Equitable Services for Private School Students and Staff and the Elementary and Secondary Education Act

September 13, 2021 R46907

Equitable Services for Private School Students
September 13, 2021
and Staff and the Elementary and Secondary
Rebecca R. Skinner
Education Act
Specialist in Education
Policy
Since the enactment of the Elementary and Secondary Education Act (ESEA, P.L. 89-10, as

amended) in 1965, the major programs of aid to elementary and secondary education authorized
under it have sought to provide for the equitable participation of eligible students enrolled in both

public and private schools. This is particularly true of the largest federal elementary and
secondary aid program, Education for the Disadvantaged, authorized by ESEA Title I-A.
Determining how to provide services to eligible students enrolled in private schools was a key issue related to the enactment
of the ESEA and has continued to be of interest to many in Congress for over 50 years. Prior to the ESEA’s enactment,
Congress considered numerous bills that would have provided aid to elementary and secondary schools. None of these bills
was enacted due primarily to three major concerns: (1) federal control of education, (2) school segregation, and (3) the role
for private elementary and secondary schools in the programs. When the ESEA was drafted, Members of Congress found
ways to address, or at least neutralize, these three concerns. Three of the six original titles of the ESEA, including Title I,
Financial Assistance to Local Educational Agencies for the Education of Children of Low-Income Families, provided for the
equitable participation of private school students in federal elementary and secondary education programs.
Under current law, the ESEA includes two major sets of provisions related to providing services to eligible private school
students. Title VIII-F-1 (§§8501-8506) contains general provisions regarding a variety of ESEA programs under which
services may be provided to private school students, while Title I-A, Section 1117 contains provisions specifically regarding
the Education for the Disadvantaged program. A small number of additional ESEA programs have separate provisions for
serving eligible private school students. Under the Title I-A and Title VIII-F-1 provisions, local educational agencies (LEAs)
are responsible for providing equitable services to eligible private school students and teachers. While the specifics of the
equitable services provisions under Title I-A and Title VIII-F-1 differ, the statutes providing for the equitable participation of
private school students in relevant ESEA programs have generally required that (1) the services be provided by a public
entity or a third-party under contract with a public entity; (2) the control of funds, materials, and equipment must remain
under public control; and (3) the services, benefits, materials, and equipment provided must be secular, neutral, and
nonideological. These requirements are similar to those that have been included in the ESEA since its enactment. Providing
equitable services in this manner, whereby private school students and teachers are served under federal education programs
but private schools themselves do not receive funds, has meant that private schools are not considered direct recipients of
federal aid and are not bound by the requirements of federal laws that apply to federal aid recipients (e.g., civil rights laws).
Equitable service provisions have been included in several non-ESEA programs, such as the Immediate Aid to Restart School
Operations program enacted in response to the Gulf Coast hurricanes of 2005, and the federal education assistance provided
in response to the COVID-19 national emergency declared on March 13, 2020. Some of these programs have mirrored the
ESEA equitable services provisions with LEAs being responsible for providing equitable services, while others have shifted
the responsibility to the state educational agency (SEA). Some have raised questions about whether the delivery of equitable
services under ESEA programs could be handled by SEAs rather than LEAs. In addition, regardless of whether LEAs or
SEAs are responsible for providing equitable services, there are issues related to whether equitable services need to be
provided for specific private school students or whether the provision of equitable services could be altered to pro vide
services that would benefit a larger group of students in a private school, similar to Title I-A schoolwide programs in public
schools.
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link to page 42 Equitable Services and the Elementary and Secondary Education Act

Introduction
Since the enactment of the Elementary and Secondary Education Act (ESEA, P.L. 89-10, as
amended)1 in 1965, the major programs of aid to elementary and secondary education authorized
under it have sought to provide for the equitable participation of eligible students enrolled in both
public and private elementary and secondary schools.2 This is particularly true of the largest
federal elementary and secondary aid program, Education for the Disadvantaged, authorized by
ESEA Title I, Part A and commonly referred to as the Title I-A program.
Providing for the equitable participation of private school students in federal education programs
was one of three major issues that had thwarted congressional efforts to pass legislation to
provide federal aid to elementary and secondary schools prior to the enactment of the ESEA. The
provision of equitable services to private school students and teachers has continued to be an
issue of interest to many in Congress for more than 50 years.
While the specifics of how equitable services are provided to private school students and teachers
have changed over time, providing for the equitable participation of private school students and
teachers in elementary and secondary schools has general y required that (1) the services be
provided by a public entity or by a third-party under contract to a public entity, (2) the control of
funds, materials, and equipment must remain under public control, and (3) the services, benefits,
materials, and equipment provided must be secular, neutral, and nonideological.
This report begins by examining the history of the ESEA equitable services provisions. It
discusses the role of public and private elementary and secondary education in the mid-1960s and
proposals for federal aid to elementary and secondary schools prior to 1965. It then discusses the
initial enactment of the ESEA, with a focus on federal involvement in elementary and secondary
education, school desegregation matters, and private schools. Next, the report considers the
implementation of equitable services provisions from 1965 through 1997, which includes an
overview of two Supreme Court decisions that affected the delivery of equitable services.
The next section of the report examines current equitable services provisions included in the
ESEA. The ESEA includes two major sets of equitable services provisions—one in Title I-A and
one in Title VIII-F-1. The report discusses both sets of provisions and highlights the similarities
and differences between them. It then discusses whether the provision of equitable services
constitutes aid to private schools and other ESEA provisions that apply specifical y to private
schools.
This is followed by a discussion of the inclusion of equitable services provisions in non-ESEA
programs, specifical y with respect to the Individuals with Disabilities Education Act (IDEA), in
federal education programs enacted following the Gulf Coast hurricanes in 2005, and in response
to the COVID-19 pandemic. The report concludes with consideration of selected issues related to
the provision of equitable services.

1 With the exception of the discussion in the “ Selected Issues” section at the end, this report focuses only on equitable
services for private school students and staff under programs authorized by the ESEA. It does not discuss the different
treatment of private postsecondary educational institutions and their students under the Higher Education Act and
related federal legislation.
2 T hroughout this report, the terms private school and nonpublic school are used interchangeably.
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History of ESEA Equitable Services Provisions
This section of the report discusses the prevalence of private school education in the mid-1960s,
efforts to provide federal aid for elementary and secondary education prior to the enactment of the
ESEA, and the enactment of the ESEA. The discussion addresses issues that thwarted efforts
prior to the ESEA to provide federal aid for elementary and secondary education. It also provides
an overview of the titles included in the original ESEA.
A note regarding terminology: the federal program of Education for the Disadvantaged is
currently authorized under Title I-A of the ESEA. Under provisions of the Education
Consolidation and Improvement Act (ECIA), included in the Omnibus Budget Reconciliation Act
of 1981 (P.L. 97-35), ESEA Title I was redesignated as Chapter 1 of the ECIA. This designation
continued until adoption of the Improving America's Schools Act (IASA) in 1994 (P.L. 103-382).
In this report, the Title I-A designation wil be used throughout except when references are made
to specific document titles or legislation that utilizes the Chapter 1 terminology.
Role of Public and Private Elementary and Secondary Education in
the Mid-1960s
Throughout the 20th and 21st centuries, a significant portion of the nation's elementary and
secondary school students have attended private schools. According to the most recent available
data covering both public and private schools, 10.2% of al elementary and secondary students
were enrolled in private schools for school year (SY) 2017-2018.3 Of the 5.7 mil ion students
enrolled in private elementary and secondary schools in that year, 2.1 mil ion were enrolled in
Catholic schools, 2.2 mil ion were enrolled in schools affiliated with other religious
organizations, and 1.4 mil ion were enrolled in nonsectarian schools. Typical y, a higher
percentage of elementary than secondary students has been enrolled in private schools; in fal
2017, 10.8% of elementary students were enrolled in private schools, compared to 8.8% of
secondary students.4
At the time of the initial adoption of the ESEA in 1965, the percentage of students enrolled in
private schools was higher than it is currently. For SY1965-1966, 14.8% of elementary students,
10.1% of secondary students, and 13.5% of al elementary and secondary students were enrolled
in private schools.5 In the past, even more than currently, a large majority of private school
students were enrolled in religiously affiliated schools. In SY1961-1962, 97.7% of private
elementary students were enrolled in such schools. In SY1960-1961, 88.0% of private secondary
students were enrolled in such schools. Of those enrolled in religiously affiliated schools in these
two years, 93.6% of elementary students and 90.9% of secondary students were enrolled in
Catholic schools.6

3 U.S. Department of Education, National Center for Education Statistics, Condition of Education, 2020, “Private
School Enrollment ” Indicator, https://nces.ed.gov/programs/coe/indicator_cgc.asp.
4 U.S. Department of Education, National Center for Education Statistics, Digest of Educational Statistics, 2019, T able
205.10, https://nces.ed.gov/programs/digest/d19/tables/dt19_205.10.asp.
5 U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National Center for Education
Statistics, Digest of Educational Statistics, 1966, T able 27, p. 23, https://books.google.com/books?id=
9pW0C16kXsUC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false.
6 U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National Center for Education
Statistics, Digest of Educational Statistics, 1966, T able 35, p. 30, https://books.google.com/books?id=
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In 1965, and currently, the private share of elementary and secondary enrollments varied widely
among different regions, states, and localities. For example, in fal 2017 13.6% of al elementary
and secondary students were enrolled in private schools in the Northeast region, compared to
11.7% in the Midwest, 9.3% in the South, and 8.1% in the West.7 These regional and state
differences were somewhat more pronounced in the period immediately preceding consideration
of the ESEA in 1965 than currently. In SY1961-1962, the private school share of elementary
school enrollments was 28.4% for the New England states, 36.3% for the Mid-Atlantic states,
27.0% for the Great Lakes states, and 21.0% for the Plains states, compared to 6.5% for the
Southeastern states, 7.3% for the Southwestern states, 10.0% for the Rocky Mountain states, and
12.3% for the West Coast states.8 In SY1960-1961, the private school share of secondary school
enrollments was 17.3% for the New England states, 11.9% for the Mid-Atlantic states, 11.0% for
the Great Lakes states, and 9.4% for the Plains states, compared to 3.8% for the Southeastern
states, 4.1% for the Southwestern states, 3.8% for the Rocky Mountain states, and 6.3% for the
West Coast states.9 Among individual states, private elementary school shares were highest in
SY1961-1962 for Rhode Island (49.4%), Wisconsin (42.0%), and Pennsylvania (41.2%). Private
secondary school enrollment shares were highest in SY1960-1961 for Vermont (22.2%),
Massachusetts (17.9%), and Maine (17.8%).10
Proposals for Federal Aid to Elementary and Secondary Education
Prior to 1965
Between the end of World War II in 1945 and the original enactment of the ESEA in 1965,
Congress considered numerous proposals for federal financial support of elementary and
secondary education. A smal number of these were enacted—primarily the National School
Lunch Act of 1946 (P.L. 396, 79th Congress); formalization and expansion of authority to
compensate local educational agencies (LEAs) for the costs of educating children whose presence
resulted from establishment or expansion of military or certain other federal facilities (P.L. 815
and P.L. 874, 81st Congress, 1950);11 targeted support of programs focused on science,
mathematics, and foreign language education at the elementary and secondary levels (Titles III, V,
and VI) and the postsecondary level under the National Defense Education Act of 1958 (NDEA,
P.L. 85-864);12 and the Vocational Education Act of 1963 (P.L. 88-210).13

9pW0C16kXsUC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false.
7 U.S. Department of Education, National Center for Education Statistics, Digest of Educational Statistics, 2019, T able
205.10, https://nces.ed.gov/programs/digest/d19/tables/dt19_205.10.asp.
8 U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National Center for Education
Statistics, Digest of Educational Statistics, 1965, T able 9, pp. 16-17, https://babel.hathitrust.org/cgi/pt?id=
uiug.30112073934413&view=1up&seq=36.
9 U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National Center for Education
Statistics, Digest of Educational Statistics, 1965, T able 9, pp. 16-17, https://babel.hathitrust.org/cgi/pt?id=
uiug.30112073934413&view=1up&seq=36.
10 U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National Center for Education
Statistics, Digest of Educational Statistics, 1965, T able 9, pp. 16-17, https://babel.hathitrust.org/cgi/pt?id=
uiug.30112073934413&view=1up&seq=36.
11 T his authority was first provided under a 1941 amendment to th e Defense Housing and Community Facilities and
Services Act of 1940 (P.L. 849, 76th Congress), popularly known as the Lanham Act .
12 T itle III of the NDEA authorized Financial Assistance for Strengthening Science, Mathematics, and Modern Foreign
Language Instruction in elementary and secondary schools. Section 305 specifically authorized loans to n onprofit
private schools for this purpose.
13 Limited federal support for vocational education was first authorized by the Smith -Hughes Act of 1917 (P.L. 347,
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Beyond these, several bil s were passed by the House or, more often, the Senate that would have
authorized financial aid to state and local elementary and secondary school systems on a broader
scale.14 These bil s were primarily focused on providing grants to help pay the costs of teacher
salaries and school construction. They were intended to help meet the needs of elementary and
secondary school systems attempting to address rapidly rising enrollment levels due to the post-
World War II baby boom.15 Their focus was on support of teacher salaries, as the largest single
cost factor for elementary and secondary education, and on school construction as required to
serve rapidly rising numbers of enrolled students.
Because they were focused on the broad objects of salaries for al types of teachers and the costs
of construction of al types of school facilities, these proposals were characterized as general aid
bil s, as opposed to categorical aid for more narrowly defined subjects and activities, as
exemplified by the programs authorized by the NDEA in 1958. Another characteristic of these
major pre-ESEA proposals is that they would have provided federal aid only to state and local
systems of public elementary and secondary education; they did not include any support for
private schools or their students or staff.
It has been widely observed and reported that the general aid proposals of the 1945-1965 period
failed to be enacted due to three main sources of objection to them.16 The first of these was
concern about federal control over major elementary and secondary school policies, such as
curricula, instructional methods, or teacher qualifications. During this period, the federal role in
elementary and secondary education, whether financial or otherwise, was limited. For example,
the federal share of total revenues for public elementary and secondary education was 1.4% for
SY1945-1946 and increased to 4.2% for SY1964-1965.17 There was concern that, whether
intended or not, a much more substantial federal role in education funding might inevitably lead,
over time, to direct or indirect federal influence over numerous aspects of state and local
elementary and secondary education policies, such as curricula or teacher qualifications.
Second, there were concerns over public elementary and secondary school policies regarding the
race of students. In 1954, the Supreme Court handed down its decision in the case of Brown v.
Board of Education—that racial segregation of public elementary and secondary schools on the
basis of state law violated the U.S. Constitution. In addition to such de jure segregation, which

