Memorandum: OUA Comments and Revisions to Proposed Federal Support for Nonpublic K-12 Schools in Next Covid Relief Package

Posted on August 3, 2020 In Blog, COVID19


The Covid-19 pandemic and the shutdown response it has required have dramatically harmed America’s K-12 schools and the children and families they serve. Included in this harm are America’s non-public K-12 schools – which educate approximately 10 percent of the nation’s K-12 students. In the Jewish community and others, we have seen the ability of parents to pay tuition – and schools to fundraise – depressed, and scholarship applications dramatically increased. The impact of this crisis in the nonpublic sector is devastating and in danger of growing.[1]

Response & Revisions

We appreciate the stated commitment by leaders in Congress and the Administration to provide essential federal financial support for non-public K-12 schools in the next Covid relief legislation, and that the recently released Senate Republican proposal contains provisions to do so in both the HEALS Act and the Safely Back to School and Back to Work Act.

The primary request of the nonpublic school community is to replace HEALS Act appropriation Sec. 825 (“Assistance to Nonpublic Schools”) with an appropriation for Sec. 202, “Emergency Education Freedom Grants” in the Safely Back to School and Back to Work Act, and to add an ‘equitable services’ provision for the Education Stabilization Fund. We believe this approach is the most efficient, constitutionally sound and minimizes other legal complications that arise in the kind of direct funding approach set out in Sec. 825 of the HEALS Act.

However, if support for nonpublic K-12 schools remains exclusively in the HEALS Act, we request three essential revisions to that appropriations bill for assistance to non-public schools:

  1. A) Expand the allowable “use of funds” [sec. 823(e)(1)]
  • Our schools are financially hurting from actual and potential loss of enrollment, dramatic declines in charitable support, and increased costs for the safety and other measures needed to respond to and operate in the face of Covid.
  • The current language is too narrow and restrictive to provide sufficient support to schools to survive this crisis.
  • Give nonpublic schools the same latitude already given to school districts in the bill.

Solution:  We need wide latitude to support families, our existing teachers and staff and operations by using the same language that gives school districts wide use of funds.

Possible uses already listed in the CARES Act Section 18003(d) Uses of Funds  (pages 149-151):

(3) providing principals and other school leaders with resources to address the needs of their individual schools;

(12)  supporting other activities that are necessary to maintain the operation and continuity of LEA services and to continue to employ existing LEA staff.  (*need to add the word school or non-public school, rather than just LEA)

Or, there is language that addresses these needs in the Higher Education Section of HEALS that would suitably address the needs of non-public K-12 schools, at page 121:

(c) USES OF FUNDS. — An institution of higher education receiving funds under this section may use the funds received to:

(1) defray expenses associated with coronavirus (including lost revenue, reimbursement for expenses already incurred, technology costs associated with a transition to distance education, faculty and staff trainings, and payroll); and

(2) provide financial aid grants to students (including students exclusively enrolled in distance education), which may be used for any component of the student’s cost of attendance or for emergency costs that arise due to coronavirus.

  1. B) Define and Expand the distribution of funds by Governors to non-public schools [Sec. 825(a)]
  • The HEALS Act directs the funding allocated to non-public schools to go to those serving “low income” students; but it does not define that term. (Of note, the HEALS Act does not place that restriction on the allocations to public K-12 schools.)
  • We share the concern to avoid funding going to “elite” schools serving mostly wealthy students.
  • Moreover, the HEALS Act formula for allocation of the nonpublic share of funds uses a formula that unhelpfully skews the funds because of the ratio it utilizes.
  • We must address the definition of low-income and the formula for distribution to schools.

Solution 1:  Design a formula that directs additional but not all funds to low-income students. To reach more students from working class and middle income families, the distribution of the state share of the $70 billion to non-public schools [p. 124 lines 4-12, sec. 825(a)] should be on a more traditional, proportional basis – we suggest 60/40 basis, that is 60 percent of the funds get distributed based on low-income, while 40 percent get distributed based on overall student counts.


Solution 2:  Define “low-income” – allow the funds to flow to schools on a per pupil basis that have a student body from households using the same income formula ($75k for a single reporter; $150k for a married reporter) that was used to calculate the $1,200 stimulus checks and that leaders are again considering distributing in this next relief package. This would probably enable more than one third of day schools to qualify.

  1. C)   Provide flexibility in the distribution of funds by Governors to non-public schools to ensure Religious Liberty Protections [Sec. 825(a)].
  • The language in the Rules of Construction must be maintained to ensure private schools are not considered direct recipients of federal funding by virtue of participating in this emergency relief package.
  • Even with these protections as written, many private schools will be too concerned about strings attached to federal funding and will opt out.

Solution: The Governors should be given the flexibility to take the non-pubic reserve and offer the funds to two different sub-grantee categories: Private schools and/or Scholarship Granting Organizations.

[1]   See:

See also: