On February 12, 2021, the Department of Education (“the Department”) and the Centers for Disease Control and Prevention (“CDC”) released guidance to support school and district leaders and educators to safely reopen elementary and secondary schools. The guidance focuses on how schools can consistently implement mitigation strategies during all school-related activities to successfully reopen schools and keep them open. To support this strategy, the Department released the COVID-19 Handbook (“the Handbook”), which is being released in two volumes, provides strategies to keep schools open and identifies ways to promote equity for communities of color and people with disabilities/chronic conditions who have been disproportionately impacted by COVID-19. Continue Reading U.S. Department of Education Releases Guidance on Safely Reopening Schools

On November 11, 2017, various groups of parents and several individuals filed suit in federal district court in Oregon challenging Dallas School District No. 2’s policy of accommodating transgender students’ requests to use sex-segregated school facilities on the basis of their gender identity. Continue Reading Parents for Privacy v. Barr: Takeaways after Cert. Denial

On May 6, 2020, the U.S. Department of Education (“ED” or “the Department”) released the long-anticipated final Title IX regulations, which have a significant impact on schools all across the country—both K-12 and higher education institutions. This post identifies some of the key differences between requirements for K-12 and higher education institutions, as provided in the final regulations and related comments from the Department.

Interested in learning more? Join us December 3 and 4, 2020, for two half-day training sessions on Sexual Harassment and Sexual Assault in K-12 Schools – Title IX Compliance and Response to New Regulations. Register here. Continue Reading K-12 Education v. Higher Education in Title IX Compliance: 2020 Regulations

Key Points

  • The ministerial exception protects religious employers from government interference in internal employment disputes involving the selection, supervision, and removal of individuals who play an important role relative to the core mission of the institution.
  • To determine whether the ministerial exception applies in a specific case, courts must assess the nature of the duties or functions performed by the employee for the religious institution.
  • Employees of religious institutions who are designated as performing functions vital to the core mission and that fall within the scope of the ministerial exception cannot pursue an employment claim.
  • The Supreme Court stated: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”
  • This exception may apply to other lay employees of religious employers.

Continue Reading SCOTUS Decision Impacts Discrimination Claims Against Religious Employers

On June 30, 2020, the Supreme Court, in Espinoza v. Montana Department of Revenue, ruled that states must allow religious schools to participate in programs that provide scholarships to students attending private schools.

Background of Espinoza Case

The Montana Legislature established a program that granted tax credits to people who donated to organizations that award scholarships for private school tuition. However, the Montana Constitution contains a “no-aid provision” that prohibits government aid to flow to any school “controlled in whole or in part by any church, sect, or denomination.” To reconcile the program with this state constitutional provision, the Montana Department of Revenue (“Department”) promulgated a rule that prohibited families from using tax credit program scholarship money at religious schools. When the Department’s rule prevented three mothers from using the scholarship money at Christian schools, they sued the Department and alleged that the Rule discriminated on the basis of their religious views and the religious nature of the schools they had chosen. The Montana Supreme Court held that the tax credit scholarship program, without the rule, violated Montana’s no-aid provision and invalidated the program entirely.

Continue Reading Supreme Court Rules on Religious Schools Case: Espinoza v. Montana Department of Revenue

On this day in 1972, the President signed Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., into law and on May 6, 2020, the U.S. Department of Education (“ED” or “the Department”) released the long-anticipated final Title IX regulations, which will have a significant impact on schools all across the country. This post identifies some of the key takeaways from the final regulations and related comments from the Department. Below are hyperlinks to the high-level conceptual elements and requirements regarding the process from the regulations.

Continue Reading Title IX: Takeaways from Final Regulations and Comments from the Department


On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act in response to the Novel Coronavirus Disease 2019 (“COVID-19”). See H.R. 748. The CARES Act appropriated approximately $30.75 billion to create an Education Stabilization Fund (“ESF”) to provide emergency funding for several education programs—including public K-12 schools, charter schools, and some private K-12 schools—in response to COVID-19. Allocation of ESF grants is statutorily tied to the allocation formulas established in Title I of the Elementary and Secondary Education Act (“ESEA”).