64th Congress).
14 Jack Jennings, Presidents, Congress, and the Public Schools, Harvard Education Press, 2015, pp. 15-29; James W.
Guthrie, “A Political Case History: Passage of the ESEA,” Phi Delta Kappan, February 1, 1968,
https://kappanonline.org/political-case-history-passage-esea-guthrie/; Stephen K. Bailey and Edith K. Mosher, ESEA:
The Office of Education Adm inisters a Law, Syracuse University Press, 1968 (hereinafter referred to as “ Stephen K.
Bailey and Edith K. Mosher, ESEA: The Office of Education Adm inisters a Law”); Julie Roy Jeffrey, Education for
Children of the Poor, Ohio State University Press, 1978; Eugene Eidenberg and Roy D. Morey, An Act of Congress,
The Legislative Process and the Making of Education Policy, W.W. Norton and Company, 1969 (hereinafter referred to
as “Eugene Eidenberg and Roy D. Morey, An Act of Congress, The Legislative Process and the Making of Education
Policy”); and Carl F. Kaestle, “ Federal Aid to Education After World War II: Purposes and Politics,” in The Future of
the Federal Role in Elem entary and Secondary Education , Center on Education Policy, 2001, https://files.eric.ed.gov/
fulltext/ED477181.pdf.
15 T otal enrollment in public elementary and secondary schools rose from 25,111,000 students in SY1949-1950 to
30,045,000 in SY1954-1955 and 42,280,000 in SY1964-1965; U.S. Office of Education, National Center for Education
Statistics, Digest of Educational Statistics, 1965, T able 28, p. 24, https://babel.hathitrust.org/cgi/pt?id=
uiug.30112073934413&view=1up&seq=36.
16 See sources referenced in footnote 14.
17 U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National Center for Education
Statistics, Digest of Educational Statistics, 1966, T able 65, p. 53, https://books.google.com/books?id=
9pW0C16kXsUC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false.
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had taken place in a number of Southern states, several public elementary and secondary schools
in other regions of the nation were heavily segregated by race as a result of the demographic
characteristics of the residential areas they served—de facto segregation.
While de facto segregation of public elementary and secondary schools was a significant factor in
many parts of the nation throughout the 1945-1965 period, the legislative focus in the period
following the 1954 Brown decision was on the remaining effects of de jure segregation in the
Southern states in which such policies had been in effect. Many Members of Congress from these
states expressed concern that large-scale federal financial aid would be used as a lever to force
Southern states to desegregate public schools more quickly or comprehensively than what had
occurred thus far. In contrast, some other Members of Congress hoped that increased federal aid
would indeed stimulate increased desegregation of schools, and supported such aid at least
partial y for this reason, and they resisted supporting federal aid if any of the funds would go to
states and LEAs operating public schools under de jure policies of racial segregation.
On a number of occasions,18 bil s authorizing large scale federal aid for teacher salaries and
school construction did not pass the House after amendments were adopted that would prohibit
the provision of any funds to state or local school systems operating under de jure segregation
policies. These were often referred to as Powel Amendments because they were frequently
offered by Representative Adam Clayton Powel , who during much of this period was Chairman
of the House Committee on Education and Labor. Typical y, the Powel Amendments would be
adopted with support of Members opposed to school segregation, as wel as Members who
opposed broader federal school aid due to concerns over federal control or the limiting of the
proposed aid to public schools only (see below); then bil s including Powel Amendments would
not pass due to opposition by Members representing Southern states plus Members concerned
that excessive federal control would accompany the aid.
The third main source of objection to proposals for large-scale federal aid to elementary and
secondary education throughout the 1945-1965 period revolved around the role for private
elementary and secondary schools. As noted above, the pre-ESEA bil s that were passed by the
House and/or Senate, but not enacted, during this period would have provided support only to
public schools. As also noted above, the proportion of elementary and secondary school students
who were enrolled in private schools was relatively high (compared to the present time)
throughout the period, especial y in selected states and regions of the nation, and a large majority
of private school students were enrolled in religiously affiliated schools, particularly Catholic
schools.
Some national organizations concerned with educational or religious policies opposed the
adoption of any increased federal elementary and secondary education funding that would include
private schools as beneficiaries. These included the National Education Association, Council of
Chief State School Officers, National School Boards Association, American Civil Liberties
Union, National Council of Churches, American Jewish Congress, and Protestants and Other
Americans United for Separation of Church and State.19 Representatives of these organizations
often argued that inclusion of private schools, a large majority of them religiously affiliated, in a
new federal program of aid to elementary and secondary education would reduce funding and

18 See sources referenced in footnote 14.
19 Eugene Eidenberg and Roy D. Morey, An Act of Congress, The Legislative Process and the Making of Education
Policy, pp. 13-14; and Stephen K. Bailey and Edith K. Mosher, ESEA: The Office of Education Adm inisters a Law, pp.
15-16. Note that the “ Protestants and Other” portion of th e name of the Protestants and Other Americans United for
Separation of Church and State was dropped in 1972.
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support available to public schools, and would inevitably involve the support of specific religious
organizations, in violation of principles of separation of church and state. At the same time,
organizations such as the United States Conference of Catholic Bishops, National Catholic
Welfare Conference, and National Catholic Education Association opposed any new aid programs
that did not include support of private schools.20 Among other points, these latter organizations
argued that with a large percentage of elementary and secondary students enrolled in private
schools, many of them disadvantaged, it was a matter of fairness for a national program aimed at
improving education for the disadvantaged (as was the case with the ESEA—see below) to
include services to eligible private school students.
It was frequently observed and reported that many Members of Congress representing
constituencies where a substantial percentage of students were enrolled in private schools would
not support proposals for large-scale federal aid that excluded such schools. At the same time, the
pre-ESEA proposals included only public schools largely because many other Members would
not support providing significant amounts of direct federal aid to private elementary and
secondary schools, especial y those with a religious affiliation.21 During the mid-1960s, private
schools were experiencing financial pressures associated with baby boom growth in enrollments,
along with—in the case of religiously affiliated schools—a decreased ability to rely on relatively
low-cost religious staff as teachers. Several states and localities had begun to provide limited,
secular services such as transportation and student health services, or classes in secular subjects
on a shared-time basis. In a shared-time model, private school students would go to a public
school for a few hours each week for instruction in selected secular subjects.
Initial Enactment of the ESEA in 1965
Unlike the several proposals of the 1945-1964 period, managers and supporters of the ESEA in
1965 found ways to satisfy, at least minimal y, and/or neutralize the three major sources of
opposition described above that had prevented the earlier proposals from being enacted. The
legislative process under which the original ESEA was considered was distinctive in several
respects. The version that was ultimately enacted was highly similar to the legislative proposal
that was submitted to Congress. A smal number of amendments were adopted during
congressional consideration, al but one of them occurring early in the process during debate on
the bil by the General Subcommittee on Education of the House Committee on Education and
Labor.22 Many other amendments were offered but no additional significant amendments were

20 Eugene Eidenberg and Roy D. Morey, An Act of Congress, The Legislative Process and the Making of Education
Policy, pp. 61-70; Stephen K. Bailey and Edith K. Mosher, ESEA: The Office of Education Adm inisters a Law, pp. 15-
16.
21 Certain forms of indirect aid were already available to private elementary and secondary schools, whether or not they
were religiously affiliated. T hese included exemption from most local, state, and federal taxes, as well as the
availability (albeit limited) of loans under the NDEA (see footnote 12).
22 One of the General Subcommittee on Education amendments changed a provision of the introduced bill to emphasize
public agency control over educational materials and services for eligible private school students and teachers under
T itles II and III. A second amendment adopted by the subcommittee was to supplement the counts of children in low-
income families as used in the T itle I allocation formulas—children aged 5-17 in families with income below $2,000—
with counts of children aged 5-17 in families receiving Aid to Families with Dependent Children (AFDC) paym ents
above $2,000. Other subcommittee amendments required state and local evaluation of T itle I programs and increased
the appropriations authorization for Title V. T he single amendment adopted during House floor debate involved the
process for appointing members of advisory councils. Stephen K. Bailey and Edith K. Mosher, ESEA: The Office of
Education Adm inisters a Law, pp. 60-67.
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adopted during consideration of the bil by the House Committee on Education and Labor, the full
House, the Senate Committee on Labor and Public Welfare, or the full Senate.
Because the same version of the bil was passed by the House and the Senate, there was no need
for conference committee consideration. The entire legislative process took place relatively
quickly—the bil was introduced on January 12, 1965, and was signed into law on April 11, 1965.
It has been widely reported that this expedited consideration, resistance to amendments, and
particularly the avoidance of a conference committee were intended to minimize opportunities for
opponents of the bil to organize resistance to it, especial y over religious and private school
issues, and to avoid stages of the legislative process (such as conference committees) at which
previous federal elementary and secondary education aid bil s had stal ed.23
The Six Titles of the Original ESEA
The original ESEA as enacted (P.L. 89-10) contained six titles. Each is discussed below.
Title I—Financial Assistance to Local Educational Agencies for the Education of Children of
Low-Income Families
Both in 1965 and currently, this was and is the largest federal elementary and secondary
education program, providing aid for the education of disadvantaged children residing in areas
with concentrations of children from low-income families.24 Funds were, and are, al ocated by
formula to LEAs via state educational agencies (SEAs). Funds were initial y al ocated based on
the number of children aged 5-17 in families with income below $2,000 according to the 1960
Census, plus the number of children aged 5-17 in families receiving payments under the Aid to
Families with Dependent Children (AFDC) program above $2,000, multiplied by a cost factor
based on state average expenditures per pupil for elementary and secondary education. Concerns
about the ESEA’s treatment of students enrolled in private schools were focused primarily on this
program.
With respect to students enrolled in private schools, Title I required, as conditions for state and
LEA eligibility to participate in the program,
(2) that, to the extent consistent with the number of educationally deprived children in the
school district of the educational agency who are enrolled in private elementary and
secondary schools, such agency has made provision for including special educational
services and arrangements (such as dual enrollment, educational radio and television, and
mobile educational services and equipment) in which such children can participate; [and]
(3) that the local educational agency has provided satisfactory assurance that the control of
funds provided under this title, and title to property derived therefrom, shall be in a public
agency for the uses and purposes provided in this title, and that a public agency wil
administer such funds and property.25
Title II—School Library Resources, Textbooks, and Other Instructional Materials
Grants were to be al ocated to states by formula based on their number of students enrolled in
public and private elementary and secondary schools. Within states, books and other instructional
materials were to be al ocated based on need (as determined by the state).

23 Stephen K. Bailey and Edith K. Mosher, ESEA: The Office of Education Administers a Law, pp. 60-67.
24 As originally enacted, and for several years thereafter, Title I (only) of the ESEA was structured as a new T itle II of
P.L. 874 (81st Congress), a program to provide funding to public schoo l systems in areas affected by federal activity,
such as military facilities.
25 §205(a)(2) and (3). Because T itle I of the ESEA was originally structured as T itle II of P.L. 874 (81st Congress),
section numbers began with 201.
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With respect to students enrolled in private schools, Title II provided “that to the extent consistent
with law such library resources, textbooks, and other instructional materials wil be provided on
an equitable basis for the use of children and teachers in private elementary and secondary
schools in the State” (§203(a)(3)(B)). Title II further provided that title to al materials purchased
with funds under this program must be held by a public agency, and that books and instructional
materials must be limited to those that have been approved for use in the state's public schools
(§205).
Title III—Supplementary Educational Centers and Services
Title III authorized grants to LEAs at the discretion of the U.S. Commissioner of Education26 for
the “development and establishment of exemplary elementary and secondary school educational
programs to serve as models for regular school programs” (§301(a)). The total share of Title III
funds to be granted to LEAs within each state was to be determined by a formula with 50% based
on population aged 5-17 and 50% based on total population.
With respect to students enrolled in private schools, Title III provided “that, to the extent
consistent with the number of children enrolled in nonprofit private schools in the area to be
served whose educational needs are of the type which the supplementary educational activities
and services provided under the program are to meet, provision has been made for participation of
such children” (§304(b)(3)(B)).
Title IV—Educational Research and Training
Title IV amended the Cooperative Research Act of 1954 with respect to the education research
activities of the U.S. Office of Education.
Title V—Grants to Strengthen State Departments of Education
SEAs were given a substantial role in the administration of ESEA programs. Funding under Title
V was intended to help increase the capabilities of SEAs to meet those responsibilities. Funds
were granted to states through a combination of flat grants ($100,000 per state) plus al ocations
proportional to the number of students enrolled in public elementary and secondary schools in
each state.
Title VI—General Provisions
These included limitations on federal control over state and local educational policies, and a
prohibition against the use of funds provided under the act for religious instruction.
Federal Involvement in Education Policy, School Desegregation, and Private
Schools
In the ESEA as enacted, the three primary concerns about federal involvement that had hindered
previous legislative attempts, as discussed above, were addressed. First, specific provisions were
included in the act prohibiting federal involvement in or control over many of the core aspects of
state and local elementary and secondary education policy. The primary such provision was
Section 604:
Nothing contained in this Act shall be construed to authorize any department, agency,
officer, or employee of the United States to exercise any direction, supervision, or control
over the curriculum, program of instruction, administration, or personnel of any
educational institution or school system, or over the selection of library resources,

26 At that time, this person was the chief officer of the U.S. Office of Education.
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textbooks, or other printed or published instructional materials by any educational
institution or school system.
Similar provisions, extended in scope over time, have been included in each version of the ESEA
since 1965, as wel as the Department of Education Organization Act of 1979.27
Further, while the primary ESEA program—Title I aid for the education of disadvantaged
children—was targeted in its focus on improving education for low-achieving students attending
schools in areas with concentrations of school-age children from low-income families, it was
broad and flexible in many other important respects. From the beginning, Title I has been
nondirective or noncontrolling with respect to such basic instructional elements as the curricula
and educational strategies to be implemented by state and local grantees.
Second, concerns about school segregation with respect to the ESEA were largely defused by the
preceding enactment of the Civil Rights Act (CRA) of 1964. In particular, Title VI of the CRA
authorized the U.S. Office of Education (USOE)28 to discontinue federal aid payments to
segregated school systems. While adoption of the ESEA raised the stakes for segregated school
systems by substantial y increasing the amount of federal aid they might lose, the CRA
effectively made moot the Powel Amendments that had hindered the adoption of earlier federal
elementary and secondary education aid proposals.
And third, concerns about federal support, or lack of support, for private elementary and
secondary schools and/or their students were resolved in the ESEA through application of a new
strategy involving child benefit and shared-time concepts. While the original (and current) ESEA
provided no direct financial aid to private schools, its Titles I, II, and III required participating
states and LEAs to include eligible private school students, staff, and in some cases parents in the
services funded by the act. For example, under ESEA Title I, LEAs receiving grants were
required to consult with local private school officials to identify eligible students enrolled in their
schools. Eligible private school students were low-achieving students residing in the areas with
concentrations of students from low-income families in which public schools are selected to
operate Title I programs. The identified private school students were to receive supplementary
educational services that were equitable to the Title I services provided to eligible public school
students. Control of federal funds, provision of services, and ownership of textbooks and other
instructional materials were to be maintained by public school authorities. In effect, LEAs and
SEAs were to act as public trustees for providing equitable services to eligible students enrolled
in private schools. In addition, Section 605 of the original ESEA prohibited the use of funds
provided under the act for religious instruction.
The essence of the child benefit concept embodied in the ESEA is that eligible private school
children would receive and benefit from federal y funded educational services and materials, but
no aid would accrue to the private schools themselves. The educational services and instructional
materials provided with federal funds would be secular only, and public agencies would retain
control of al funds. In typical practice during the initial years of ESEA implementation, eligible
private school students would come to public schools, or public school teachers would go to
private schools, for a limited period of time each week for instructional purposes. This was
modeled to some extent on shared-time programs implemented previously in some states, under

27 See especially Sections 1604, 8526 and 8526A of the ESEA, and Section 103 of the Department of Education
Organization Act of 1979 (P.L. 96-88).
28 T his office, within the Department of Health, Education, and Welfare (DHEW), administered most federal education
programs before the establishment of the U.S. Department of Education (ED) in 1979.
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which private school students would go to a public school for a few hours each week for
instruction in selected secular subjects.
Some public school advocates were displeased that support for private school students was
included in the ESEA in any form, while advocates of Catholic and other private schools opposed
the control of aid by state and local public school authorities and the lack of full parity in
treatment of private and public schools. Nevertheless, the child benefit approach proved to be at
least minimal y acceptable to both proponents and opponents of federal aid to private schools.29
Implementation of the ESEA's Equitable Services
Provisions from 1965-1997
Little is known about how and the extent to which Title I-A30 and other program services were
provided to eligible private school students during the first several years of implementation of the
ESEA. Information on or evaluation of the ESEA's equitable services provisions have always
been limited, but were especial y so in the early years of the program.
The Education Amendments of 1974 (P.L. 93-380) mandated that a study of Title I-A programs be
conducted by the National Institute of Education (NIE). At that time, the NIE was a branch of the
USOE in the Department of Health, Education, and Welfare (DHEW) that was responsible for
conducting and supporting educational research and related activities. According to the 1976
interim report of the resulting NIE Compensatory Education Study,31 in SY1975-1976 an
estimated 5% of al private school students enrolled in grades K-8 (116,218 students) received
services under Title I-A, compared to an estimated 19.5% of public school students in those
grades.32
The interim report of the NIE Compensatory Education Study found that large LEAs were more
likely to provide Title I-A services to private school students than smal er LEAs in 1975-1976:
76.1% of large LEAs (enrollment more than 17,268 students), 46.0% of medium LEAs (4,359-
17,268 students), and 11.4% of smal LEAs (fewer than 4,359 students) served any private school
students under Title I-A.33 Overal , 17.1% of al LEAs provided instructional services to any
private school students under Title I-A, while 7.7% of al LEAs provided support services to any
private school students under Title I-A.34

