1-B-3) • Migratory Education Program (T1-C) • Title II, Part A • Mathematics and Science Partnerships (T2-B) • Enhancing Education Through Technology (T2-D) • English Language Acquisition, Language Enhancement, and Academic Achievement (T3-A) • Safe and Drug-Free Schools and Communities (T4-A) • 21st Century Community Learning Centers (T4-B) • Innovative Programs (T5-A) • Gifted and Talented Students (T5-D-6)3 Brustein & Manasevit, PLLC

6. GENERAL RULE • LEA must provide equitable services and benefits to eligible private school students, teachers, other educational personnel, and parents Brustein & Manasevit, PLLC

7. Services are Equitable when the LEA… • Spends an equal amount of funds to serve similar public and private school students • Provides services and benefits that are equitable in comparison to the services and benefits provided to public school students • Addresses the specific needs and educational programs on public and private school students on a comparable basis • Provides, in the aggregate, approximately the same amount of services • Provides equal opportunities to participate • Provides services that meet private school’s specific needs Brustein & Manasevit, PLLC

8. CONSULTATION Brustein & Manasevit, PLLC

9. CONSULTATION:Must be “Timely and Meaningful” • Timely • Before the LEA makes any decisions • Meaningful • Genuine opportunity for parties to express their views • Views seriously considered • Not unilateral offer without opportunity for discussion • On-going • BUT NOTE: • LEA has final decision Brustein & Manasevit, PLLC

10. Consultation must include… T1-A: 34 CFR 200.63 T9: § 9501(c)(1) • How students’ needs will be identified • What services will be offered • How, where, and by whom the services will be provided • How the services will be assessed and how the results of the assessment will be used to improve services • The size and scope of services • How and when the LEA will make decisions about the delivery of services • Amount of funds available for services and how determined Brustein & Manasevit, PLLC

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

12. Disagreement Re: Third Party Providers • Thorough consideration of private school officials’ views required • If LEA disagrees with private school officials re: provision of services through a contract  must provide a written explanation of the reasons why LEA has chosen not to use a contractor Brustein & Manasevit, PLLC

13. Written Affirmation • LEAs must obtain written affirmation from private school officials stating timely and meaningful consultation occurred • Signed by officials from each school with participating children, or representative • Note Timing • Required by Title I-A, but not Title IX • Send to SEA and maintain in LEA’s files • Example in Guidance • T9 Note: Guidance (D-9) encourages use of ‘sign-off’ forms although not statutorily required Brustein & Manasevit, PLLC

14. Right to File a Complaint • Private School Official has the right to complain to the SEA that the LEA… • Did not engage in consultation that was meaningful and timely; • Did not give due consideration to the views of the private school official; or • Did not provide fair and equitable services to private school children. • Private School Official provides basis for complaint to SEA; LEA will be required to forward the appropriate documentation to the SEA Brustein & Manasevit, PLLC

15. SEA Resolution of Complaints • SEA must have written procedures for receiving, investigating, and resolving complaints from parents, teachers, or other individuals and organizations. • SEA decisions may be appealed to the U.S. Secretary of Education. Brustein & Manasevit, PLLC

16. FISCAL ISSUES Expenditures under Title IX Deriving the Allocation, TI-A Additional TI-A/TIX Expenditure Considerations Brustein & Manasevit, PLLC

17. Equal Expenditure Guidelines (T9) • Many LEAs calculate equal expenditures strictly on the basis of the relative enrollments of public and private school students • This is not required! • Assumes the numbers accurately reflect the relative needs of students and teachers in public and private schools. • LEAs may use other factors relating to need! • Both the number and the educational needs of the public and private school students must be taken into account. Brustein & Manasevit, PLLC

18. T9 Expenditures, cont. • Must consult with private school officials on the method for determining equal expenditures • Resulting methodology should reasonably reflect the relative numbers and educational needs of the public and private school students • Example of how an LEA may provide private school officials with information about funding allocations for services and per pupil expenditures • T9 Guidance, J-14: Sample Funding Allocations for Services Notification Form Brustein & Manasevit, PLLC

19. Deriving the Allocation, TI-A Brustein & Manasevit, PLLC

20. Equitability: Deriving Allocation General Formula: • Based on number of… • Private school students • From low-income families • Who reside in Title I-participating public school attendance areas Brustein & Manasevit, PLLC