Using informal guidance, the U.S. Department of Education (“ED” or “the Department”) has indicated that local education agencies (“LEAs” or “school districts”) receiving federal emergency relief funds under the CARES Act must provide “equitable services” to private schools irrespective of the private school’s population of low-income or other at-risk student population. This differs from the equitable services statutory provision of the ESEA, which provides funding for low-income and other students at risk of not meeting state academic standards based on the relative proportion of eligible children residing in the district who are enrolled in the private school.

As discussed below, this guidance departs from both from the statutory text of CARES Act and previous Department guidance, resulting in confusion and uncertainty regarding the distribution of this much-needed emergency funding. Adding to the confusion, the Department provided in the guidance document itself that its guidance does “not have the force and effect of law.” However, school districts and states seeking to take advantage of the much-needed funding and remain in compliance with the law generally rely on the Department’s interpretation of education-related statutes and regulations and are in a difficult position when such interpretation is in conflict with the statutory text.

The CARES Act Establishes Education Stabilization Fund  

As relevant to K-12 schools, the CARES Act authorized the Department to provide two categories of ESF “grants” administered through state education agencies: the Governor’s Emergency Education Relief (“GEER”) Fund (H.R. 748 § 18002) and the Elementary and Secondary School Emergency Relief (“ESSER”) Fund (Id. § 18003).

Generally, the GEER Fund may be used to provide broad emergency support to schools “most significantly impacted by coronavirus” to support continued educational services and “on-going functionality” of schools. Id. § 18002(c)(1). In addition, as deemed by the individual state governors as essential, funds may be used to carry out emergency educational services for students; provide childcare, early childhood education, and social and emotional support; and protect education-related jobs. Id. § 18002(c)(3). The Department views the GEER Fund as a “an extraordinarily flexible ‘emergency block grant’ designed to enable governors to decide how best to meet the needs of students” and schools. States can apply for GEER Funds using the Certification and Agreement form on the Department’s website.

In contrast, the ESSER Fund must be used for one or more statutorily-defined purposes, as outlined by the CARES Act’s twelve permitted uses:

  • Any activity authorized by the ESEA of 1965;
  • Coordination of preparedness and response efforts;
  • Providing principals and others school leaders with the resources necessary to address the needs of their individual schools;
  • Activities to address the unique needs of low-income children or students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth;
  • Developing and implementing procedures and systems to improve the preparedness and response efforts of local educational agencies;
  • Training and professional development for staff of the local educational agency on sanitation and minimizing the spread of infectious diseases;
  • Purchasing supplies to sanitize and clean the facilities of a local educational agency;
  • Planning for and coordinating during long-term closures, including for how to provide meals to eligible students, how to provide technology for online learning to all students, and compliance with IDEA and other federal, state and local laws;
  • Purchasing educational technology for students;
  • Providing mental health services and supports;
  • Planning and implementing activities related to summer learning and supplemental after-school programs; or
  • Other activities that are necessary to maintain the operation of and continuity of services.

Id. § 18003(d).

Allocation of GEER and ESSER Funds

Critically, however, with respect to K-12 schools, the allocation of both GEER and ESSER funds is statutorily tied to the formulas set forth in Title I of ESEA, which allocates Title I funding primarily based on the number of children living in poverty and other children at risk of failing to meet state academic standards. See 20 U.S.C. § 6333(c).

Specifically, while 60% of the GEER Fund is allocated based on the state’s relative population of school-aged (5–24) individuals, the remaining 40% must be allocated based on ESEA section 1124(c) allocations from the most recent fiscal year. H.R. 748 § 18002(b)(2); see 20 U.S.C. § 6333(c). The ESEA Basic Grant allocates Title I dollars to school districts based on the number of poor students they serve. A district qualifies for the funding if it has at least 10 poor children and 2% of its students live in poverty. Thus, virtually all school districts are eligible for GEER Funds—in amounts determined at the governor’s discretion—based on this Title I formula.

Similarly, grants provided through the ESSER Fund are allocated to states based on the Title I – Part A allocations for the most recent fiscal year. H.R. 748 § 18003(b). Each state is then responsible for administering “subgrants” to schools “in proportion to the amount of funds” received under Title I in the most recent fiscal year. Id. § 18003(c).