29 See sources referenced in footnote 14.
30 In the years following the initial enactment of the ESEA in 1965, several parts were added to T itle I. T he primary
T itle I program of aid to LEAs for the education of disadvantaged children is currently Part A of T itle I, and is referred
to as T itle I-A in this report in most circumstances.
31 U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National Institute of Education,
Evaluating Com pensatory Education: An Interim Report on the NIE Com pensatory Education Study , Washington, DC,
December 30, 1976, https://babel.hathitrust.org/cgi/pt?id=mdp.39015008170543&view=1up&seq=7 (hereinafter
referred to as “ National Institute of Education, Evaluating Compensatory Education: An Interim Report on the NIE
Com pensatory Education Study”).
32 National Institute of Education, Evaluating Compensatory Education: An Interim Report on the NIE Compensatory
Education Study, p. III-14. T his study focused specifically on grades K-8 because it was found that less than 1% of
students served by T itle I-A in SY1975-1976 were enrolled in grades 9-12. Note that for public school students,
participants in state compensatory education programs were included in the T itle I -A participation figures.
33 National Institute of Education, Evaluating Compensatory Education: An Interim Report on the NIE Compensatory
Education Study, p. III-19.
34 National Institute of Education, Evaluating Compensatory Education: An Interim Report on the NIE Compensatory
Education Study, p. III-19. For purposes of the study, support services were defined as “ the expenditure of funds for
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A final report on the NIE Compensatory Education Study, published in 1978,35 further stated that
only 43% of al LEAs that received Title I-A funds and contained private elementary and
secondary schools within their boundaries provided any Title I-A services to private school
students. On average, the Title I-A-supported services to private school students consisted of one
hour of instruction per week, compared to an average of approximately five hours per week
(depending on grade level) for public school students. Following the NIE's Compensatory
Education Study, the National Advisory Council on the Education of Disadvantaged Children
(NACEDC)36 issued a report in 1979 that criticized the almost complete lack of information on
the types of services provided to private school students under Title I-A and on the effectiveness
of those services.
The Department of Education Organization Act of 1979 (P.L. 96-88) replaced the USOE in
DHEW with the U.S. Department of Education (ED). A study prepared for ED and published in
1983—the District Practices Study (DPS)37—provides the most substantial available data on Title
I-A services to private school students during the period of the mid-1970s through early 1980s.
According to the DPS, in SY1981-1982 56% of LEAs that received Title I-A grants and had
private school students residing in their Title I-A (public) school attendance areas provided Title
I-A services to any of those private school students. The proportion of LEAs providing Title I-A
services to at least one private school student rose with LEA enrollment size.38 Also in SY1981-
1982, the DPS reported that 83% of private school students served under Title I-A received those
services at their private school, 16% at a public school, 2% in a mobile van, and 4% at a neutral
site.39
The authors of the DPS found that Title I-A students attending private schools received an
average of 2.6 hours per week of Title I-A-funded instruction, compared to an average of 4.0
hours per week for public school students.40 With respect to the share of private versus public
school students who participated in Title I-A, the authors of the DPS reported that in SY1979-
1980 3.8% of al private school students in grades K-12 participated in Title I-A, compared to
12.5% of al public school students.41

any services which do not involve direct instruction of the participants.”
35 U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National Institute of Education,
Com pensatory Education Study. Final Report to Congress From the National Institute of Education, Washington, DC,
September 1978.
36 National Advisory Council on the Education of Disadvantaged Children (NACEDC), 1979 Special Report on the
NIE Com pensatory Education Study, http://files.eric.ed.gov/fulltext/ED173498.pdf. At that time, the establishment of
the NACEDC was authorized under Section 148 of the T itle I-A statute. T he council advised the Secretary of DHEW
and Congress on major aspects of the T itle I-A program, particularly on evaluation and assessment practices.
37 Advanced T echnology, Inc., Local Operation of Title I, ESEA, 1976-1982, A Resource Book (also referred to as the
District Practices Study), prepared for the U.S. Department of Education, June 1983, https://files.eric.ed.gov/fulltext/
ED243244.pdf (hereinafter referred to as “ Advanced T echnology, Inc., Local Operation of Title I, ESEA, 1976-1982, A
Resource Book”).
38 T itle I-A services were provided to private school students by 17% of small, 44% of medium, and 68% of large
enrollment LEAs; Advanced T echnology, Inc., Local Operation of Title I, ESEA, 1976-1982, A Resource Book, p. 9-
10.
39 Advanced T echnology, Inc., Local Operation of Title I, ESEA, 1976-1982, A Resource Book, p. 9-30. T he
percentages total to more than 100% due to some students being served in multiple locations (i.e., the types of sites at
which services were provided were not mutually exclusive).
40 Advanced T echnology, Inc., Local Operation of Title I, ESEA, 1976-1982, A Resource Book, p. 9-23.
41 Advanced T echnology, Inc., Local Operation of Title I, ESEA, 1976-1982, A Resource Book, pp. 9-10 and 9- 11.
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During the period of 1965 through the mid-1980s, virtual y al 42 students served by Title I-A,
whether they attended public or private schools, participated in targeted assistance programs. This
means that in public schools selected to receive Title I-A funds, individual students who were
among the most educational y disadvantaged in the school were selected to be served. The
instructional and support services for these students might have been provided within their
regular classroom and during regular class hours (e.g., receiving special, individualized assistance
by a teacher's aide), or more often in a pullout context outside of the regular classroom (e.g.,
individual or smal group instruction in a separate setting by a specialized reading teacher).43
Similarly, then, as now, students enrolled in private schools selected to be served by Title I-A
were to be the most disadvantaged individual students at the school. Thus, virtual y al students
counted as Title I-A participants during this time period, whether in public or private schools,
directly received targeted instructional or support services funded at least in part by Title I-A. As
wil be discussed further below, this continues to be the model for serving private school students
under Title I-A, but a large majority of public school students counted as participating in Title I-A
are currently served via schoolwide programs, under which funds may be used in ways that are
intended to improve the performance of al enrolled students, and al students enrolled in the
school are counted as being served under Title I-A.
The First Felton Decision: Aguilar v Felton (1985)
A 1985 Supreme Court decision in the case of Aguilar v. Felton44 declared unconstitutional the
practice of providing Title I-A services to pupils of religiously affiliated private schools by
sending public school teachers or other staff into such schools. The Court ruled that provision of
Title I-A services to students on the premises of religiously affiliated private schools was
unconstitutional because it involved “excessive administrative entanglement” between public and
religious school officials. This had previously been the dominant method of providing such
services,45 and the majority of private school pupils served by Title I-A attended religiously
affiliated schools.

42 While the schoolwide program was initially authorized in Section 133 of the Education Amendments of 1978 ( P.L.
95-561), it was originally restricted to schools where 75% of more of the students were from low-income families, and
was accompanied by a requirement that T itle I grants to these schools must be matched by an equivalent amount of
non-federal supplementary funds. Beginning with the Improving America's Schools Act (IASA; P.L. 103-382) in 1994,
the eligibility threshold was reduced to 60% for SY1995-1996 and 50% for SY1996-1997 and thereafter, and the non-
federal matching requirement was dropped. T he eligibility threshold was furt her reduced to 40% under the No Child
Left Behind Act of 2001 (P.L. 107-110). The level of participation in schoolwide programs remained low until
adoption of the IASA, after which it grew rapidly.
43 Launor F. Carter, A Study of Compensatory and Elementary Education: The Sustaining Effects Study, final report,
prepared for the U.S. Depart ment of Education, Office of Program Evaluation, January 1983, p. I-1,
https://files.eric.ed.gov/fulltext/ED246991.pdf.
44 105 S. Ct. 3232. See House Committee on Education and Labor, Subcommittee on Elementary, Secondary, and
Vocational Education, After Aguilar v. Felton: Chapter 1 Services to Nonpublic Schoolchildren , March 1986, Serial
No. 99-N, especially David M. Ackerman, Congressional Research Service, “ Constitutional Guidelines for the
Provision of Services Under Chapter 1 of the ECIA to Eligible Children Who Attend Private Sectarian Schools,” p. 3 -
17, and Wayne C. Riddle, Congressional Research Service, “Generally Permissible Uses of Federal Assistance Under
the Basic Grant Program of Chapter 1, ECIA,” p. 34-47. (Hereinafter referred to as “ House Committee on Education
and Labor, Subcommittee on Elementary, Secondary, and Vocational Education, After Aguilar v. Felton: Chapter 1
Services to Nonpublic Schoolchildren”).
45 As noted previously, the most comprehensive study of T itle I-A services to private school students reported that in
SY1981-1982, 83% of private school students served under T itle I-A received those services at their private school,
compared to 16% at a public school, 2% in mobile vans, and 4% at neutral sites. T he percentages total to more than
100% due to some students being served in multiple locations; Advanced T echnology, Inc., Local Operation of Title I,
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The Aguilar v. Felton case was based on the provision of Title I-A services to private school
students residing in the New York City school district. In that LEA, instruction was general y
provided at private school sites by public school teachers. The instructional materials and
equipment were provided by the public school system, classrooms were required to be free of
religious symbols, contact between teachers and religious school staff was to be minimized, and
supervision of the program included unannounced visits by public school staff to the classrooms
where Title I-A services were being provided in private schools.46
As discussed above, at the time of the Aguilar v. Felton ruling, the instruction for a large majority
of the private school students served by Title I-A took place at private schools, and a large
majority of private elementary and secondary schools were religiously affiliated.47 The most
common means by which Title I-A services were provided to private school students at the time
of the ruling was instruction by public school teachers in a private school classroom or other
space where religious symbols had been removed and other measures had been taken to insulate
the Title I-A instruction and class from the regular activities of the private school.48
The 1992 National Assessment of Chapter 1 Act (P.L. 101-305) required ED to study and report
on the current status of Title I-A equitable services to private school students.49 The resulting
report—Chapter 1 Services to Religious-School Students: A Supplementary Volume to the
National Assessment of the Chapter 1 Program50—comprehensively reviewed the extent and
characteristics of Title I-A services to private school students during the late 1980s through early
1990s, a period when the Aguilar v. Felton decision was fully in effect. The report focused on
religiously affiliated schools because they continued to enroll a large majority of al students
enrolled in private schools, including those participating in Title I-A.
According to the report, a rapid initial decline in private school student participation resulted
largely from a lack of immediately available neutral sites at which private school students could
be served, as wel as concerns about the health and safety of private school students being
transported to neutral sites or public schools and the resulting disruption of school schedules.51 By
SY1990-1991, it was reported that Title I-A services were most often provided to private school
students in mobile vans (29% of private school students served), in portable classrooms and
“other religiously neutral facilities” (24% of students), via computer-assisted instruction in

ESEA, 1976-1982, A Resource Book, p. 9-30.
46 House Committee on Education and Labor, Subcommittee on Elementary, Secondary, and Vocational Education,
After Aguilar v. Felton: Chapter 1 Services to Nonpublic Schoolchildren .
47 In SY1985-1986, 38.7% of all private elementary and secondary schools were affiliated with the Catholic Church,
42.0% were affiliated with other religious organizations, and 19.3% were nonsectarian. U.S. Department of Education,
National Center for Education Statistics, Digest of Educational Statistics, 1987, T able 44, p. 55,
https://files.eric.ed.gov/fulltext/ED330086.pdf.
48 House Committee on Education and Labor, Subcommittee on Elementary, Secondary, and Vocational Education,
After Aguilar v. Felton: Chapter 1 Services to Nonpublic Schoolchildren.
49 Interim and final reports of the National Assessment of Chapter 1, published in 1986 and 1987, did not assess the
effects of the Aguilar v. Felton decision on T itle I services to private school students, due mainly to the timing of those
reports' preparation. P.L. 101-305 was adopted largely in response to this.
50 M. Bruce Haslam and Daniel C. Humphrey, Chapter 1 Services to Religious-School Students. A Supplemental
Volum e to the National Assessm ent of the Chapter 1 Program , prepared for the U.S. Department of Education, August
1993, https://files.eric.ed.gov/fulltext/ED362615.pdf (hereinafter referred to as “ M. Bruce Haslam and Daniel C.
Humphrey, Chapter 1 Services to Religious-School Students. A Supplem ental Volum e to the National Assessm ent of the
Chapter 1 Program ”).
51 M. Bruce Haslam and Daniel C. Humphrey, Chapter 1 Services to Religious-School Students. A Supplemental
Volum e to the National Assessm ent of the Chapter 1 Program , p. i.
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“special y designated facilities on religious school premises” (32% of students), in public school
facilities (12% of students), and in other facilities (2% of students).52
While the Aguilar v. Felton decision was in force, LEAs had to comply by delivering Title I-A
services through alternative means, such as bringing private school pupils into public schools for
Title I-A instruction, renting space in neutral sites (such as mobile classroom vans parked on
public streets), or using telecommunications technologies to deliver instruction. In general, these
alternatives generated increased costs that, according to program regulations, had to be paid “off
the top” of an LEA’s Title I-A grant (i.e., before the calculation of equal grants per child from a
low-income family in eligible public school attendance areas or private schools). In addition,
because these alternative techniques for delivering services were often substantively different
from those used to serve public school students, there was concern that they might violate
requirements that Title I-A services to private school pupils be equivalent to those provided to
public school pupils. Final y, some advocates of private schools considered the post- Aguilar v.
Felton methods of serving private school students under Title I-A to be unsatisfactory because of
the time loss and inconvenience for some private school students, who were often required to
interrupt their school day to be transported to a neutral or public school site.53
As a result of these difficulties, as wel as a period of uncertainty over how and when LEAs were
to comply with the Aguilar v. Felton ruling, private school student participation in Title I-A
declined substantial y in SY1985-1986, the first year after the Supreme Court’s decision,
compared to SY1984-1985. According to a tabulation for the period of SY1979-1980 through
SY2004-2005 that was prepared for a National Assessment of Title I report published in 2007,54
private school student participation in Title I-A fel from approximately 184,500 students served
in SY1984-1985 to 127,900 students in SY1985-1986, a reduction of 31%. The estimated number
of private school participants in Title I-A recovered somewhat in succeeding years, but remained
below the SY1984-1985 level each year until SY1997-1998, when it rose to 188,194 students.
During its consideration of ESEA reauthorization legislation in 1987-1988 (the Augustus F.
Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of
1988 [Hawkins-Stafford Act; P.L. 100-297]), Congress attempted to find ways to resolve the
difficulties associated with compliance with the Aguilar v. Felton decision. Some expressed
concern that the coalition of public and private school interest groups and associations that had
historical y supported Title I-A and other federal aid to elementary and secondary education
might be broken apart over the new barriers to serving private school students in these programs.
Concern was expressed over the SY1985-1986 reduction in private school students served under
Title I-A, as wel as the increased costs of serving these students—which reduced the funds
available to serve al students, public and private.55

