April 16, 2020
CARES Act Elementary and Secondary Education Provisions
On March 27, 2020, the Coronavirus Aid, Relief, and
BIE), LEA (including a BIE-funded school), or Indian tribe
Economic Security (CARES) Act (P.L. 116-136) was
that receives funding under the ESEA and requests a waiver
signed into law. The law includes several provisions that
using the waiver process described below, the Secretary
apply to elementary and secondary education, including
may waive statutory and regulatory provisions of the ESEA
new waiver authority for the Secretary of Education (the
related to, for example, maintenance of effort (MOE),
Secretary), the creation of the Education Stabilization Fund
provisions under the Student Support and Academic
(ESF), and additional funding for the Project School
Enrichment (SSAE) grant program (Title IV-A), and the
Emergency Response to Violence program, more
definition of professional development that applies to the
commonly known as Project SERV. This In Focus provides
ESEA. To receive a waiver, the request must describe how
an overview of these provisions.
the emergency related to the coronavirus restricts the ability
of the state, SEA, LEA, Indian tribe, or school to comply
National Emergency Educational
with such statutory or regulatory requirements and include
Waivers
an assurance that the SEA, LEA, or Indian tribe will work
The COVID-19 Pandemic Education Relief Act of 2020,
to mitigate any negative effects that may occur as a result of
included as Title III-B of the CARES Act, provides for
the requested waiver. The Secretary is required to approve
waivers primarily related to the Elementary and Secondary
or disapprove a waiver request submitted under this process
Education Act (ESEA). Section 3511 of the CARES Act
within 30 days after the date on which the request was
allows the Secretary, upon request of a state educational
submitted.
agency (SEA), local educational agency (LEA), or Indian
tribe, to grant waivers of various statutory or regulatory
Any waiver approved by the Secretary under the provisions
provisions if the Secretary determines that such a waiver is
of the CARES Act may be for a period not to exceed the
necessary and appropriate due to the coronavirus
2019-2020 academic year, except to carry out the full
emergency determined to exist by the President under
implementation of any MOE waivers granted during the
Section 501(b) of the Robert T. Stafford Disaster Relief and
2019-2020 academic year. The CARES Act prohibits the
Emergency Assistance Act (hereinafter referred to as the
Secretary from waiving any statutory or regulatory
coronavirus emergency).
provision related to civil rights.
The Secretary is required to create a streamlined application
Not later than seven days after granting a waiver under
process for SEAs (including the Bureau of Indian Education
Section 3511, the Secretary must notify Congress about the
[BIE]) and Indian tribes to request a waiver of any statutory
waiver. Not later than 30 days after granting a waiver under
or regulatory requirement for an SEA related to educational
Section 3511, the Secretary must publish a notice of her
assessments, accountability, and reporting requirements
decision to do so in the Federal Register and on the U.S.
pertaining to assessments and accountability under Section
Department of Education’s (ED’s) website.
1111 of the ESEA or Section 421(b) of the General
Education Provisions Act (GEPA) (which concerns the
In addition, not later than 30 days after the enactment of the
extension of the period available for the obligation and
CARES Act, the Secretary is required to prepare and submit
expenditure of appropriated funds). The Secretary may
a report to Congress on any additional waivers under the
grant such waivers using the streamlined application
Individuals with Disabilities Education Act (IDEA), ESEA,
process if she determines that such waivers are necessary
and Carl D. Perkins Career and Technical Education Act of
and appropriate due to the coronavirus emergency.
2006 that she believes are necessary to be enacted into law
to provide limited flexibility to SEAs and LEAs to meet the
Any school located in a state that receives a waiver of any
needs of students during the coronavirus emergency.
provisions included under the streamlined process that is
identified for comprehensive support and improvement,
Education Stabilization Fund
targeted support and improvement, or additional targeted
The ESF is comprised of three emergency education relief
support and improvement for the 2019-2020 school year
funds: (1) a Governor’s Emergency Education Relief
under Section 1111 of the ESEA will maintain that
(GEER) Fund (Section 18002), (2) an Elementary and
identification status for the 2020-2021 school year and
Secondary School Emergency Relief (ESSER) Fund
continue to receive supports and interventions that are
(Section 18003), and (3) a Higher Education Emergency
consistent with the school’s support and improvement plan
Relief (HEER) Fund (Section 18004). The HEER Fund is
in the 2020-2021 school year.
not discussed further in this In Focus. The ESF has an
appropriations level of $30.750 billion for FY2020. The
Waivers of ESEA provisions may also be requested under a
funds are to remain available through September 30, 2021,
second waiver request process. For an SEA (including the
and be administered by ED.
https://crsreports.congress.gov
CARES Act Elementary and Secondary Education Provisions
From the total appropriation for the ESF, the Secretary is
Other Provisions Related to Elementary and
required to reserve up to 0.5% for the outlying areas, 0.5%
Secondary Education
for the Bureau of Indian Education, and 1% to provide
The ESF also includes provisions related to elementary and
competitive grants to the states with the “highest
secondary education issues such as equitable services,
coronavirus burden” to support activities under the ESF.
employment, and MOE provisions.