Section 18005 of the CARES Act requires LEAs that receives GEER or ESSER funds to provide “equitable services” to students and teachers in non-public schools. Id. § 18005. Importantly, the text of the statute expressly states that such equitable services be provided “in the same manner as provided under section 1117 of the [ESEA]” (codified at 20 U.S.C. § 6320) (emphasis added). Section 1117 requires schools to provide such equitable services “[t]o the extent consistent with the number of eligible children . . . in the school district . . . who are enrolled in private” school. 20 U.S.C. § 6320(a)(1) (emphasis added). A child’s “eligibility” for equitable assistance is determined based on Title I’s “Targeted Assistance Schools” program, which defines “eligible children” as “children identified by the school as failing, or at most risk of failing, to meet the challenging State academic standards on the basis of multiple, educationally related, objective criteria established by the local educational agency and supplemented by the school . . . .” 20 U.S.C. §§ 6320, 6315(c).

Thus, as recently as October 2019, the Department instructed school districts to “[e]nsure that its expenditures for equitable services are equal to the proportion of funds generated by children from low-income families who reside in participating Title I public school attendance areas and attend private schools” (emphasis added).

Departmental Guidance on “Equitable Services” under the CARES Act

On April 30, 2020, the Department issued new guidance titled “Providing Equitable Services to Students and Teachers in Non-Public Schools Under the Cares Act Programs” (the “FAQ”). Instead of following the ESEA funding formulas incorporated by the CARES Act, the FAQ “interpret[s]” the CARES Act to require school districts to provide equitable services to “all non-public school students and teachers without regard to family income, residency, or eligibility based on low achievement” (FAQ at 3).

To accomplish this, the FAQ requires school districts to calculate the “proportional share” of a private school’s equitable services allotment “based on the number of children enrolled in each non-public school whose students or teachers participate in the CARES Act programs compared to the number of students enrolled in public schools in the LEA” (FAQ at 4). Therefore, in contravention of Title I, the FAQ states that a school district “need not collect poverty data from non-public schools” to calculate equitable services under the CARES Act (FAQ at 5), and “equitable services under the CARES Act programs are not based on residence in a participating Title I public school attendance area and are also not limited only to low-achieving students and their teachers.” In other words, the Department’s guidance calculates a private school’s proportional share based on total enrollments of private schools based on the location of a private school within a school district, without accounting in any way for poverty or other equity metrics.

The Department rationalized this by finding (1) “under the CARES Act programs, the LEA in which a non-public school is located is responsible for providing equitable services to students and teachers in the school,” as opposed to Title I – Part A, where “[o]nly low-achieving students who live in a participating Title I public school attendance area are eligible for services” (FAQ at 1–2) (emphasis added); (2) “the services that an LEA may provide under the CARES Act programs are clearly available to all public school students and teachers, not only low-achieving students and their teachers as under Title I, Part A” (FAQ at 6); and thus, (3) “Although an LEA receives ESSER formula funds via the Title I, Part A formula, ESSER formula funds are not Title I, Part A funds and are not subject to Title I, Part A requirements” (Department of Education FAQ about the ESSER Fund at 5).

However, the formulas in Title I – Part A do not control the use (i.e., “services”) of ESEA funding; rather, it is a formula for allocating funding to ensure that federal money is provided equitably to school and communities with the most need. Once the funds are appropriately allocated to school districts based on these equity metrics, schools are then free to use the funds to provide services in accordance with the GEER and ESSER guidelines, irrespective of student poverty or achievement status. The Department’s guidance essentially conflates these two principles to direct more funding to private schools.

Under this interpretation, high-poverty school districts stand to lose millions of dollars that instead must be shared with private schools, which disproportionately serve wealthy families and communities, regardless of the economic need of the school’s students and the community.

Next Steps: Legislation and Litigation

Legislators, including the chairman of the Senate Education Committee, have stated that the Department’s interpretation is inconsistent with the text and purpose of the CARES Act statute. In addition, some legislators have proposed new legislation to amend the CARES Act to make clear that funds allocated for equitable services under the CARES Act must be provided “based on the number of nonpublic school students who were identified in the calculation under section 1117(c)(1) of the ESEA for purposes of Title I–A during the 2019–2020 school year relative to the sum of such students in public schools during the 2019–2020 school year.”