52 M. Bruce Haslam and Daniel C. Humphrey, Chapter 1 Services to Religious-School Students. A Supplemental
Volum e to the National Assessm ent of the Chapter 1 Program , pp. iii and 21.
53 M. Bruce Haslam and Daniel C. Humphrey, Chapter 1 Services to Religious-School Students. A Supplemental
Volum e to the National Assessm ent of the Chapter 1 Program .
54 Stephanie Stullich, Elizabeth Eisner, and Joseph McCrary, National Assessment of Title I Final Report, Volume I:
Im plem entation, prepared by the Policy and Program Studies Service, Office of Planning, Evaluation and Policy
Development for the U.S. Department of Education, Institute of Education Sciences, October 2007, Exhibit B-1, p. 155,
https://ies.ed.gov/ncee/pdf/20084012_rev.pdf (hereafter referred to as “ Stephanie Stullich, Elizabeth Eisner, and Joseph
McCrary, National Assessm ent of Title I Final Report Volum e I: Im plem entation”).
54 M. Bruce Haslam and Daniel C. Humphrey, Chapter 1 Services to Religious-School Students. A Supplemental
Volum e to the National Assessm ent of the Chapter 1 Program , especially pp. 3-5.
55 M. Bruce Haslam and Daniel C. Humphrey, Chapter 1 Services to Religious-School Students. A Supplemental
Volum e to the National Assessm ent of the Chapter 1 Program , especially pp. 3-5.
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The most significant new provision for serving private school students that was adopted in the
Hawkins-Stafford Act was the authorization of specific appropriations to pay the additional
capital expenses of serving private school students under Title I-A as a result of the Aguilar v.
Felton decision. Capital expenses were defined as including costs for purchasing, leasing, or
renovating facilities, transportation, insurance, maintenance, or similar goods and services. These
funds were to be al ocated to the states in proportion to their relative number of private school
students served under Title I-A in SY1984-1985. SEAs were then to distribute these funds to their
LEAs with greatest need for assistance. The special capital expenses appropriation was initial y
funded for FY1989 at $19,760,000, rising gradual y to $41,434,000 in FY1995 and then to
$41,119,000 in each of FY1997 and FY1998.
The Second Felton Decision: Agostini v. Felton (1997)
On June 23, 1997, in deciding the case of Agostini v. Felton, the Supreme Court reversed the
1985 Aguilar v. Felton ruling.56 The Court abandoned the presumption that placing public
employees within religious institutions inevitably results in either indoctrination, excessive
entanglement, or a symbolic union between government and religion. The Court also abandoned
the rule, established earlier in Aguilar v. Felton, that “any and al public aid that directly aids the
educational function of religious schools impermissibly finances religious indoctrination.”57
Following the Agostini v. Felton decision, it became somewhat less costly and difficult to provide
Title I-A services to eligible children attending private schools. LEAs could return to the practice
of sending public school teachers into religiously affiliated private schools to instruct pupils
eligible for Title I-A services. Funding for Title I-A capital expenses to help pay the extra costs of
serving private school students under the limitations of the Aguilar v. Felton decision gradual y
declined after the Agostini v. Felton decision, fal ing to $24,000,000 for FY1999, $12,000,000 for
FY2000, and $6,000,000 for FY2001 (the last year for which this provision was authorized and
funded).58
More Recent Information on the Provision of
Equitable Services to Private School Students Under
the ESEA
The most recent comprehensive information on the provision of equitable services to eligible
private school students under Title I-A, as wel as other ESEA programs, is provided in a pair of
reports published by ED as part of the National Assessment of Title I in 2007, as mandated under
Section 1501 of the ESEA as amended by the No Child Left Behind Act of 2001 (P.L. 107-110).
These reports are the National Assessment of Title I Final Report, Volume I: Implementation,59

56 See CRS Report 97-848 A, The Implications of “Agostini v. Felton” for the Provision of Title I Assistance to
Nonpublic School Children, by David M. Ackerman and Wayne Riddle (hereinafter referred to as “ CRS Report 97-848
A, The Im plications of “Agostini v. Felton” for the Provision of Title I Assistance to Nonpublic School Children”)
(available to congressional clients upon request).
57 See CRS Report 97-848 A, The Implications of “Agostini v. Felton” for the Provision of Title I Assistance to
Nonpublic School Children, p. 13.
58 U.S. Department of Education, Budget Service, appropriations data, various years. When the ESEA was
comprehensively reauthorized by the No Child Left Behind Act (NCLB; P.L. 107-110) in 2002, the authorization for
T itle I-A funding for capital expenses was not included.
59 Stephanie Stullich, Elizabeth Eisner, and Joseph McCrary, National Assessment of Title I Final Report, Volume I:
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and Private School Participants in Programs Under the No Child Left Behind Act and the
Individuals with Disabilities Education Act: Private School and Public School District
Perspectives.60 Both reports based their findings on a national y representative sample of 1,501
private schools and 607 LEAs in which these schools were located for SY2004-2005 and
SY2005-2006. The first report provides summary information, and the second report more
detailed information, on private school student participation in ESEA programs.
According to these reports, of al students participating in Title I-A in SY2004-2005, 87%
participated in schoolwide programs in public schools, 12% participated in targeted assistance
programs in public schools, and 1% were enrolled in private schools.61 The private school
participants in Title I-A constituted an estimated 3% of al students enrolled in private schools.62
The share of students served by Title I-A who were enrolled in private schools was low in part
because of the growth that had occurred in Title I-A public schoolwide programs in the period
between adoption of the 1994 Amendments to the ESEA (Improving America's Schools Act
[IASA;P.L. 103-382]) and SY2004-2005.63 The number of private school students served by Title
I-A in SY2005-2006 was reported as 191,100. In that year, 16% of al private schools in the
sample participated in Title I-A, including 37% of Catholic schools, 7% of other religious
schools, and 6% of nonsectarian schools.64
LEAs serving private school students under Title I-A most often provided instructional services
(87% of LEAs that provided Title I-A services to any private school students), instructional
equipment or materials (65%), professional development for private school teachers (63%), and
parental involvement activities (60%). The services were most often provided primarily by public
school teachers at the private school (49% of LEAs that provided Title I-A services to any private
school students), by third party contract providers at the private school (28%), in computer-

Im plem entation.
60 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and Michael Segeritz, Private
School Participants in Programs Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives. U.S. Department of Education, Office of Planning,
Evaluation and Policy Development, Policy and Program Studies Service, 2007, https://www2.ed.gov/rschstat/eval/
choice/private/report.pdf (hereinafter referred to as “ Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel
Klasik, Daniel Loss, and Michael Segeritz, Private School Participants in Programs Under the No Child Left Behind
Act and the Individuals with Disabilities Education Act: Private School and Public School District Perspectives”).
61 Stephanie Stullich, Elizabeth Eisner, and Joseph McCrary, National Assessment of Title I Final Report Volume I:
Im plem entation, p. 12.
62 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and Michael Segeritz, Private
School Participants in Program s Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives, p. 14.
63 While the schoolwide program was initially authorized in Section 133 of the Education Amendments of 1978 ( P.L.
95-561), it was originally restricted to schools where 75% of more of the student s were from low-income families and
was accompanied by a requirement that T itle I grants to these schools must be matched by a n equivalent amount of
non-federal supplementary funds. Beginning with the Improving America's Schools Act (IASA; P.L. 103-382) in 1994,
the eligibility threshold requirement was reduced to 60% for SY1995-1996 and 50% for SY1996-1997 and thereafter,
and the non-federal matching requirement was dropped. T he eligibility threshold was further reduced to 40% or more
of students from low-income families under the No Child Left Behind Act of 2001 (P.L. 107-110). T he level of
participation in schoolwide programs was low until adoption of the IASA, after which it grew rapidly. T he number of
students served by public schoolwide programs under T itle I-A grew from 7,088,756 in SY1996 -1997 to 17,363,021 in
SY2004-2005.
64 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and Michael Segeritz, Private
School Participants in Program s Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives, p. 12.
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assisted laboratories at the private school (16%), by public school teachers in a public school
(14%), or in mobile vans (10%).65
With respect to al ESEA programs with equitable services provisions, not just Title I-A, the
authors of the Private School Participants in Programs Under the No Child Left Behind Act and
the Individuals with Disabilities Education Act: Private School and Public School District
Perspectives study reported that 44% of al private schools participated in one or more ESEA
programs in SY2004-2005. The rate of participation was much greater for Catholic schools (80%)
than for other religious (28%) or nonsectarian private (25%) schools.66 The rate of participation
by al private schools in ESEA programs was greatest for State Grants for Innovative Programs
(ESEA Title V-A, at that time) and Improving Teacher Quality State Grants (ESEA Title II-A)
(20% for each), Safe and Drug-Free Schools State Grants (ESEA Title IV-A) (19%), and
Education Technology State Grants (ESEA Title II-D) and Title I-A (16% each).67 For ESEA
programs overal , the services most often provided to students and staff of private schools were
professional development for teachers (51%-89% of LEAs serving private school students,
depending on the ESEA program involved) and provision of instructional equipment and
materials (39%-69%, depending on the ESEA program involved).68 The percentage of ESEA
program total funds used to serve private school students was reported as 2% for Title I-A, 3% for
Improving Teacher Quality State Grants, 4% for Education Technology State Grants, 5% for Safe
and Drug-Free Schools State Grants, and 6% for State Grants for Innovative Programs.69
Among private schools that did not participate in any ESEA programs, 58% reported doing so as
a conscious decision not to get involved with federal assistance, while 40% of such schools
reported that they had no knowledge of eligibility for assistance under the ESEA. For Title I-A
specifical y, 50% of schools that did not participate reported that they enrolled no students from
low-income families who resided in public school attendance areas selected to provide Title I-A
services.70
The most recent data on the number of private school students served under Title I-A comes from
two types of sources. First, states are asked to provide this information in the annual ESEA
Consolidated State Performance Reports (CSPR).71 According to the most recent CSPR reports,

65 Stephanie Stullich, Elizabeth Eisner, and Joseph McCrary, National Assessment of Title I Final Report Volume I:
Im plem entation, p. 15; and Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and
Michael Segeritz, Private School Participants in Program s Under the No Child Left Behind Act and the Individuals
with Disabilities Education Act: Private School and Public School District Perspectives, p. 71.
66 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and Michael Segeritz, Private
School Participants in Program s Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives, p. 12.
67 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and Michael Segeritz, Private
School Participants in Program s Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives, p. 12.
68 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Lo ss, and Michael Segeritz, Private
School Participants in Program s Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives, pp. 20-25.
69 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and Michael Segeritz, Private
School Participants in Program s Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives, p. 44.
70 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and Michael Segeritz, Private
School Participants in Program s Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives, p. 18.
71 T hese reports are available at https://oese.ed.gov/offices/office-of-administration/about-us/consolidated-state-
performance-reports/#sy15-16.
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in SY2015-2016 200,651 private school students were served under Title I-A. However, these
data exclude two states. Virginia reported no private school students served, presumably because
private school students are served in that state through a third-party bypass arrangement (although
a similar arrangement applies in Missouri, which did report the number of private school students
served in the state through that arrangement). New York also did not report the number of private
school students served under Title I-A in its CSPRs for SY2015-2016 or any recent previous year.
The second source of recent data consists of three different surveys conducted by ED's National
Center for Education Statistics (NCES) that, on occasion, have gathered information on the
number of private schools and their students who have received Title I-A services. Most recently,
the NCES National Teacher and Principal Survey reported that in SY2017-2018, 24.3% of al
private schools enrolled students who were served by Title I-A, and that 4.0% of al private
school students received Title I-A services.72 Separately, for SY2015-2016 the NCES Private
School Universe Survey reported that 19.4% of al private schools enrolled students who were
served by Title I-A, and that 9.0% of al private school students received Title I-A services.73
Final y, the NCES Schools and Staffing Survey reported that in SY2011-2012 20.8% of al
private schools enrolled students who were served by Title I-A and that 3.7% of al private school
students received Title I-A services.74 Each of these are sample surveys that, on one or more
occasions (but not regularly), collected data on the extent of private school and student
participation in Title I-A. Other ESEA programs were not included, and there is no clear
explanation for the differences in survey results, other than the fact that the data were col ected
for different school years.
Table 1 provides data on the number of students enrolled in private schools who were served
under Title I-A for selected school years between 1975-1976 and 2015-2016 (data for years
before SY1975-1976 are not available).
Table 1. Number of Students Enrolled in Private Schools Who Were Served Under
ESEA Title I-A, Selected School Years
School Year
Number of Private School Students Served
1975-1976
116,218
1979-1980
189,114
1980-1981
213,499
1981-1982
184,084
1982-1983
177,210
1983-1984
190,660
1984-1985
184,532
1985-1986
127,922
1986-1987
137,900
1987-1988
136,618

72 U.S. Department of Education, National Center for Education Statistics, National T eacher and Principal Survey
(NT PS), “Preliminary Private School Restricted-Use Data File,” 2017-2018, https://nces.ed.gov/surveys/ntps/tables/
ntps1718_table_01_s2a.asp.
73 U.S. Department of Education, National Center for Education Statistics, Private Sch ool Universe Survey (PSS),
2015-2016, https://nces.ed.gov/surveys/pss/tables/T ABLE27.asp.
74 U.S. Department of Education, National Center for Education Statistics, Schools and Staffing Survey (SASS),
“Private School Data File,” 2011-2012, https://nces.ed.gov/surveys/sass/tables/sass1112_2013312_s2a_001.asp.
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School Year
Number of Private School Students Served
1988-1989
137,656
1989-1990
151,948
1990-1991
157,360
1991-1992
163,329
1992-1993
171,239
1993-1994
177,243
1994-1995
172,982
1996-1997
167,590
1997-1998
188,194
1998-1999
197,356
1999-2000
183,894
2000-2001
201,572
2001-2002
195,556
2002-2003
183,066
2003-2004
188,617
2004-2005
187,951
2005-2006
191,100
2015-2016a
200,651
Sources:
For SY1975-1976: U.S. Department of Health, Education, and Welfare, U.S. Office of Education, National
Institute of Education, Evaluating Compensatory Education: An Interim Report on the NIE Compensatory Education
Study, Washington, DC, December 30, 1976, p.14, https://babel.hathitrust.org/cgi/pt?id=mdp.39015008170543&
view=1up&seq=7. This study provided data only for grades K-8 because it found that less than 1% of students
served by Title I-A in 1975-1976 were enrol ed in grades 9-12.
For SY1979-1980 through SY2004-2005: Stephanie Stul ich, Elizabeth Eisner, and Joseph McCrary, National
Assessment of Title I, Final Report Volume I: Implementation, prepared by the Policy and Program Studies Service,
Office of Planning, Evaluation and Policy Development for the U.S. Department of Education, Institute of
Education Sciences, October 2007, Exhibit B-1, p. 155, https://ies.ed.gov/ncee/pdf/20084012_rev.pdf. Data were
not col ected for SY1995-1996.
For SY2005-2006: Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and
Michael Segeritz, Private School Participants in Programs Under the No Child Left Behind Act and the Individuals
with Disabilities Education Act: Private School and Public School District Perspectives. U.S. Department of
Education, Office of Planning, Evaluation and Policy Development, Policy and Program Studies Service, 2007, p.
14, https://www2.ed.gov/rschstat/eval/choice/private/report.pdf.
For SY2015-2016: Consolidated State Performance Reports for 2015-2016 (https://oese.ed.gov/offices/office-of-
administration/about-us/consolidated-state-performance-reports/#sy15-16). The Consolidated State
Performance Reports for New York and Virginia for SY2015-2016 do not include data on the number of private
school students served under ESEA Title I-A.
a. Data are not included for New York or Virginia.
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Current Provisions for Equitable Services to Eligible
Private School Students Under the ESEA
The ESEA includes two major sets of provisions related to providing services to eligible students
enrolled in private schools. Title VIII-F-1 (§§8501-8506) contains general provisions regarding a
variety of ESEA programs under which services may be provided to private school students,
while Title I-A, Section 1117 contains provisions specifical y regarding the largest ESEA
program, Education for the Disadvantaged. A smal number of additional ESEA programs have
separate provisions for serving eligible students enrolled in private schools.
Under al ESEA programs with private school student participation provisions, services are
provided to private school students according to the child benefit model, as discussed above in the
context of debates over the original ESEA legislation in 1965. Accordingly, children enrolled in
private schools may benefit from publicly funded services, yet funding for and the provision of
these services remain under public control (i.e., the funds are not provided directly to private
schools).
ESEA programs that provide for services to eligible students enrolled in private schools75 fal into
three categories:
Category 1. Programs to which the general provisions of Title VIII-F-1 fully apply:
 Title I-C (Migrant Education),
 Title II-A (Supporting Effective Instruction),
 Title III-A (English Language Acquisition, Language Enhancement and
Academic Achievement),
 Title IV-A (Student Support and Academic Enrichment Grants),76
 Title IV-B (21st Century Community Learning Centers), and
 Project School Emergency Response to Violence (Project SERV), which is
authorized under Title IV-F-3.77
Category 2. The largest ESEA program, under which private school student participation is
primarily governed by Section 1117, but to which selected provisions of Title VIII-F-1 also apply:
 Title I-A (Education for the Disadvantaged)
Category 3. Additional ESEA programs with separate provisions for participation by eligible
private school students:
 Title II-B-3, (American History and Civics Education),78 and