For the purposes of the ESF, state is defined to include the
50 states, the District of Columbia, and the Commonwealth
The ESF requires that LEAs use funds received under the
of Puerto Rico. It is possible that at least a portion of the
GEER Fund or the ESSER Fund to provide equitable
funds awarded through the competitive grant program could
services to students and teachers in non-public schools, as
be used to benefit elementary and secondary education.
determined in consultation with representatives of non-
public schools, in accordance with the requirements of
The Secretary is required to provide the remainder of the
Section 1117 of the ESEA. Control of the funds that are
funds to the emergency education relief funds. Funds made
used to provide services and assistance to students and
available under the GEER Fund could potentially benefit
teachers in non-public schools, as well as title to materials,
elementary and secondary education. Funds provided under
equipment, and property purchased with such funds, must
the ESSER Fund are focused specifically on elementary and
remain with a public agency.
secondary education.
In addition, any LEA, state, IHE, or other entity that
Governor’s Emergency Education Relief (GEER)
receives funds under the ESF is required to the greatest
Fund
extent practicable to pay its employees and contractors
The FY2020 appropriation for this fund is about $3.0
during the period of any disruptions or closures related to
billion. The funds are to be awarded to governors based on
the coronavirus.
each state’s share of individuals ages 5 through 24 and each
state’s share of children counted in Section 1124(c) of the
Finally, the ESF includes MOE provisions that apply to
ESEA for purposes of awarding Title I-A grants to LEAs.
state funding for elementary and secondary education in
Each governor may choose to use the funds in the following
FY2020 and FY2021. A state must provide an assurance
ways: (1) providing emergency funds to LEAs that the SEA
that it will maintain support for elementary and secondary
“deems have been most significantly impacted by
education in FY2020 and FY2021 at least at the average
coronavirus” to support these LEAs in providing
level of support provided for elementary and secondary
educational services to their students and to support the
education during the three fiscal years preceding the date of
“on-going functionality” of the LEA, (2) providing
enactment of the CARES Act (i.e., FY2017, FY2018, and
emergency funds to institutions of higher education (IHEs)
FY2019). The Secretary, however, has the authority to
serving students within the state that the governor
waive these ESF MOE requirements to relieve fiscal
determines to “have been most significantly impacted by
burdens on states that have “experienced a precipitous
coronavirus” to support these IHEs in providing educational
decline in financial resources.” The ESF MOE requirements
services and to support the “on-going functionality” of the
are in addition to the existing ESEA MOE requirements
IHE; and (3) providing emergency support to any other
that apply at the state and LEA levels and also can be
IHE, LEA, or education-related entity within the state that
waived by the Secretary under certain circumstances.
the governor deems “essential for carrying out emergency
educational services” to students for a broad array of
Project SERV
purposes ranging from any activity authorized under
Project SERV was created to provide resources to LEAs
various federal education laws (e.g., the ESEA and Higher
and IHEs that have experienced a violent or traumatic crisis
Education Act) to the provision of child care and early
that disrupted the learning environment, such as a school
childhood education, social and emotional support, and the
shooting or hurricane. The program received $3.76 million
protection of education-related jobs.
in FY2020.
Elementary and Secondary School Emergency
The CARES Act provides an additional $100 million for
Relief (ESSER) Fund
Project SERV to supplement existing funds to prevent,
The FY2020 appropriation for this fund is approximately
prepare for, and respond to the coronavirus domestically or
$13.2 billion. The funds are to be awarded to states based
internationally. In addition to other allowable uses of
on their relative shares of grants awarded under Title I-A of
Project SERV funds, the CARES Act specifically states that
the ESEA. SEAs are required to provide at least 90% of the
the additional funds can be used by elementary, secondary,
funds they receive to LEAs to be used for myriad purposes
and postsecondary schools to clean and disinfect affected
such as any activity authorized under various federal
schools and assist with costs related to counseling and
education laws (e.g., the ESEA, Individuals with
distance learning.
Disabilities Education Act), coordination of preparedness
and response to the coronavirus, technology acquisition,
Rebecca R. Skinner, Specialist in Education Policy
mental health services, and activities related to summer
learning. Funds retained by the SEA must be used for
IF11509
emergency needs, as determined by the SEA, to address
issues in response to the coronavirus and for administration.
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CARES Act Elementary and Secondary Education Provisions
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