The Department stated in a recent letter responding to the Council of Chief State School Officers that it will be issuing a rule on the topic in the next few weeks and inviting public comments. The letter “disagrees” with any contention that the guidance does not comport with the CARES Act. The letter also states that if districts “insist on acting contrary to the Department’s stated position, they should, at minimum, put into an escrow account the difference between the amount generated by the proportional-student enrollment formula and the Title I, Part A formula.”

While many states are pushing back against the policy—including Republican-led states like Oklahoma, Mississippi and Indiana along with Maine, Washington, Pennsylvania, New Mexico and Wisconsin—others—including Texas and Tennessee—have said they will go along with the guidance. Other states have reported that they are still evaluating next steps, and some are advising districts to temporarily set aside the money that would go to private schools if the guidance is enforced. According to Politico, education departments in Missouri, Arizona, Connecticut, California, South Carolina, New York, Oregon and D.C. are still reviewing the guidance, and Colorado, Illinois and Ohio are advising districts to calculate the equitable share based on students in poverty, but to set aside the difference in funding.

As provided above, the Department has stated that its guidance does not have the force of law. Generally, only final agency action may be challenged. See 5 U.S.C. § 704. As such, agency action that does not impose rights, obligations, or legal consequences is, as a routine matter, not challengeable agency action. However, the Department’s own assertions about whether its guidance imposes new rights or obligations, or carries the force of law, are not necessarily relied upon. In 2016, a federal district court in Texas ruled that the Department’s guidance on transgender students—presented through a Dear Colleague letter—created legal consequences, and thus was final agency action, despite the Department’s representations to the contrary. The court in Texas v. U.S. issued a nationwide preliminary injunction of the guidance, ruling that the Department’s promulgation of the guidance was inconsistent with notice and comment rulemaking, and, as perhaps relevant here, the guidance itself was inconsistent with the text of the relevant statute, Title IX and its implementing regulations.

Any inconsistencies between the CARES Act guidance and ESEA, particularly related to equitable funding requirements, could thus result in litigation. The economic impact on high-poverty school districts, whether prospective or realized, could potentially result in the issuance of an injunction against this guidance. The threat of litigation with such aims could also spur the Department to revise its guidance.

The K-12 education attorneys at Husch Blackwell will continue to monitor and evaluate developing legal and practical considerations for educational institutions in response to COVID-19. Husch Blackwell’s own guidance relating to a host of issues, including labor and employment, data security and privacy, and healthcare considerations are available in the firm’s Coronavirus Toolkit, which is updated on an ongoing basis.

Contact Us

Questions regarding this guidance or your institution’s response to the COVID-19 outbreak can be directed to COVID19response@huschblackwell.com. Additionally, you can contact John Borkowksi, Aleks Rushing, Mary Deweese, Paige Duggins-Clay or your Husch Blackwell education law contact.

Continue Reading Department of Education Issues Controversial Guidance on Distribution of Education Stabilization Funds

On May 19, 2020, the CDC released considerations for schools to supplement any state or local regulations with which schools must comply.  In general, the more humans interact, and the longer the interaction, the higher the risk of COVID-19 spread.  While the lowest risk is students and teachers participating in virtual-only classes, activities, and events, there are precautions schools may follow to help minimize risk to the school community.  Those precautions include personal prevention practices like handwashing, developing new policies, modifying school layouts, and preparing for when someone becomes ill. Continue Reading Centers for Disease Control and Prevention (CDC) Considerations for Schools

The outbreak of the novel coronavirus (COVID-19) has presented unprecedented challenges for public and private educational institutions across the country. As schools evaluate how to move forward, Husch Blackwell and our entire Education team is continually monitoring and responding to federal and state guidance on this issue. We have various resources ready to assist you immediately.  We discuss those resources below and assure you that we will keep them updated as new guidance is issued as the situation evolves.

Executive Action

In response to the extraordinary public health threat posed by COVID-19, President Donald J. Trump declared a national emergency on March 13, 2020. Continue Reading Federal COVID-19 Resources for Education Institutions

Title VI Obligations

School districts have an obligation under Title VI not to discriminate on the basis of race, color or national origin. They cannot intentionally discriminate – that is, for example, treat African-American students differently than white students on the basis of race – or engage in practices that have a disparate impact on students of a certain race without having a substantial legitimate justification necessary to its educational mission.