75 If home schools are considered private schools under state law, home schooled students are eligible to receive
benefits and services provided to private school students.
76 T he program authorized under ESEA T itle IV-A is not currently funded.
77 Other activities authorized under T itle IV-F-3, National Activities for School Safety, are not subject to equitable
participation requirements.
78 T his program does not require the provision of equitable services, but private school students and teachers a re
eligible to participate.
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 Title IV-F-4, §4644 (Jacob K. Javits Gifted and Talented Students Education
Program).79
In addition to statutory language addressing the equitable participation of private school students
in ESEA programs, ED has issued regulations80 and nonregulatory guidance regarding the Title
VIII-F-1 provisions, as wel as regulations81 and nonregulatory guidance82 regarding the equitable
participation requirements that pertain specifical y to Title I-A. Nonregulatory guidance was also
produced on the provision of equitable services under Titles II-A, III, and IV-A.83
The following discussion of equitable participation requirements under Title VIII-F-1 and under
Title I-A is based on statutory requirements and the aforementioned regulations and
nonregulatory guidance promulgated by ED. The first section of this discussion focuses on the
equitable participation requirements under Title VIII-F-1. This is followed by discussion of the
equitable participation provisions that specifical y apply to Title I-A.
Current Provisions for Equitable Participation
Under Title VIII-F-1
As previously discussed, Title VIII-F-I includes equitable participation requirements that apply to
several ESEA programs. This section provides an overview of these requirements that includes
discussion of eligibility to receive services, the provision of services, consultation, expenditures,
complaint resolution, bypass procedures, and additional provisions.

79 Under this program, the Secretary of Education is required to ensure, where appropriate, that equitable services are
provided to students and teachers in private nonprofit elementary and secondary schools (§4644(g)).
80 34 C.F.R. §§299.6-299.9.
81 34 C.F.R. §200.62.
82 U.S. Department of Education, Office of Innovation and Improvement, Office of Non -Public Education, T itle I, Part
A, of the Elementary and Secondary Education Act of 1965, as Amended by the Every Student Succeeds Act:
Providing Equitable Services to Eligible Private School Children, T eachers, and Families, Updated Non -Regulatory
Guidance, Washington, DC, October 7, 2019, https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-
services-guidance-100419.pdf; and U.S. Department of Education, Office of Innovation and Improvement, Office of
Non-Public Education, Non-Regulatory Guidance: Fiscal Changes and Equitable Services Requirements Under the
Elementary and Secondary Education Act of 1965 (ESEA), as Amended by the Every Student Succeeds Act (ESSA),
Washington, DC, November 21, 2016, https://www2.ed.gov/policy/elsec/leg/essa/essaguidance160477.pdf. In addition,
to the extent it is not inconsistent with the latter document, the pre-ESSA non-regulatory guidance contained in T itle
IX, Part E Uniform Provisions, Subpart 1—Private Schools (available at http://www2.ed.gov/policy/elsec/guid/
equitableserguidance.doc) and revised in March 2009 remains applicable.
83 U.S. Department of Education, Office of Innovation and Improvement, Non-Regulatory Guidance for Title II, Part
A: Building System s of Support for Excellent Teaching and Leading , Washington, DC, September 27, 2016,
https://www2.ed.gov/policy/elsec/leg/essa/essatitleiipartaguidance.pdf; U.S. Department of Education, Office of
Innovation and Improvement, Non-Regulatory Guidance: English Learners and Title III of the Elem entary and
Secondary Education Act (ESEA), as Am ended by the Every Student Succeeds Act (ESSA), Washington, DC, September
23, 2016, https://www2.ed.gov/policy/elsec/leg/essa/essatitleiiiguidenglishlearners92016.pdf; and U.S. Department of
Education, Office of Innovation and Improvement, Non-Regulatory Guidance Student Support and Academ ic
Enrichm ent Grants, Washington, DC, October 2016, https://www2.ed.gov/policy/elsec/leg/essa/
essassaegrantguid10212016.pdf.
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Participation in Equitable Services by Private School Children and
Teachers
Section 8501 of the ESEA requires that LEAs (or other grantees under relevant programs) shal
“after timely and meaningful consultation with appropriate private school officials provide to
those children and their teachers or other educational personnel, on an equitable basis, special
educational services or other benefits that address their needs under the program.”84 The
ombudsman designated by an SEA under Section 1117 (see subsequent discussion) also is
required to monitor and enforce the requirements of Section 8501 to help ensure that equitable
services are provided to private school children and staff. In addition, the ombudsman serves as
an SEA’s primary point of contact for private school officials with questions or concerns about
the provision of equitable services under the ESEA.85
The control of funds used to serve eligible private school students—as wel as title to materials,
equipment, and property purchased with those funds—must be with a public agency. The services
may be provided by employees of a public agency, or “through contract by the public agency with
an individual, association, agency, organization, or other entity”86 that is “independent of the
private school and of any religious organization.”87 Al services, benefits, materials, and
equipment provided must be secular, neutral, and nonideological.
The services, benefits, materials, and equipment provided to private school students and staff
must be equitable in comparison to those provided to public school students and staff. These
services must be provided in a timely manner. The expenditures for private school students must
be equal to those for public school students, taking into account the number and educational
needs of the children to be served.
Private school students enrolled in nonprofit elementary and secondary schools, including
religiously affiliated schools, located in the LEA are eligible to receive services.88 However, if an
ESEA program restricts eligibility to a specific group of students (e.g., limited English proficient

84 §8501(a)(1).
85 U.S. Department of Education, Frequently Asked Questions – General Issues Related to Nonpublic Schools, August
2019, Item 7, https://www2.ed.gov/about/inits/ed/non-public-education/files/onpe-faqs-aug2019.pdf (hereinafter
referred to as “ED, FAQs Related to Non-Public Schools”).
86 §8501(d)(2)(A)(ii).
87 §8501(d)(2)(B). If services are delivered by a third party, the service provider must be under the control and
supervision of the LEA and must be independent of the private school. For example, a private school teacher may be
hired to provide services in his or her own school, as long as the teacher is independent of the private school and under
the supervision of the LEA during the time the services are provided. Under the T itle I -A statute (§1117(d)(2)(B)), the
service provider must also be independent of any religious organization. However, current nonregulatory guidance
(U.S. Department of Education, Office of Innovation and Improvement, Office of Non -Public Education, T itle I, Part
A, of the Elementary and Secondary Education Act of 1965, as Amended by the Every Student Succeeds Act:
Providing Equitable Services to Eligible Private School Children, T eachers, and Families, Updated Non -Regulatory
Guidance, Washington, DC, October 7, 2019, https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-
services-guidance-100419.pdf, p. 36) states that “ the Department will no longer enforce, apply, or administer the
specific requirement in ESEA section 1117(d)(2)(B) that an equitable services provider be independent ... of any
religious organization.” ED reached this decision based on the Supreme Court’s ruling in T rinity Lutheran Church of
Columbia Inc. v Comer. For more informatio n about the case, see U.S. Department of Education, “ Selected U.S.
Supreme Court Rulings Related to Private and Home Schools,” https://oese.ed.gov/supreme-court-rulings-related-to-
private-and-home-schools/. ED informed Congress of this decision in a letter dated March 11, 2019 (Letter from Betsy
DeVos, U.S. Secretary of Education, to Honorable Nancy Pelosi, Speaker of the House, March 11, 2019,
https://www2.ed.gov/policy/elsec/guid/secletter/190311.html).
88 Home-school students are eligible to receive services if home schools are considered private schools under state law.
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students), the same restrictions apply to the private school students to be served. Under ESEA
programs other than Title I-A, the LEA responsible for providing equitable services is determined
based on the location of the school in which the student is enrolled, rather than being based on
where the student lives. In other words, an LEA is obligated to provide equitable services to
eligible students enrolled in private schools that are located within the LEA's geographic
boundaries. In contrast, and as discussed further below, the LEA responsible for providing
equitable services to private school students under Title I-A is the LEA in which the private
school student resides, not the one in which his or her private school is located.89
Consultation90
For purposes of determining which services wil be provided to private school students,
consultation involves communication between LEAs and private school officials on relevant
issues related to equitable participation. An LEA is obligated to start the consultation process with
school officials representing al private schools located within its boundaries. Consultation must
occur before the LEA makes any decision that affects opportunities for equitable participation.
The consultation requirement cannot be met by an LEA solely on the basis of offering to provide
services. An LEA is required to discuss the provision of the services and the needs of private
school students and teachers, and must have input from private school officials regarding these
issues.
Consultation must be both meaningful and timely. Meaningful means that al required topics are
discussed, including the following:
 how the children’s needs wil be identified;
 what services wil be offered;
 how, where, and by whom services wil be provided;
 how services wil be assessed;
 the size and scope of the services to be provided;
 how and when the LEA wil make decisions about service delivery, including
consideration of the views of private school officials on the provision of services
via third-party providers;
 whether services wil be provided directly or through a third-party contractor;
and
 whether services wil be provided by creating a pool of funds for serving children
in private schools, or funds available to provide services wil be determined on an
individual school basis.
The goal in discussing these topics is that LEA and private school officials wil reach agreement
on how to provide “equitable and effective programs for eligible private school children.”
Timely consultation requires that advance notice be given to private school officials regarding the
start of the consultation process and that the process must begin with sufficient time for services
to be provided at the start of the school year. Documentation that appropriate, meaningful

89 Students with disabilities who are enrolled in a private school by their LEA of residence for the purpose of receiving
a free appropriate public education are eligible to receive equitable services under the programs covered by Section
8501 of the ESEA. T he LEA in which the private school is located is responsible for providing these equitable services.
90 Consultation requirements are included in Section 8501(c).
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consultation has occurred must include a written affirmation to this effect that is signed by
officials of each participating private school.91
Expenditures92
Expenditures for equitable services to private school students and staff must be equal to the
expenditures for the public school program, taking into account the number and educational needs
of the children to be served. Funds to serve eligible private school students must be obligated in
the same fiscal year as the funds are received by an LEA or other public grantee. These
determinations are often made based on the relative enrollments of public and private school
students. Calculations based on relative enrol ments, however, assume that these numbers
accurately reflect the needs of students and teachers in public and private schools. LEAs may also
use another factor such as measures of student family poverty or low-income levels in making
expenditure decisions, but a decision cannot be based solely on poverty because both educational
need and the number of students must be taken into account. LEAs should consult with private
school officials regarding the methodology used to determine expenditures.
An LEA has the option to create a pool of funds under al programs covered by Title VIII-F-1 for
serving al of the eligible students enrolled in private schools within the LEA, rather than
calculating funding and providing services on a school-by-school basis. Only the LEA may
obligate and expend federal education funds on behalf of private school students and staff. The
control of program funds and ownership of any materials purchased with those funds rests with
the LEA.
Participation in a program by public school and private school students and staff is general y
considered to be equitable if the following conditions are met:93
 the LEA spends an equal amount of funds to serve similar public and private
school students and staff, taking into account the number and educational needs
of those students and staff;
 the LEA provides services and benefits to private school students and staff that
are equitable in comparison to the services and benefits provided to public school
students and staff;
 the LEA assesses and addresses student and staff needs on a comparable basis;
 the LEA provides, in the aggregate, approximately the same amount of services
to public school students and staff as it does to private school students and staff;
 the LEA provides public school and private school students and staff with equal
opportunities to participate in program activities;

91 T he written affirmation must include an option for private school officials to indicate that they do not believe timely
and meaningful consultation occurred or that they do not believe the program design is equitable for eligible private
school children. If private school officials do not provide such affirmation within a “reasonable period of time,” the
LEA is required to forward the documents to the SEA, indicating that the consultation has, or attempts at consultation
have, occurred.
92 Requirements for expenditures are included in Section 8401(a)(4).
93 U.S. Department of Education, Office of Innovation and Improvement, Office of Non-Public Education, Title IX,
Part E Uniform Provisions, Subpart 1—Private Schools, Washington, DC, revised March 2009, http://www2.ed.gov/
policy/elsec/guid/equitableserguidance.doc, pp. 14-15.
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 the LEA provides private school students and staff with an opportunity to
participate in services that provide reasonable promise for participating students
to meet academic standards; and
 the LEA provides different benefits to private school students and teachers if
their needs are different than those of public school students and staff. While
services may differ, they must be al owable services under the particular ESEA
program for which services are being provided.
Complaint Resolution94
Private school officials may file complaints if they believe the consultation requirements
discussed above have not been met by LEA officials. If the private school officials demonstrate
that the consultation requirements have not been met, they may request that services be provided
by the SEA, either directly or through contracts with public or private agencies, organizations,
and institutions.95
Separately, procedures are established in Section 8503 under which parents, teachers, and other
interested individuals may submit complaints concerning potential violations of the ESEA
provisions for serving private school students to SEAs. An SEA must issue a written resolution
within 45 days following the receipt of a complaint. SEA actions on these complaints may be
appealed to the U.S. Secretary of Education (hereinafter referred to as the Secretary).96
Bypass Procedures97
Under Sections 8502 and 8504, there is also a formal bypass system by which the Secretary
arranges for the provision of equitable services directly to private school students and staff
through a third-party provider in instances where equitable services are not provided to eligible
private school students and staff. A bypass could be implemented due to state constitutional
prohibitions on serving children in private schools or to the failure or unwil ingness of SEAs,
LEAs, or other public agencies to comply with the ESEA’s private school participation
requirements.
Under a bypass, the requirement for the SEA or LEA to serve eligible private school students is
waived, and the Secretary arranges for the provision of services to eligible private school
students, teachers, or other educational staff. Once implemented, a bypass remains in effect until
the Secretary determines that there wil no longer be any failure or inability of the SEA or LEA to
meet the ESEA’s private school participation requirements. Bypass arrangements for certain
ESEA programs have been used for several years in Missouri and Virginia.98

