Are the federal education benefits that your students and teachers are entitled to underway at your school? Implementation should have begun by now—but if not, it is still not too late to begin the process. Before doing so, be sure to consult the most recent regulations and guidance document that explain allowable uses of funds and acceptable practices and procedures. The two programs that most Catholic and other private schools participate in are controlled by laws enacted by Congress: the Elementary and Secondary Education Act (ESEA) and Individuals with Disabilities Education Act (IDEA). Participation of private school children is found in Sec. 1011 of ESEA and Sec. 612(10)(A) of IDEA.
The passage of legislation by both branches of Congress, the House of Representatives and the Senate, is an often-complicated process producing hundreds, and sometimes thousands, of pages of intricate details. The current ESEA bill (Public Law 114–95) is 392 pages and IDEA (Public Law 108-446) is 162 pages. Both pieces of legislation have been reauthorized (amended) by Congress several times since they were first enacted. Each time ESEA was amended it was given an additional name, ESEA as amended by: Improving America’s Schools Act of 1994, No Child Left Behind Act of 2001 (NCLB) and the current version Every Student Succeeds Act of 2015 (ESSA). Congress and DOE still refer to each version as ESEA.
Once a law is passed and signed by the president, it becomes the responsibility of the government agency that has budgetary control over the program to administer its implementation. For education-related issues and programs, the U.S. Department of Education (USDE) provides the rules and regulations for how the law is to be interpreted. As mentioned, the law itself is oftentimes complicated in its terms and, if a reauthorization, filled with references to the older bill that it is amending—often creating a path to misinterpretation.
The office within USDE that administers the program is tasked with interpreting the statute and publishing regulations that explain its understanding of the law. For significant changes or new interpretations, USDE publishes a notice of rulemaking and request for public comments in the Federal Register, the official journal of the federal government that contains presidential orders, government agency rules, proposed rules and public notices. The public is given a period of time to comment on the proposed rules and to offer agreements or propose different approaches. NCEA often submits comments on topics that would have consequences for Catholic schools—sometimes with positive results!
The current regulations pertaining to children in private schools in ESEA programs are found in Section 1117: Participation of Children Enrolled in Private Schools. This section lists the general requirements pertaining to types of available services and providers, control and allocation of funds and consultation and processes. The regulations governing participation of private school students in IDEA benefits are found in Sections 303.13 – 303.148. These cover identification of children with disabilities in private schools and basic requirements for allocating and expending funds, provision of services, determination of equitable services, consultation processes for services and due process requirements.
The USDE sends notices and documentation of regulations to the chief education officer in each state. The state officer is supposed to send this information to the superintendent in each district who then distributes it to the district program officer. At times, this chain of distribution breaks down, or with frequently changing personnel, documents are misplaced and not available to those implementing the programs. As the regulations are implemented during the first few years, misunderstandings and questions often arise as the local school district (LEA) applies them to schools in the district. Confusion is caused by the lack of education and understanding of the documents—or by program officers following older versions of the regulations.
To help resolve multiple interpretations and misunderstandings, USDE prepares guidance documents for ESEA and IDEA programs according to the various titles. These are for all stakeholders, public schools as well as private schools. They are useful for overall program information, but often do not contain specifics about equitable services.
As the Office of Nonpublic Education (ONPE) receives questions and complaints from LEAs, private school officials and ombudsmen, it begins a process of drafting guidance documents to assist with equitable services interpretations. Often that participation has different regulations and requirements that the LEA official may not know about—or wants to ignore.
Guidance documents are vetted throughout USDE and public comments are requested. The final products are well-written and easy to extrapolate to most situations. They are written in Q&A format and deal with actual scenarios that private schools have encountered during consultation meetings. While these non-regulatory documents do not have the force of regulations, they do provide insight into how USDE would likely rule on a formal complaint about decisions being made at the LEA or state levels.
The guidance documents are very important pieces of information for private school officials to use in planning their requests for services when they go to the consultation meetings. This is particularly important when dealing with new programs, especially those under Title II-A regarding professional development activities. There are specific private school guidance documents for IDEA and for ESEA. The IDEA guidance, revised in 2022, is a single document. There are two for ESEA: one for Title I and a separate one for Title VIII, released in July 2023. Title VIII guidance governs all the other Titles that require equitable services, namely Title II-A, Title III-A and Title IV-A.
The private school representatives engaging in the consultation process with the LEA should be familiar with the regulations and guidance documents and bring copies of them to the meeting. Oftentimes the LEA personnel are not well-versed in the requirements pertaining to equitable inclusion of private school students and teachers and producing the documents during the meeting can be a teachable moment in reaching agreement about benefits to which students are entitled. If reference to the documents does not move the LEA official to consider the request of the private school official, then the ombudsman should be contacted if it is an ESEA program. If it is an IDEA issue, the LEA must provide a written notice of why the request was not honored, and if that is not reasonable a complaint can be made to the state education agency.
Catholic school leaders should be proactive about supplementing school resources with available federal benefits that require equitable participation of their students and teachers. To do so more effectively, use the ESEA and IDEA regulations and guidance documents found on the NCEA public policy website: https://ncea.org/publicpolicy.
Sister Dale McDonald, PBVM, Ph.D.mcdonald@ncea.org