In addition, school districts also have an obligation to address student-on-student harassment or discrimination.  Specifically, they must prevent or address any peer-to-peer racial harassment that is sufficiently serious as to create a hostile environment, or, in other words, harassment that denies or limits a student’s ability to participate in or benefit from school. A district can be liable for intentional discrimination under Title VI when it is deliberately indifferent to such peer-to-peer harassment.

Office for Civil Rights

 The U.S. Department of Education’s Office for Civil Rights (“OCR”) has the authority to investigate claims of racial discrimination and harassment under Title VI, but it is not necessary for students to go through OCR prior to filing a lawsuit. As of August 30, 2019, OCR had more than 1,400 open Title VI investigations – 285 of these were related to alleged racial harassment

Unlike with OCR investigations, there is no central database compiling all the lawsuits filed in courts throughout the country alleging Title VI violations by school districts, but in recent years, there appears to be a trend of some students foregoing OCR complaints and filing claims of race-based harassment and bullying directly in federal court. We discuss one current example below.

T.B. et al. v. Independent School District 112

 In September, six current and former African-American students of a suburban Minnesota school district and their parents filed a nearly 50-page federal lawsuit against the District, alleging pervasive race discrimination. African-American students make up only 3.3% of the student population in the District, and there are very few district staff who are African-American, including no teachers and, until recently, no administrators. Plaintiffs are requesting both injunctive relief – meaning, that the court or jury find that the District violated the law and require the District to come into compliance – and monetary damages.

 The complaint alleges that white students in the District wore blackface on multiple occasions, including once at a high school football game and another time in a photograph that was later printed in the yearbook. The students also allege they were subject to physical assaults, verbal slurs, and a death threat from other students on the basis of their race. Furthermore, the students state that the District treated them differently than white students – including, but not limited to, by disciplining African-American students at higher rates than their white peers. The students allege that four of them left the District due to “rampant racism” and the District’s purported failure to address this racism.

The lawsuit arises under the Equal Protection Clause of the Fourteenth Amendment of the US Constitution, Title VI of the Civil Rights Act of 1964, and the Minnesota Human Rights Act. The students purport that the alleged harassment, discrimination, and disparate treatment on the basis of race has deprived them of equal access to the educational environment. Specifically, the District has been accused of failing to appropriately investigate and respond to reports of harassment and discrimination, failing to enforce its anti-discrimination policies, and failing to train staff on recognizing, addressing and preventing discrimination and harassment.  The complaint includes some description of steps the District has taken, or has stated it intends to take, in response to various incidents, but the students’ position is that no “meaningful action” has been taken to combat the racism, discrimination, and harassment.

In its Answer, Independent School District 112 denied any violation of Title VI, the Minnesota Human Rights Act, or the Constitution. The District alleged that it annually trains staff on responding to discrimination, harassment and violence, alleged that it has taken action to address more than half of the issues presented in an April 2019 petition from a community group (“Residents Organizing Against Racism”), and denied that there was any systemic racism in the District. The District also raises affirmative defenses in its answer, including but not limited to requesting that the students’ claims should be severed from each other and stating that all actions the District took with respect to the students were supported by legitimate, non-discriminatory reasons.

The T.B. v. ISD 112 case is currently ongoing, and the parties were ordered to meet for a settlement conference late last week. Most federal litigation is resolved prior to trial, whether at the summary judgment stage (where the judge determines the merits of the case, or the merits of discrete issues in the case, based on a lack of genuine dispute about the material facts in the case) or through settlement. However, some cases – including some Title VI cases involving peer-on-peer harassment or bullying – are resolved through jury trials. In 2012, for example, a federal court of appeals upheld the one million dollar judgment awarded to a New York student for a school district’s deliberate indifference to racial harassment that included slurs, threats, and physical attacks.

What this Means for You

When a school district knows – or reasonably should know – that racial harassment is occurring, it should take immediate and appropriate steps to investigate and respond to the harassment. The district’s action must be reasonably calculated to remedy the hostile environment and prevent the harassment from reoccurring. While these steps are important after an allegation of harassment is raised, it is equally important to maintain and enforce policies and procedures that communicate to your school’s community the importance of reporting and not tolerating any type of harassment, including race-based bullying. Ensuring that school personnel are trained in how to identify and report harassment and how to properly investigate and mitigate its effects is crucial to maintaining a safe environment for all students.