94 Requirements for complaint resolution are included in Sections 8501(c)(6) and 8503.
95 §8501(c)(6).
96 Appeals must be submitted to the Secretary not later than 30 days after the SEA resolves the complaint or fails to
resolve the complaint within the 45-day time limit.
97 Requirements for bypass procedures are included in Sections 8502 and 8504.
98 For more information, see 64 Federal Register 30186-30188, June 4, 1999.
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Additional Provisions
Related to the issue of equitable participation, Section 8505 states that “nothing in this Act shal
be construed to authorize the making of any payment under this Act for religious worship or
instruction.”
Section 8506 states that nothing in the ESEA shal be construed to “permit, al ow, encourage, or
authorize any Federal control over any aspect of any private, religious, or home school.” Further,
statutory language states that nothing in the ESEA “shal be construed to affect any private school
that does not receive funds or services under this Act,” and that students who attend private
schools that do not receive funds or services under the ESEA cannot be required to participate in
any assessments “referenced in this Act.” In addition, statutory language specifical y states that
nothing in the ESEA should be constructed to require any SEA or LEA receiving ESEA funds to
“mandate, direct, or control the curriculum” of a private or home school.
Current Provisions for Equitable Participation
Under Title I-A, Section 1117
Provisions for equitable services to eligible private school students and staff under the program
for Education of the Disadvantaged authorized by ESEA Title I-A are found in Section 1117. In
many ways, the equitable participation requirements under Title I-A are similar to those under
Title VIII-F-1, and there are a number of cross-references between provisions in Section 1117 of
Title I-A and Title VIII-F-1. For example, as discussed previously, each SEA must designate an
ombudsman to monitor and enforce the requirements of Section 1117 as wel as Title VIII-F-1.
After timely and meaningful consultation with private school officials, LEAs are required to
provide eligible children, on an equitable basis, services and other benefits under Title I-A that
address their needs, and must ensure that teachers and families of the children participate on an
equitable basis in services and activities related to parent involvement.99 Similar to the
requirements of Title VIII-F-1, the services, benefits, materials, and equipment provided must be
secular, neutral, and nonideological. Equitable services must be provided in a timely manner and
may be provided through a third-party contractor. The control of public funds and materials
purchased with those funds must remain with a public agency. There are also complaint process
and bypass provisions similar to those of Title VIII-F-1. The consultation process under Section
1117 differs somewhat in that consultation must also include a discussion of parental involvement
and professional development.
Eligible Private School Students
An area where the Title I-A provisions differ substantial y from those for other ESEA programs is
with respect to which private school students are eligible for services. Private school students
must reside (as opposed to attend a private school located) in a participating public school
attendance area100 to be eligible for services provided under Title I-A. That is, the LEA in which

99 Parent involvement requirements are included in Section 1116. If an LEA reserves funds from its allocation for
Section 1116, it must provide for the equitable participation of parent involvement activities in private schools. T his
can be determined based on the proportion of private school students from low-income families residing in the public
school attendance area relative to all students from low-income families residing in the public school attendance area.
100 An eligible public school attendance area (generally a school) is identified by an LEA based on data on students
from low-income families used to determine which school attendance areas will receive T itle I -A funds. For more
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the student resides is responsible for providing services to the child even if the student attends a
private school in another LEA.101
Reservation of Funds for Equitable Services
The process for determining the amount of Title I-A funds that an LEA must reserve for equitable
services is related to the process by which Title I-A funds are al ocated to public schools. Title I-A
funds are al ocated to SEAs based on a variety of factors, the most important of which is the
estimated number of school-age (5-17 years old) children from poor families based on the Census
Bureau's standard definition of poverty.102 After authorized reservations, state total grants are then
al ocated to LEAs on the same basis. Within LEAs, funds are al ocated for use in individual
public schools—and to serve eligible students who reside in the attendance areas of those public
schools but attend private schools—based on the number of students in low-income families
enrolled in those schools. Census poverty estimates are rarely available at the level of public
school attendance areas, and LEAs must use the best available proxy measure of low family
income to select schools at which to provide services and al ocate funds among them.
Historical y, the proxy measure most often used for this purpose has been students eligible for
free and reduced price lunch (FRPL) under the National School Lunch Program (NSLP). While
using this measure of the number of children from low-income families has always had
limitations, it has become increasingly complicated in recent years due to the implementation of
the Community Eligibility Provision (CEP) under the NSLP. Schools participating in CEP no
longer identify children as being from low-income families in the same way as in past years. As a
result, a number of adjustments or alternative proxy measures of low family income are currently
being considered and implemented for Title I-A purposes by states and LEAs across the nation,
consistent with the Title I-A statute, regulations, and nonregulatory guidance.103 Whatever
measure of low income is selected by an LEA, public school attendance areas with the highest
percentages of students from low-income families are selected to provide Title I-A services.104
An LEA, in consultation with private schools, must obtain the best available data on private
school students from low-income families residing in public school attendance areas within the
LEA. In calculating the number of school-age children from low-income families who reside in
Title I-A (public) school attendance areas and are enrolled in private schools, LEAs may use the
same measure of low income as used for public school children or one of the following
alternatives:

information on how LEAs make this determination, see CRS Report R44461, Allocation of Funds Under Title I-A of
the Elem entary and Secondary Education Act, p. 16; and CRS Report R46600, ESEA: Title I-A Poverty Measures and
Grants to Local Education Agencies and Schools, p. 14-18.
101 If this is the case, the LEA responsible for the child can choose to reimburse the LEA in which the private school is
located for the provision of services rather than providing the services itself. See U.S. Department of Education, Office
of Innovation and Improvement, Office of Non -Public Education, Title I, Part A, of the Elem entary and Secondary
Education Act of 1965, as Am ended by the Every Student Succeeds Act: Providing Equitable Services to E ligible
Private School Children, Teachers, and Fam ilies, Updated Non -Regulatory Guidance, Washington, DC, October 7,
2019, p. 32, https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-services-guidance-100419.pdf.
102 See CRS Report R46600, ESEA: Title I-A Poverty Measures and Grants to Local Education Agencies and Schools.
103 For analysis of this and related issues, see CRS Report R46600, ESEA: Title I-A Poverty Measures and Grants to
Local Education Agencies and Schools.
104 LEAs may choose to focus services only on cert ain grade levels (e.g., only elementary schools) as long as all school
attendance areas in which 75% or more of school-age children are from low-income families are served.
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 the results of a survey (that, to the extent possible, protects the identity of
families of private school students);
 applying the percentage of public school students who are from low-income
families in the public school attendance areas to the number of private school
students residing in those areas (e.g., if the low-income rate is 60% for public
school students and a private school has 200 students, 60% of the 200 students
would be considered low income); or
 comparable data for private school students from another source that can be
equated or correlated to the data used for public school students residing in Title
I-A school attendance areas (i.e., establishing a proportional relationship between
two sources of data on public school children and applying the same ratio to a
known source of data for private school students).105
According to a report prepared as part of the National Assessment of Title I in 2007, 73% of
LEAs that served private school students under Title I-A reported that they used the same method
to determine the number of students from low-income families and residing in Title I-A (public)
school attendance areas who are enrolled in private schools as they used to determine the number
of such students enrol ed in public schools.106 However, it should be noted that this survey was
conducted before the establishment of the CEP and the subsequent activity by many states and
LEAs to develop alternatives to FRPL data as measures of students from low -income families
enrolled in public schools. Such alternatives may not be available for private school students.107
For purposes of al ocating funds for equitable services to students enrol ed in private schools,
LEAs are required to discuss with private school officials the method or data sources that wil be
used to determine the number of private school children from low -income families that reside in
each school attendance area of the LEA. LEAs may determine the share of Title I-A funds used to
serve eligible private school students annual y or once every two years.
Based on the total number of children from low-income families residing in each school
attendance area who attend either public or private schools, the LEA calculates the total amount
of funds available for each area. The amount reserved for equitable participation is determined by
multiplying the per-pupil al ocation for the LEA under Title I-A by the number of private school
students from low-income families who reside in the attendance area. This calculation is to apply
to the LEA’s total Title I-A grant per pupil, before deduction of any funds off the top of the

105 §1117(c)(1). According to the ED policy guidance document, Local Educational Agency Identification and
Selection of School Attendance Areas and Schools and Allocation of Title I Funds to Those Areas and Schools (p. 16),
“T o obtain a count of private school children, an LEA may use: (1) T he same poverty data it uses to count public
school children. (2) Comparable poverty data from a survey of families of private school students that, to the extent
possible, protects the families’ identity. T he LEA may extrapolate data from the survey based on a representative
sample if complete actual data are not available. (3) Comparable data from a different source, such as scholarship
applications, so long as the income level for both sources is generally the same. (4) Proportional data based on the
poverty percentage of each public school attendance area applied to the total number of private school children who
reside in that area. (5) An equated measure of low income correlated with a measure of low income used to count
public school children.”
106 Gayle S. Christensen, Sarah Cohodes, Devin Fernandes, Daniel Klasik, Daniel Loss, and Michael Segeritz, Private
School Participants in Program s Under the No Child Left Behind Act and the Individuals with Disabilities Education
Act: Private School and Public School District Perspectives, p. 99.
107 See CRS Report R46600, ESEA: Title I-A Poverty Measures and Grants to Local Education Agencies and Schools.
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LEA’s grant for purposes such as administration, parental involvement, services to neglected and
delinquent or homeless children and youth, or LEA-wide initiatives.108
The LEA may, optional y, create a pool of funds for serving al of the eligible students residing in
Title I-A school attendance areas who are enrolled in a number of private schools, rather than
calculating funding and providing services on a school-by-school basis. Such pooling of funds to
serve eligible private school students may be applied to multiple private schools in which students
residing in a single LEA are enrolled, or to funds from multiple LEAs of residence for students
enrolled in individual private schools.
Provision of Title I-A Services
As noted earlier, Title I-A services may be provided for public schools in one of two ways. If 40%
or more of the students at a public school selected to participate in Title I-A are from low-income
families, the Title I-A funds are be used to conduct a schoolwide program aimed at improving
instruction for al of the school’s students. Other selected public schools conduct targeted
assistance school programs, under which individual students deemed to be the most at risk of
failing to meet state educational standards, regardless of family income, are selected to receive
services funded under Title I-A. For private schools whose students are selected to receive Title I-
A services, only the targeted assistance school model is authorized.
Services are provided to the lowest achieving students who reside in the attendance area of a
public school participating in Title I-A and are enrolled in the participating private schools,
regardless of family income. Thus, for private school students to receive services, a student must
reside in a participating public school attendance area for purposes of Title I-A, and the student
must be identified by the private school as failing, or most at risk of failing, to meet academic
achievement standards based on “multiple, educational y related, objective criteria.” In
determining these criteria, the LEA must consult with private school officials. Private school
students served under Title I-A must be held to high academic standards. LEA and private school
officials must consult on what constitutes annual progress for students served under the Title I-A
program. For example, they must consult about the use of a state assessment or an alternative
assessment to gauge student progress. It may not be appropriate, however, to expect private
school students to meet state standards, especial y if the private school’s curriculum is not aligned
with the standards. The LEA must modify the program for private school students if expected
annual progress, based on the agreed upon measure, is not made.
Equitable Participation and Direct Federal Aid to
Private Schools
Under the ESEA equitable participation requirements included in Title I-A, Section 1117 and Title
VIII-F-1, a nonpublic school whose students and teachers receive equitable services is not
considered a recipient of federal financial assistance.109 Under the ESEA, equitable participation
programs are operated for the benefit of students in private schools rather than for the benefit of
the private schools themselves. The LEA or SEA providing equitable services is responsible for
ensuring there is no discrimination with respect to administering the federal program.

108 After a total amount for services to eligible private school students is calculated, based on the total T itle I-A grant
per child from a low-income family in the LEA, any necessary funds to administer equitable services for eligible
private school students may be deducted from the total amount available for such services.
109 ED, FAQs Related to Non-Public Schools.
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If, however, a private school receives a grant or subgrant of federal funds to administer a federal
education program, the private school would be considered a recipient of federal financial
assistance. Such a school is subject to the “federal civil rights laws enforced by the Department’s
Office for Civil Rights prohibiting discrimination based on race, color, national origin, sex,
disability, and age and is subject to the Department’s jurisdiction for purposes of enforcing those
laws.”110 ED notes in its guidance that such private schools may also be subject to federal laws
administered by other federal agencies.111
Other ESEA Provisions Focused on Private Schools
In addition to equitable services provisions, ESEA, Section 8506 includes provisions that are
focused specifical y on private, religious, and home schools.112 The provisions related to home
schools apply regardless of whether a home school is considered a home school or a private
school under state law.
Under Section 8506(a), statutory language states that nothing in the ESEA shal be considered to
affect any private school that does not receive funds or services under the ESEA. In addition,
Section 8506(a) states that students attending a private school that is not receiving funds or
services under the ESEA shal not be required to participate in any assessment referenced in the
ESEA (e.g., reading and mathematics assessments required for specific grades under Title I-A).
Section 8506(b) states that nothing in the ESEA shal be considered to affect a home school. It
also states that home schooled students are not required to participate in any assessment
referenced in the ESEA.
Section 8506(c) states that nothing in the ESEA shal be considered to “permit, al ow, encourage,
or authorize” any federal control over any aspect of any private, religious, or home school. At the
same time, private, religious, and home schools are not prohibited from participating in ESEA
programs or services.
Section 8506(d) states that nothing in the ESEA shal be considered to require any SEA or LEA
that receives ESEA funds to “mandate, direct, or control the curriculum” of a private school or a
home school. ESEA funds are prohibited from being used for such purposes.
Equitable Services Outside of the ESEA
Equitable service provisions have been included in several non-ESEA federal elementary and
secondary education programs. For example, the Individuals with Disabilities Education Act
(IDEA) includes equitable services provisions for elementary and secondary students with
disabilities who are parental y placed in private schools. Equitable participation requirements
were included in the Immediate Aid to Restart School Operations program (hereinafter referred to
as the “Restart School Operations program”) enacted in response to the Gulf Coast hurricanes of
2005. More recently, equitable services provisions were included in the federal education
assistance provided in response to the national emergency related to COVID-19 declared by
President Trump on March 13, 2020.113 This section provides an overview of these provisions.

110 ED, FAQs Related to Non-Public Schools, Item 11.
111 ED, FAQs Related to Non-Public Schools, Item 11.
112 Section 8505 specifically prohibits the use of any payment under the ESEA for religious worship or instruction.
113 T he White House, “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease
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IDEA Parentally Placed Private School Children with Disabilities114
The IDEA requires LEAs to provide for the participation of parental y placed private school
children with disabilities in programs carried out under the IDEA, Part B Grants to States
program.115 These are children whose parents opt to place them in a private school (in contrast,
some children with disabilities are placed in private schools by an LEA when it is determined a
public school cannot meet the child’s needs). To the extent consistent with the number and
location of parental y placed private school children with disabilities, under the IDEA, “provision
is made for the participation of those children”116 in Part B by providing special education and
related services to such children in accordance with the requirements of IDEA Section 612(a)(10).
LEAs are required to use a proportionate amount of their IDEA Part B funds to provide special
education and related services to such students (referred to as the proportionate share). The
formula for determining the proportionate share is based on the number of eligible parental y
placed children with disabilities attending private schools in the LEA relative to the total number
of eligible public and private school children with disabilities in the LEA’s jurisdiction.117 In
determining the number of parental y placed private school children with disabilities, the IDEA
requires that LEAs conduct child find activities to identify, locate, and evaluate parental y placed
private school students with disabilities.118 The funds used to conduct child find activities,
including student evaluations, may not be deducted from the proportionate share of IDEA Part B
funds available to provide equitable services to parental y placed private school children with
disabilities.119
The IDEA requires that timely and meaningful consultation occur with respect to the provision of
special education and related services for parental y placed private school children with
disabilities.120 An LEA must consult with private school representatives and parents of parental y
placed private school children with disabilities during the design and development of special
education and related services for such children. As part of the consultation process, the parties
must discuss the following:
how, where, and by whom special education and related services will be provided for
parentally placed private school children with disabilities, including a discussion of types
of services, including direct services and alternate service delivery mechanisms, how such

