Equitable Participation

A Way To Help Hurricane-Affected Students

With more than 300,000 students affected by Hurricanes Katrina and Rita, the federal government needs to provide a wide range of services for assistance - from textbooks to counselors.

In order to accomplish this, the National Education Association supports funding to public school districts (to both impacted districts and receiving districts) and the use of the “equitable participation” laws to provide private schools with federally funded services for children in need. Some aspects of current law will need to be adjusted to fit this extraordinary circumstance, but the model is one that would be helpful to all displaced students and has survived constitutional scrutiny. Below is a brief explanation of equitable participation and how it would work to help the students affected by Hurricanes Katrina and Rita.

What is 'equitable participation'?

The Elementary and Secondary Education Act of 1965 -- now called the No Child Left Behind Act -- stated that school districts receiving federal financial assistance may provide services to eligible private school children. These children are students who attend private schools and may be from low-income families and eligible for federal programs such as free and reduced lunches.¹ The basic provisions of equitable participation are found in NCLB sections 9501 and 9502

How much of these services are private school students eligible for?

These services and other benefits must be comparable to the services and other benefits provided to public school children participating in the program and they must be provided in a timely manner. Current law allows the federal per pupil amount (less than $2,000 per pupil under Title I) to be used to benefit each private school student in the form of services, equipment, etc. NEA supports inclusion of a substantially increased per pupil amount -for public and private school students-in legislation to assist victims of Hurricanes Katrina and Rita.

Who controls distribution of services to private school students?

The school district or local education agency, after consultation with the private school. Since public school districts are decision-making bodies that are subject to public review and responsible for all of the students in a school district, there are protection measures to make sure that all students have access to these services. While current law contains no time limits for the period of consultation between the public school districts and private schools, NEA urges Congress to set a deadline in this instance to ensure that the relief needed is provide quickly.

Won't it take a long time for private schools to receive services from the public school districts?

Absolutely not. In fact, for most public schools, believe that serving private schools through equitable participation is the most streamlined way to provide services. Public schools have established relationships with private schools and could deliver services quickly-within a matter of days--after funds were made available. The American Association of School Administrators has surveyed their members, and below are some examples of what administrators have said when asked about the speed with which they could deliver services to any private school under the equitable participation model:

"Upon the funds being available, the St. Charles Parish School District could provide services within days. We have good relationships already established with out private schools and have never had any issues with equitable participation. The only potential area of delay would be in the hiring of new personnel. Depending on level of specialty required for the position would impact the length of time it would take us to fill the position for them. It seems perfect sense at this time to work through procedures that we have already set up. As a district that was directly impacted by Hurricane Katrina, we would have a harder time setting up a completely new system to work with private schools then just working through equitable participation and utilizing our current relationships."
--Dr. Rodney LaFon, Superintendent of St. Charles Parish Schools, LA

"There is no good answer to the question of time. Issues of personnel availability, locations etc. all come into play. Locally we could provide services within a week or two--if we could find personnel. In the absence of adequate regular personnel, we would use those from our substitute list and other temps. There are no barriers within the equitable participation system. We do it for special education services and other federal programs. We know how to involve private schools and to control the delivery of services to them. Private schools may be denied services due to a lack of funds (based upon their proportionate share of the allocation). Of course, illegal or unreasonable requests are not approved. We are currently serving about 130 hurricane evacuees/displaced students in our regular schools with few problems."
--Dr. Benny Gooden, Superintendent of Ft. Smith Public Schools, AR

"Our response depends upon the services, personnel and materials required. It will take no longer than it does for us to increase our services upon demand for public school students. Bureaucratic federal policy and regulations tend to be the only barriers. Dollars should be allocated to the locals through procedures already in place. Private schools are not denied resources for eligible expenses. e.g. special education, title I. Once money is received, it will take days to serve the private schools unless it requires hiring an employee who is not readily available through our HR files. This is not unique to private schools however. We run into this problem all the time. e.g. a special educator to work with emotionally disturbed students."
--Dr. Carl Roberts, Superintendent of Cecil County Public Schools, MD

"The Lincoln Public Schools would have the capabilities of responding as quickly as any school could, given the circumstances. The big question would be the area of need for teachers and the availability of those teachers. Some type of facilities arrangements would have to be made, but that can be worked out on an individual building situation. It would be possible to provide the same types of services that Lincoln Public Schools currently provides private schools if the number of displaced students increased."
--Dr. Virgil Horne, Lincoln Public Schools, NE

What if the local school district fails to comply?