21. Calculating Allocation for Instruction: • Rank public school areas: highest to lowest • Identify participating areas • Calculate PPA for each area • Calculate allocation amount for each area • Must include nonpublic low-income # • Reserve nonpublic amount • PPA x # of nonpublic low-income in each area Brustein & Manasevit, PLLC

22. Set-asides Private school students also must get equitable share of some set-asides… • Off the top for districtwide instruction • *Off top for parental involvement • *Off top for professional development • *Par. Inv. and Prof. Dev. for families and teachers of participating nonpublic students can be provided… • In conjunction with the LEA or • Independently Brustein & Manasevit, PLLC

23. Five Options for Calculating Poverty Data on Private School Students • Data from same source • Survey, with extrapolation • Comparable data from different source • Proportionality • Correlated measure Brustein & Manasevit, PLLC

24. Poverty Data, cont. • 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 Brustein & Manasevit, PLLC

25. Poverty Data: Guidance • Preferred method: Same source (FRPL) • BUT – Legis. and Regs. say equally available • May use >1 method • Use comparable income levels • No duplication Brustein & Manasevit, PLLC

26. Poverty Data: Collect Annually or Biennially • Purpose: to reduce burden • Subject to consultation • Not necessary to have uniform procedure for all private schools Brustein & Manasevit, PLLC

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

28. Additional TI-A/TIX Expenditure Considerations Brustein & Manasevit, PLLC

29. Distributing the Funds • Two options: • Pooling: • T1-A: Pool all the funds to use for students with greatest educational need anywhere in LEA • T9: Pool funds for the 2+ private schools interested in this option, use in some or all of these schools • May NOT pool funds across multiple NCLB programs • School-by-School: • T1-A: Funds follow child to private school for educationally needy child in that school • T9: Based on number of children enrolled in the school Brustein & Manasevit, PLLC

30. Administrative Costs • Off the top!! • Before public and private school allocations are calculated • LEA administrative costs for public and private school program • Third party provider (contractors/private companies) administrative cost (including fee or profit) Brustein & Manasevit, PLLC

31. Carryover If the LEA does not use all funds designated for service to private school students, how is money treated?  IT DEPENDS. • If LEA provided equitable services in first year… •  then carryover funds revert to regular program pot. • If LEA did not provide equitable services, •  then must earmark funds for services to private school students in the carryover year. •  Use in Year 2, in addition to entire amount of new allocation. • EITHER WAY: Funds remain in control of LEA. Brustein & Manasevit, PLLC

32. SERVICE DELIVERY Brustein & Manasevit, PLLC

33. Eligibility for Services Title I-A • Reside in participating public school attendance area; AND • Meet §1115 criteria • Educationally Needy • Status eligibility: homeless, Head Start, ERF, etc. Title IX • Enrolled in nonprofit private school located in LEA • Meet specific eligibility/participation criteria of given program Brustein & Manasevit, PLLC

34. Selection Criteria • Determined by LEA, in consultation • Multiple, educationally-related objective • Achievement tests, teacher referrals, grades • NOTE: Preschool-Grade 2 • Poverty is NOT a criterion # of low-income ≠ # eligible for service Brustein & Manasevit, PLLC

35. QUESTION…. • What if child resides in LEA X but attends a private school located in LEA Y? Brustein & Manasevit, PLLC

36. Delivery and Provision of Services • Directly, through private company, or another LEA • May be on-site at private school, with safeguards • Neutral, secular and non-ideological • LEA controls • Benefit of students, not private school • LEA controls finances • *Includes maintaining title to materials, equipment, and property purchased with those funds Brustein & Manasevit, PLLC

37. Examples • Instruction provided by LEA employees or third-party contractors • Extended-day services • Family literacy • Counseling • Computer-assisted instruction • Home tutoring • Take home computers Brustein & Manasevit, PLLC

38. Timing of Services • To begin at same time as public program • If not  LEA should provide additional services during the remainder of the year and carry over any unspent funds Brustein & Manasevit, PLLC

39. § 1119 Staff Qualifications • Do NOT apply to: • Private school teachers or paraprofessionals • Third party contractor teachers or paraprofessionals • DOES apply to: • LEA teachers teaching private school students • LEA paraprofessionals Brustein & Manasevit, PLLC

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

41. Accountability • Must assess participating private school students • Need NOT be state assessment • Consultation • Compare against relevant adequate progress measure • No school improvement consequences (choice, supplemental services, etc.) Brustein & Manasevit, PLLC

42. Questions? Brustein & Manasevit, PLLC

43. Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with Brustein & Manasevit. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Brustein & Manasevit, PLLC