(COVID-19) Outbreak,” March 13, 2020, https://www.whitehouse.gov/presidential-actions/proclamation-declaring-
national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/; also at U.S. President (T rump),
“Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID–19) Outbreak,” 85 Federal
Register 53, March 18, 2020.
114 IDEA, §612(a)(10)(A). For more information about IDEA Part B, see CRS Report R41833, The Individuals with
Disabilities Education Act (IDEA), Part B: Key Statutory and Regulatory Provisions.
115 An LEA may also refer a child with disabilities to a private school. When this occurs, the LEA is responsible for the
costs associated with the private school education, and the student is entitled to receive all the services necessary to
provide a free appropriate public education (IDEA Part B, §612(a)(10)(B)).
116 IDEA §612(a)(10)(A)(i).
117 IDEA, §612(a)(10)(i).
118 IDEA, §612(a)(3) and (10). T he LEA is also required to identify children with disabilities who are homeless or
wards of the state through child find.
119 IDEA, §612(a)(10)(A)(ii)(IV).
120 IDEA, §612(a)(10(A)(iii).
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services will be apportioned if funds are insufficient to serve all children, and how and
when these decisions will be made.121
Similar to the provision of equitable services under the ESEA, the special education and related
services provided to children with disabilities may be provided by the LEA or through a contract
with a third-party entity.122 The LEA must always control the IDEA funds used to provide
services to such students and must hold the titles to al materials, equipment, and property
acquired with the IDEA funds.123 The services provided must be secular, neutral, and
nonideological.124
Children with disabilities enrolled in public schools or placed in a private school by an LEA are
entitled to receive al services necessary to ensure that they receive a FAPE.125 An LEA’s
obligations to provide services to parental y placed private school children with disabilities,
however, are not the same as those for children with disabilities attending public schools or
children with disabilities who have been placed in a private school by the LEA.126 No parental y
placed private school child with a disability has a right to receive some or al of the special
education or related services that the child would be entitled to receive if the child attended a
public school or were placed in a private school by an LEA provided that the LEA makes
available a FAPE for children with disabilities.127 According to ED:
With this in mind, it is possible that some eligible parentally -placed students with
disabilities will not receive any services while others will receive them. For those who do
receive services, the amount of services may also be different from what they would receive
if enrolled in a public school. It is important to note that nothing in IDEA requires a private
school to administer any portion of the law.128
Restart School Operations Program
Division B, Title IV of the FY2006 defense appropriations act (P.L. 109-148) provided $1.6
bil ion to meet the educational needs of individuals and institutions affected by the hurricanes in
the Gulf of Mexico in 2005. Of these funds, $750 mil ion was appropriated for the Restart School
Operations program. This program, authorized in Section 102 of Title IV-A, provided funds to
school administrators and personnel to restart school operations, reopen schools, and re-enroll
students in elementary and secondary schools in LEAs and nonpublic schools in Louisiana,

121 IDEA, §612(a)(10)(A)(iii)(IV).
122 IDEA, §612(a)(10)(A)(vi)(I).
123 IDEA, §612(a)(10)(A)(vii).
124 IDEA, §612(a)(10)(A)(vi)(II).
125 IDEA, §612(a)(10)(B). As defined in IDEA Section 602(9), FAPE means “special education and related services
that—

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 614(d).”
126 IDEA, §612(a)(10)(C).
127 With respect to Section 612(a), FAPE must be “available to all children with disabilities residing in the state
between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from
school” with some except ions (IDEA, §612(a)(1)).
128 U.S. Department of Education, Frequently Asked Questions—General Issues Related to Non-Public Schools, August
2019, Item 8, https://www2.ed.gov/about/inits/ed/non-public-education/files/onpe-faqs-aug2019.pdf.
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Mississippi, Alabama, and Texas that served an area in which a major disaster was declared in
accordance with Section 401 of the Stafford Act129 in response to Hurricane Katrina or Hurricane
Rita.
The Secretary was authorized to make payments to SEAs based on criteria the Secretary deemed
appropriate, taking into account the number of public and private school students who were
enrolled during SY2004-2005 in elementary and secondary schools that were closed as a result of
Hurricane Katrina or Hurricane Rita. SEAs were required to make payments to LEAs and reserve
funds to provide services and assistance to nonpublic schools based on the number of school-aged
children served by the LEA or nonpublic school during SY2004-2005, the severity of the impact
of the hurricanes on the LEA or nonpublic school, and the extent of the needs of the LEA or
nonpublic school. In addition, the amount of funding reserved to provide services and assistance
to nonpublic schools within each state was required to be proportional to the number of nonpublic
schools in relation to the total number of schools in the state. If funds made available to provide
services and assistance to nonpublic schools remained unobligated 120 days after the enactment
of P.L. 109-148, such funds could then be used to provide services or assistance to LEAs or
nonpublic schools.
Eligible nonpublic schools had to be accredited or licensed or otherwise operating in accordance
with state law and had to be in existence prior to August 22, 2005. The educational services and
assistance provided to eligible nonpublic schools was required to be equitable in comparison to
the educational services and other benefits provided for public school students and had to be
provided in a timely manner. The services or assistance provided, including equipment and
materials, had to be secular, neutral, and nonideological. Control of funds for the services and
assistance provided to a nonpublic school and title to materials, equipment, and property
purchased with such funds was required to be in a public agency. A public agency was required to
administer such funds, materials, equipment, and property and to provide for such services
directly or contract with a public or private entity for the provision of the services.
An LEA or nonpublic school receiving services or assistance from the SEA could use such
services or assistance for several al owable uses, such as recovery of student and personnel data,
replacement of school district information systems, reasonable transportation costs, rental of
mobile educational units, initial replacement of instructional materials and equipment, and
initiating and maintaining education and support services. The Secretary was permitted to
approve other activities that were related to the purpose of the program. For example, the
Secretary approved the use of funds to reimburse nonpublic schools under the “limited
emergency circumstances related to the recent hurricanes” for costs previously incurred in
contracting for or providing services that were needed to restart school operations. However, such
services had to be secular, neutral, and nonideological (e.g., reimbursement for the cleanup of
buildings not used primarily for “inherently religious purposes”).130
COVID-19 Pandemic-Related Education Assistance
From March 2020 through March 2021, three laws providing increasing levels of federal funding
for elementary, secondary, and postsecondary education were enacted in response to the COVID-
19 national emergency. On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security

129 42 U.S.C. §§5121-5207. For more information, see CRS Report R46379, Emergency Authorities Under the National
Em ergencies Act, Stafford Act, and Public Health Service Act.
130 U.S. Department of Education, Allowable Uses of Restart Funds for Private Schools, April 24, 2006, Item 9,
http://www2.ed.gov/katrina/proginfo/allowable-uses.doc.
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Act (CARES Act; P.L. 116-136) was signed into law. The act included the Education Stabilization
Fund (ESF), which was created “to prevent, prepare for, and respond to coronavirus, domestical y
or international y.” The ESF is composed of three emergency relief funds: (1) a Governor’s
Emergency Education Relief (GEER) Fund, (2) an Elementary and Secondary School Emergency
Relief (ESSER) Fund, and (3) a Higher Education Emergency Relief Fund (HEERF).131 On
December 27, 2020, the Consolidated Appropriations Act, 2021 (CAA; P.L. 116-260) was
enacted. Division M of the act is the Coronavirus Response and Relief Supplemental
Appropriations Act, 2021 (CRRSAA). It provided appropriations for the GEER Fund, ESSER
Fund, and HEERF. The Secretary was required to reserve funds under the GEER Fund for the
Emergency Assistance to Non-Public Schools (EANS) program. On March 11, 2021, President
Biden signed into law the American Rescue Plan Act of 2021 (ARPA; P.L. 117-2), an FY2021
budget reconciliation measure developed in response to the COVID-19 pandemic.132 It provided
mandatory appropriations for the ESSER Fund, EANS, and HEERF.133
Equitable participation requirements were included in the CARES Act, CRRSAA, and ARPA for
ESF programs that provided funds for elementary and secondary education. However, the specific
equitable participation requirements differed across the three acts.
CARES Act
An LEA that receives funds under the GEER Fund or the ESSER Fund is subject to equitable
services requirements. More specifical y, LEAs receiving such funds are required to provide
equitable services to students and teachers in nonpublic schools, as determined in consultation
with representatives of nonpublic schools, in the same manner as Section 1117 of the ESEA.
After reserving the required amount of funding to provide services for nonpublic school students
and teachers, the LEA is then required to provide services that are equitable in comparison to
services provided to public school students and teachers. Services provided to nonpublic school
students and teachers must be provided in a timely manner. Such services, including materials and
equipment, must be secular, neutral, and nonideological.
ED’s initial interpretation of this provision indicated that only a portion of the Section 1117
provisions applied. Nonbinding guidance from ED134 indicated that the determination of the share
of funds available to serve nonpublic school students from GEER Fund and ESSER Fund grants
received by LEAs should be based on total enrollment in nonpublic schools located in the LEA.
The guidance explained that al public school students in the LEA are eligible to be served under
the GEER Fund and ESSER Fund. That is, the programs are not limited to serving low-income
public school students, so the required equitable services should not be limited to low-income
nonpublic school students. In practice, this means that LEAs would determine the amount of
funding to reserve to provide services to nonpublic school students and teachers based on the total
number of nonpublic school students enrolled in the LEA relative to total public and nonpublic
school enrollment. For some LEAs, this may result in them reserving a substantial y larger
percentage of the funds they received under the GEER Fund or ESSER Fund than they would
have reserved if the calculation had been based only on the number of eligible low -income

131 T hese are the acronyms utilized by the Department of Education in ESF-related materials.
132 See the House Budget Committee report (H.Rept. 117-7) for a discussion of the context surrounding ARPA.
133 ESF appropriations provided under the CARES Act and CRRSAA were discretionary appropriations.
134 ED has removed the guidance from its website, as the guidance does not match the Interim Final Rule that ED
published in July. T he guidance is available to congressional clients from the authors of this report upon request.
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nonpublic school students relative to the total number of eligible low-income nonpublic and
public school students.135
Some Members of Congress indicated that they did not agree that the guidance issued by ED
reflects congressional intent. For example, former Senator Lamar Alexander, then-Chair of the
Senate Committee on Health, Education, Labor, and Pensions, stated that he thought, and he
believed that most Members also thought, that LEAs would reserve funds to serve nonpublic
school students and teachers in the same way that they are reserved under Title I-A. However, he
did not say that Secretary DeVos had exceeded any boundaries in issuing the guidance nor did he
commit to overturning the guidance, which does not have the force of law.136 In addition, several
Democratic Members sent a letter to Secretary DeVos indicating that they did not believe that the
ED guidance reflects congressional intent.137 The letter argued that the CARES Act’s reference to
the equitable services provision in Section 1117 of the ESEA requires the determination of how
much funding should be reserved to serve students and teachers in nonpublic schools to be made
based on the number of nonpublic school students who would be included in the count of students
used to determine funding for equitable services under Title I-A of the ESEA (i.e., low-income
nonpublic school students) rather than based on the count of al students attending nonpublic
schools in the LEA.
The letter further stated that if Congress had wanted to have funding determined based on the
number of students attending al nonpublic schools and have LEAs serve teachers and students
attending al nonpublic schools located in the LEA, it could have cited the equitable services
provisions included in ESEA Section 8501 rather than Section 1117. As previously discussed,
under the Section 8501 provision al nonpublic school students who are eligible to be served by
the relevant program are included in the count used to determine the amount of funding that
should be reserved to serve nonpublic school students and teachers. In addition, under Section
8501, the determination of eligible nonpublic school students is based on the number of eligible
nonpublic school students attending nonpublic schools in the LEA.
On July 1, 2020, ED published an interim final rule (IFR) providing LEAs with three options for
implementing the equitable services provision.138 (ED also removed the prior guidance from its
website.) Under one option, an LEA could determine the proportional share based on enrollment
in participating nonpublic elementary and secondary schools in the LEA compared to the total
enrollment in public and participating nonpublic elementary and secondary schools in the LEA
(total enrollment option).

135 See, for example, Letter from Carissa Moffat Miller, Executive Director, Council of Chief State School Officers, to
Secretary Betsy DeVos, Secretary of Education, May 5, 2020, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&
source=web&cd=&ved=2ahUKEwj73ZLI1cfpAhWRgnIEHZugAZoQFjAAegQIBBAB& url=
https%3A%2F%2Fccsso.org%2Fsites%2Fdefault%2Ffiles%2F2020 -05%2FDeVosESLetter050520.pdf&usg=
AOvVaw2GJDElYRfzHpWo8Udl7QSC.
136 Andrew Ujifusa, “Sen. Alexander Splits From Betsy DeVos on COVID-19 Aid to Help Private Schools,” Education
Week, May 21, 2021, http://blogs.edweek.org/edweek/campaign-k-12/2020/05/alexander-devos-COVID-aid-private-
schools-CDC-reopening.html.
137 Letter from Robert C. “Bobby” Scott, Chair, Committee on Education and Labor, U.S. House of Representatives,
Rosa L. DeLauro, Chair, Committee on Appropriations, Subcommittee on Health and Human Services, Labor, and
Education and Other Related Services, U.S. House of Representatives, and Patty Murray, Ranking Member, Committee
on Health, Education, Labor, and Pensions, U.S. Senate, to T he Honorable Betsy DeVos, Secretary of Education, May
20, 2020, https://edlabor.house.gov/imo/media/doc/2020-5-
20%20Ltr%20to%20DeVos%20re%20Equitable%20Services.pdf .
138 U.S. Department of Education, “CARES Act Programs; Equitable Services to Students and T eachers in Non-Public
Schools,” 85 Federal Register 39479-39488, July 1, 2020.
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The remaining options included in the IFR were available to LEAs only if they agreed to use the
funds available for public education exclusively to serve students and teachers in public Title I-A
schools. If this condition was met, an LEA could determine the share of funds to be reserved to
serve students and teachers in nonpublic schools by either (1) using the proportional share of Title
I-A funds calculated by the LEA under Section 1117(a)(4)(A) of the ESEA for SY2019-2020, or
(2) determining the number of children ages 5-17 who are from low-income families and attend
each nonpublic school in the LEA that wil be participating in a CARES Act program compared
to the total number of children ages 5-17 who are from low-income families in Title I-A schools
and participating nonpublic elementary and secondary schools in the LEA. In addition, if an LEA
chose to implement one of these two options, it was required comply with the supplement not
supplant requirement included in Section 1118(b) of the ESEA.139 Among other things, this
requirement prohibited the LEA from al ocating CARES Act funds to Title I-A schools and then
redirecting state or local funds to non-Title I-A schools.
The IFR was subsequently chal enged in four U.S. district courts.140 On September 4, 2020, in
National Association for the Advancement of Colored People v. Elisabeth D. DeVos, the U.S.
District Court for the District of Columbia issued an opinion141 and an order142 vacating the IFR.
ED did not appeal the rulings. In revised guidance following the court rulings, ED indicated that
LEAs must calculate the proportional share for equitable services using the formula included in
ESEA Section 1117.143 In determining the proportional share, LEAs may use the proportional
share calculated for Title I-A purposes from either SY2019-2020 or SY2020-2021. However,
unlike the requirements of Section 1117, ED determined that the LEA in which a nonpublic
school is located should provide the equitable services, which is similar to the provision of
services under ESEA Title VIII-F-1.144
CRRSAA
Congress took a different approach to the provision of equitable services under the CRRSAA.
Rather than have LEAs reserve a portion of their GEER Fund and ESSER Fund appropriations to
provide services to private school students and teachers, $2.75 bil ion of the total appropriation
for the GEER Fund ($4.05 bil ion) was reserved for the EANS program. These funds were