If the local education agency is unable-either due to prohibitive state laws or limited capacity-or unwilling to provide for equitable participation, then the private school has the right to bypass the LEA and arrange with the U.S. Secretary of Education for the services to be provided. This bypass (NCLB § 9502) exists in current law and has been utilized.

How quickly would money begin to flow to public schools from the USED?

We believe that Congress should include a quick deadline for transmittal of funds-certainly no more than 5 weeks after the date of enactment. This is the time frame called for in Rep. Boehner's submission to the House Budget Committee.

But what about private schools that have already spend funds buying textbooks and hiring new teachers to help educate displaced students-how can they be compensated?

The public school district can essentially repay the private school for the books and equipment purchased. In current practice, LEAs providing equitable participation services actually do buy textbooks and equipment, but then have them shipped to the private school for use. The books/equipment would become the property of the LEA, but the private schools retain possession of the materials. Similarly, the LEA could place teachers hired by the private school on the LEA payroll. Virtually every public school district offers better salaries and benefits to educators than do private schools, so the educators would not be at a disadvantage. Furthermore, the public school system cannot discriminate in hiring, unlike the private school system. Thus, the amendment avoids an outcome of federal funds being used in a manner that permits hiring discrimination.

Why would this be good for the students affected by Hurricanes Katrina and Rita?

With so many students affected, and so many different schools taking in displaced students, there needs to be a fair and flexible system for getting services to those in need. Since this system is already in place and has survived constitutional challenge, it would be easy to expand it to meet the needs of students displaced by the hurricane who are now enrolled in private schools for the 2005-2006 school year.

In addition, the transparency that exists in public school district budgetary actions would provide assurance that the federal funds are being used to help students. Using the equitable participation model would eliminate the need to create an entirely new system.

What elements of the current Title I equitable participation provisions need to be included or amended in order to craft an education relief package for the victims of Hurricane Katrina?

• Limited to the 2005-2006 school year (those students still enrolled in the private schools beyond that point would only be eligible for continued services under the federal laws currently in effect).
• Maintain prohibition against using the federal funds to advance religion.
• Maintain provision that funds must be used for secular purposes.
• Maintain anti-discrimination protections in §§9501-9505 of NCLB.
• Expand the definition of an “eligible” private school student to include those students who were displaced by Hurricane Katrina and whose education was interrupted by the Hurricane.
• Maintain provision specifying that the federal per pupil amount (which should be increased above current law) is under the authority of the public school district.
• Set a deadline by which consultation between public and private schools and the delivery of services must occur.
• For LEAs that do not comply with the deadline or requirement to provide services to private schools, Congress should include a “bypass” provision, similar to the one in current law (NCLB § 9502).
• Allow for an expedited process for those private schools that already have equitable participation agreements with public school districts.
• Aid to private schools should match the parameters set for aid to public schools in order to qualify for this relief funding.
• The value of the services provided-pursuant to Supreme Court precedent-must be the same for public and private schools.

For more information, contact:

Kim Anderson
NEA Government Relations
202-822-7341
kanderson@nea.org

NEA Government Relations
October 18, 2005

¹The equitable participation provisions were originally contained in Chapter I, now called Title I. Since the enactment of the Elementary and Secondary Education Act in 1965, the equitable participation model has been expanded to include other ESEA programs, such as Reading First, Title II, Title V, and others.