139 T he CARES Act did not apply a supplement not supplant requirement to either the GEER Fund or the ESSER Fund.
For more information about the T itle I-A supplement not supplant requirement, see CRS In Focus IF10405, Fiscal
Accountability Requirem ents That Apply to Title I-A of the Elem entary and Secondary Education Act (ESEA) .
140 “T he IFR was challenged in four U.S. district courts: Washington v. DeVos, No. 2:20-cv-1119-BJR, 2020 WL
5079038 (W.D. Wash. Aug. 21, 2020) (granting preliminary injunction against the Department); Michigan v. DeVos,
No. 3:20-cv-4478-JD, 2020 WL 5074397 (N.D. Cal. Aug. 26, 2020) (granting preliminary injunc tion against the
Department); NAACP v. DeVos, No. 20 -cv-1996 (DLF), 2020 WL 5291406 (D. D.C. Sept. 4, 2020) (vacating the
IFR); and Council of Parent Attorneys & Advocates, Inc. v. DeVos, No. 1:20 -cv-2310-GLR (D. Md.)”; U.S.
Department of Education, Providing Equitable Services to Students and Teachers in Non -Public Schools Under the
CARES Act Program s, October 9, 2020, p. ii, htt ps://oese.ed.gov/files/2020/10/Providing-Equitable-Services-under-
the-CARES-Act-Programs-Update-10-9-2020.pdf (hereinafter referred to as “ U.S. Department of Education, Providing
Equitable Services Under the CARES Act Program s.”)
141 Memorandum Opinion, National Association for the Advancement of Colored People v. Elisabeth D. DeVos, No.
20-cv-1996 (DLF) (United States District Court for the District of Columbia 2020), September 4, 2020,
https://oese.ed.gov/files/2020/09/NAACP-v-DeVos-DDC_Opinion-Granting-Partial-Summary-Judgment.pdf.
142 Order, National Association for the Advancement of Colored People v. Elisabeth D. DeVos, No. 20-cv-1996 (DLF)
(United States District Court for the District of Columbia 2020), September 4, 2020, https://oese.ed.gov/files/2020/09/
NAACP-v-DeVos-DDC_Order-granting-Partial-SJ-09-04-2020.pdf.
143 U.S. Department of Education, Providing Equitable Services Under the CARES Act Programs, Item 10.
144 U.S. Department of Education, Providing Equitable Services Under the CARES Act Programs, Item 4.
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al ocated to states based on their proportional share of private school children ages 5-17 from
families with incomes at or below 185% of poverty.145The governor, who is the recipient of
GEER Fund monies, is required to designate the SEA as the EANS program administrator.
SEAs are required to make the application for services or assistance available to nonpublic
schools not later than 30 days after the receipt of EANS funds. That is, EANS funds may be used
to provide services or assistance directly to private schools as opposed to providing services or
benefits to private school students or staff. Similar to equitable service provisions included in the
ESEA, however, the control of EANS funds for the services or assistance provided to nonpublic
schools and the title to materials, equipment, and property purchased with such funds must be in a
public agency. A public agency is to administer such funds, services, assistance, materials,
equipment, and property. The provision of services and assistance must be provided by employees
of a public agency or through a contract between the public agency and an individual, association,
agency, or organization. Such employee, individual, agency, or organization must be independent
of the nonpublic school receiving services or assistance, and the employment and contracts must
be under the control and supervision of the public agency. Al services or assistance provided,
including equipment, material, and other items, must be secular, neutral, and nonideological.
The SEA must approve or deny an application for services or assistance from a nonpublic school
not later than 30 days after the receipt of the application. It must prioritize services or assistance
to nonpublic schools that enroll “low-income students” and are the “most impacted” by the
COVID-19 emergency. The statutory language, however, does not define which students qualify
as low-income or how to determine which schools are most impacted. Each SEA that complies
with various assurances provided by the governor to ED but has unobligated EANS funds
remaining six months after receiving them is required to return the unobligated funds to the
governor for use under the GEER Fund.
A nonpublic school receiving services or assistance under the EANS program is required to use
such services or assistance to address educational disruptions from the COVID-19 emergency.
The services or assistance may include, for example, providing supplies to clean school facilities,
providing personal protective equipment, improving ventilation systems, expanding capacity to
administer COVID-19 testing, and providing educational technology. In some circumstances, a
nonpublic school may also be reimbursed for expenses of various services or assistance that it
incurred on or after the date of the onset of the qualifying emergency (i.e., March 13, 2020).
EANS funds cannot be used to provide direct or indirect assistance to scholarship granting
organizations or related entities for elementary or secondary education. In addition, EANS funds
cannot be used to provide or support vouchers, tuition tax credit programs, education savings
accounts, scholarships, scholarship programs, or tuition-assistance programs for elementary or
secondary education.
A nonpublic school must state in its application for services or assistance whether it received a
Paycheck Protection Program (PPP) loan146 prior to the date of the enactment of the CRRSAA
and the amount of the loan. In addition, to receive services or assistance under the EANS program
a nonpublic school must provide an assurance that it did not and wil not apply for a PPP loan that

145 In making EANS grants, ED used school enrollment and poverty data from the American Community Survey (ACS)
5-Year Public Use Microdata Sample (PUMS) to determine the relative shares of such children in each state. For more
information, see U.S. Department of Education (ED), https://oese.ed.gov/files/2021/06/FINAL_GEERII_EANS-
Methodology_T able_Revised_6.25.21.pdf (GEER II grants, which included a reservation of funds for EANS I), and
https://oese.ed.gov/files/2021/04/Final_ARP-EANS-Methodology-and-T able-3.16.21.pdf (EANS II).
146 For more information about the PPP, see CRS Report R46284, COVID-19 Relief Assistance to Small Businesses:
Issues and Policy Options.
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is made on or after the date of enactment of the CRRSAA. Receipt of a PPP loan prior to the date
of enactment of the CRRSAA does not make a nonpublic school ineligible to receive services and
assistance under the EANS program.
ARPA
Congress continued to provide appropriations for the EANS program under the ARPA. Instead of
reserving funds for the program under the GEER Fund, another $2.75 bil ion was provided
specifical y for the EANS program. This version of the EANS program is similar to the version
authorized under the CRRSAA, with a few exceptions. For example, receiving reimbursement for
expenses or services is not an al owable use of funds. In addition, SEAs may only provide
services or assistance to nonpublic schools that serve a “significant percentage of low-income
students” and are “most impacted” by the COVID-19 emergency. Similar to the CRRSAA, these
terms are not defined in the ARPA.147
Direct Federal Aid to Private Schools
Equitable service requirements that apply to the GEER Fund and ESSER Fund under the CARES
Act are similar to those included in the ESEA. Private school students and teachers benefit from
equitable services, but no assistance is provided directly to the private schools.148 Under the
EANS program authorized by the CRRSAA and the ARPA, private schools and their students and
teachers can benefit from the services and assistance provided. However, the governor, not the
private school, is the recipient of federal financial assistance and is responsible for ensuring the
SEA “administers the EANS program in accordance with applicable laws, including civil rights
laws.”149 In its nonregulatory guidance, ED states, “A nonpublic school whose students and
teachers receive services or assistance under the EANS program, even if such services or
assistance are delivered through reimbursement, is not a ‘recipient of Federal financial
assistance’.”150 Thus, according to ED’s interpretation of these laws and consistent with ED’s
interpretation of equitable service provisions in the ESEA,151 none of the equitable services
provided through the CARES Act, CRRSAA, or ARPA result in a nonpublic school being
considered a recipient of federal financial assistance.
Selected Issues
While equitable services have general y been provided by LEAs, the EANS program introduced a
new approach to providing such services, raising questions about whether a similar approach

147 ED solicited feedback on how the ARPA terms should be implemented. (For more information, see U.S.
Department of Education, Notice Inviting Applications and Announcing Allocations for the Emergency Assistance to
Non-Public Schools Program under the American Rescue Plan Act of 2021; Invitation for Comment, A pril 12, 2021,
https://oese.ed.gov/files/2021/04/FINAL-ARP-EANS-notice-4.12.21.pdf.)
148 U.S. Department of Education, Providing Equitable Services to Students and Teachers in Non-Public Schools Under
the CARES Act Program s, October 9, 2020, Item 13, https://oese.ed.gov/files/2020/10/Providing-Equitable-Services-
under-the-CARES-Act -Programs-Update-10-9-2020.pdf.
149 U.S. Department of Education, Frequently Asked Questions: Emergency Assistance to Non -Public Schools (EANS)
Program as Authorized by the Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA), March
19, 2021, Item D-12, https://oese.ed.gov/files/2021/03/Final-EANS-FAQ-2.0-3.19.21.pdf (hereinafter referred to as
“U.S. Department of Education, FAQs: EANS Program”).
150 U.S. Department of Education, FAQs: EANS Program , Item D-12.
151 See, for example, U.S. Department of Education, Frequently Asked Questions—General Issues Related to Non-
Public Schools, August 2019, Item 11, https://www2.ed.gov/about/inits/ed/non-public-education/files/onpe-faqs-
aug2019.pdf.
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could be applied to ESEA programs. This section discusses some of the issues that could arise
should SEAs, rather than LEAs, be responsible for providing equitable services under the ESEA
(beyond the smal number of states where ESEA equitable services are already provided via a
statewide bypass of LEAs). It also considers the possibility of providing equitable services to
private school students and teachers based on a schoolwide program model.
SEAs Providing Equitable Services
This subsection discusses some of the issues that could be associated with shifting responsibility
for the provision of equitable services from LEAs to SEAs. It begins with a discussion of this
potential change with respect to the delivery of equitable services under Title I-A. It then
considers the delivery of equitable services under this new model for other ESEA formula grant
programs to which equitable services apply.
Title I-A
If al SEAs were required to provide equitable services under the ESEA, one issue that would
have to be addressed is how to determine the amount of funding that should be reserved at the
state level to provide these services. Under current law, each LEA determines the amount it must
reserve to provide equitable services based on the number of low-income children living in a Title
I-A school attendance area but attending a private school. The amount of funds reserved is based
on the amount of Title I-A funds being provided per public school student in each of the LEA’s
Title I-A school attendance areas. If SEAs were reserving funds at the state level to provide these
services, LEAs could provide this information to their SEA, and LEA grants could be reduced
accordingly. The SEA could then reach out to the relevant private schools to determine what
services would be provided to specific students.
Alternatively, LEAs could be removed completely from the process of determining the amount of
funding to be reserved for equitable services. Instead, under one alternative option, the amount
reserved for equitable services could be based on the share of low-income children attending
private schools as a proportion of al children from low-income families attending public and
private schools in the nation. This determination could be made using national data, such as the
five-year American Community Survey (ACS) estimates. Another option would be to establish an
aggregate funding level for providing equitable services in annual appropriations bil s. These
funds could then be awarded to states based on each state’s relative share of children from low-
income families attending private schools. This would be similar to the approach used in the
EANS program. While either option could simplify the determination of the number of private
school students upon which the reservation is based, it is not possible to know whether this would
result in an increase or a decrease in the overal amount of funding that would be reserved to
provide equitable services. As there are no comprehensive data available on the amount of funds
being reserved for equitable services under current law, it is not possible to model the potential
effects of this type of change, either in the aggregate or for specific states or LEAs. With respect
to the amount of funds reserved per private school student, the SEA could divide the amount of
funds reserved by the number of low-income children attending private schools. This would differ
from current law, under which the amount of funds reserved for a low-income private school
student may vary by LEA and Title I-A school attendance area. Similar to the EANS program,
private schools serving low-income students could apply to the SEA to receive equitable services
for their students and teachers. The SEA would be responsible for negotiating the services to be
provided and for arranging such services.
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Shifting responsibility for equitable services from LEAs to SEAs would centralize the delivery of
such services and remove the responsibility and administrative burden from LEAs. It also would
eliminate the complication of an LEA having to arrange for equitable services for students
attending private schools outside of the LEA. This might result in more consistent treatment of
private schools and their students and teachers within each state, in terms of both the types of
services provided and the amount expended for such services per student or teacher served. It
could potential y require additional staffing at the SEA level to handle the new responsibilities.
Depending on how the reservation of funds for equitable services would be calculated, more
private schools may have students and teachers eligible to receive such services. It is also possible
that if a set amount of funds was reserved or allocated to provide equitable services and a
substantial percentage of private schools in a given state chose not to apply to the LEA for
assistance for philosophical or other reasons, the amount of available funds distributed among the
relatively smal number of private schools that did apply could result in benefits being more
generous per student served than those provided to public school students.152
If funds for equitable services were reserved based on data that are not provided directly by LEAs
(e.g., ACS estimates of school-age children in families with income at or below 185% of poverty,
which is the income threshold for free or reduced-price school meals) and the SEA reserved the
funds for equitable services prior to determining LEA grants, it may also affect LEA grant
amounts. For example, an LEA that previously did not reserve much (or any) funding to provide
equitable services may have its grant amount reduced by more than it would have had to reserve
for equitable services under current law.
Other ESEA Programs
Similar issues would apply to other ESEA formula programs to which equitable services apply.153
For some programs, SEAs would need to work with LEAs to obtain needed c ounts of eligible
private school students. For example, LEAs could provide their SEA with the number of public
school and private school children who are eligible for services under the English Language
Acquisition program (Title III-A).154 Alternatively, private schools could provide the relevant data
in their applications to receive equitable services based on objective criteria established by the
SEA for identifying eligible students. The SEA would then use this information to determine how
much Title III-A funding should be reserved to provide equitable services to private school
students and teachers. The SEA would then work with private schools to provide equitable
services.

152 T his difference between T itle I-A funding for private school students and public school students in this scenario may
be exacerbated as private school students are served through targeted assistance programs and most public school
students are served through schoolwide programs. Under a schoolwide program, all students enrolled in the T itle I-A
school are considered to be served under T itle I-A regardless of whether they directly benefit from the T itle I-A
program.
153 T his would include ESEA programs to which equitable participation requirements apply, with the exceptions of
Project SERV and the Jacob K. Javits Gifted and T alented Student Education program. Neither of these programs is a
formula grant program.
154 Under T itle III-A, LEAs, in consultation with private school officials, are required to establish objective criteria
(e.g., a primary home language other than English survey) to determine which private school children are eligible for
T itle III-A services. For more information, see U.S. Department of Education, Title III-A English Language
Acquisition, Language Enhancement, and Academic Achievem ent: Equitable Services to Private School Students,
Teachers, and Other Educational Personnel, Non -Regulatory Guidance, July 2015, Item E-2, https://www2.ed.gov/
about/offices/list/oii/nonpublic/titlethree.pdf.
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For some ESEA formula grant programs, al public and private school students are eligible for
services. For these programs, SEAs could determine the proportional share of funds that must be
reserved to provide equitable services to students and teachers in private schools without
assistance from the LEAs.
Schoolwide Programs
As discussed previously, public schools receiving Title I-A funds operate either a schoolwide
program or a targeted assistance program. Under a schoolwide program, al students in the school
may benefit from Title I-A funds if at least 40% of the students served by the school are from
low-income families,155 while targeted assistance programs focus on providing services to
specific low-achieving students.
Equitable services are currently provided only to individual private school students. Depending
on (1) the amount of funds reserved to provide services to students in a specific private school
under current law or a model under which the SEA provides equitable services and (2) the
percentage of private school students from low-income families served by the school, it might be
possible to provide services on a schoolwide program basis while continuing to comply with
other equitable services requirements, including public control of funds, materials, and
equipment. For example, a private school could conduct a needs assessment and determine that
students were struggling with reading. The private school could ask that the funds reserved for
equitable services be used to purchase materials for a new literacy program for the school and/or
provide relevant professional development. Consideration may be given to the method by which
the success of the services provided would be demonstrated.
Another feature of Title I-A schoolwide programs is the option for schools to consolidate ESEA
formula grant funds, provided the school continues to meet the purposes of the programs from
which funds are consolidated. Rather than providing equitable services separately under each
program for which students in a given private school are eligible, the funds could be combined to
provide such services as long as the purposes of al the programs for which funds have been
combined are met. This could make it easier to support schoolwide programs rather than services
focused on individual private school students. If SEAs, rather than LEAs, were responsible for
providing equitable services, an SEA could determine the total amount of ESEA funds available
to provide equitable services to students and staff in each private school and then a decision could
be made about how to provide services to private school students and staff. It could be harder for
LEAs to determine the total amount of ESEA funds available to provide equitable services to
students and teachers in a given private school, as the LEA responsible for providing equitable
services for students at a given private school under Title I-A might not be the same LEA
responsible for providing equitable services under other ESEA programs. This is because, as
noted earlier, the LEA responsible for providing Title I-A services to eligible private school
students is the LEA in which the student resides, even if the student attends a private school
outside that LEA, while under al other relevant ESEA programs, eligibility of students to be
served is based on the location of the private school, regardless of whether eligible students in
that school reside within the same LEA.

155 An SEA may waive the requirement that at least 40% of the students served by a T itle I-A school must be from a
low-income family (§1114(a)(1)(B)).
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Author Information

Rebecca R. Skinner

Specialist in Education Policy

Acknowledgments
Wayne Riddle, former CRS Specialist in Education Policy and current contractor to CRS, co -authored this
report.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
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