Those of you that tuned into the March 12 webinar were among the first to experience a basic explanation of the new Title I guidance issued by the U.S. Department of Education on March 11. We switched gears slightly to cover the new guidance. There will be additional blogs as we learn more about the new guidance and the implementation, however, below are a few items to consider.

  • This is draft guidance. The Office of Non-Public Education is asking for comments on it by March 26, 2019. You can access the draft guidance at  Comments and suggestions can be sent to [email protected].
  • This guidance takes the place of previous ESSA guidance on equitable services for private school students and the NCLB guidance on Title I participation. Additional guidance is forthcoming that will cover Title VIII of ESSA; this guidance only pertains to Title I.

There is a lot of familiar material in the guidance, such as the description of the consultation process, consultation topics, poverty data collection, educational need. But there is also some new territory covered. Here are few highlights: 

Administrative Requirements for Private School Officials

For the first time (at least to my knowledge), the guidance imposes specific administrative requirements on private school officials. These requirements, while accomplished by the public school district collaboratively with private school officials, have always been the responsibility of the public school officials.

A-14. In general, what documentation does an LEA need from private school officials in order to provide Title I services to eligible students in those schools?

An LEA may request documentation, as needed, from private school officials that enables the LEA to provide equitable services. That documentation includes information to identify private school students who generate funds for equitable services (i.e., they are from low-income families and reside in a participating public school attendance area) and to identify students who are eligible for equitable services (i.e., they reside in a participating public school attendance area and are low- achieving). As part of identifying eligible private school students, private school officials would need to provide information on the achievement of eligible private school students to determine their need for Title I services and, in consultation with public school officials, what services would be provided. Private school officials may also need to identify eligible students who reside in an LEA different from the one in which the private school is located and alert the relevant LEA of the students’ eligibility. (See A-5.)

Obligations of Funds

There is some more specific information contained in the guidance about obligations of funds. This should prove helpful, particularly as private school officials negotiate with public school officials near the end of the year and funds remain available from the proportional share to provide equitable services to private school students.

B-25. What is the purpose of the obligation of funds requirement given that an LEA may carry over funds from a given fiscal year and spend those funds in the succeeding fiscal year?

The purpose of this requirement is to ensure that an LEA uses the funds available under Title I to provide equitable services in the fiscal year for which the funds were appropriated so that eligible students, teachers and other educational personnel, and families receive the services to which they are entitled in a timely manner. This provision reinforces the requirement that an LEA conduct timely consultation with private school officials to design appropriate equitable services so that those services can begin at the beginning of the school year for which the funds are appropriated.

B-26. May an LEA carry over unobligated funds despite this new statutory requirement regarding obligation of funds?

The Department expects that LEAs will comply with the law and obligate the funds allocated for equitable services in the year for which they are appropriated. Occasionally, however, there may be circumstances in which an LEA is unable to obligate all funds within this timeframe in a responsible manner. Examples of such circumstances might include a natural disaster that delayed services for public and private school students or a situation in which an LEA has a small amount of unobligated funds after having provided equitable services that cost less than the amount generated. Under these circumstances, an LEA must carry over the unobligated funds from the proportional share for the provision of equitable services during the subsequent fiscal year. In determining how such carryover funds will be used, the LEA must consult with appropriate private school officials.

B-27. When does an obligation occur?

34 C.F.R. § 76.707 governs when an obligation of Federal funds by an SEA or LEA occurs.**

B-28. How long does an LEA have to meet the obligation of funds requirement in ESEA section 1117(a)(4)(B)?

The applicable fiscal year is the Federal fiscal year, which ends on September 30 of each year. This is the date by which an LEA must obligate funds for equitable services to meet ESEA section 1117(a)(e4)(B). For example, with respect to fiscal year 2017 Title I funds that an LEA received for the 2017-2018 school year, the ESEA requires an LEA to have obligated all of the funds generated for equitable services by September 30, 2018. In other words, the obligation period does not end with the end of the school year. Rather, an LEA may still obligate fiscal year 2017 funds through September 30, 2018 and meet the obligation requirement.

**34CFR 76.707 reads, in part:

  • 76.707 When obligations are made.

The table below shows when a State or a sub-grantee makes obligations for various kinds of property and services.

If the obligation is for —

The obligation is made —

(a) Acquisition of real or personal property

On the date on which the State or sub-grantee makes a binding written commitment to acquire the property.

(b) Personal services by an employee of the State or sub-grantee

When the services are performed.

(c) Personal services by a contractor who is not an employee of the State or sub-grantee

On the date on which the State or sub-grantee makes a binding written commitment to obtain the services.

Title I Services by Religious Organizations

The new policy regarding the provision of Title I services by religious organizations (also announced on March 11) has two policy questions in the new Title I guidance:

C-27. May an LEA contract with a religious organization to provide equitable services?

Yes. An LEA may enter into a contract with a religious organization to provide equitable services on the same basis as any other private entity. Although ESEA section 1117(d)(2)(B) currently indicates that a third-party contractor must be “independent…of any religious organization,” the Department has determined that the specific requirement is unconstitutional in light of the U.S. Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (2017), and has so informed Congress in a letter dated [DATE]. Accordingly, 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.” The Department will, however, continue to enforce all other provisions of ESEA sections 1117, including the requirement that the contractor is independent of the private school for which it is providing services and that the educational services and other benefits being provided by the contractor are “secular, neutral, and nonideological.” (ESEA section 1117(a)(2), (d)(2)(B)). In addition, as with all procurements using Title I funds, an LEA must continue to follow the procurement requirements under the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance) at 2 C.F.R. §§200.317-200.326 and 3474.15.

C-28. What does it mean for a contractor to be independent of the private school in the provision of equitable services?

In general, whether a contractor is independent of a private school in the provision of equitable services depends on the extent to which the contractor has administrative or fiscal direction and control over the private school. For example, an administrative body that oversees a group of affiliated private schools and has control over the schools’ curriculum and hiring policies would not be independent of a private school subject to its authority. As result, an LEA would be prohibited from entering into a contract with the administrative body for the provision of equitable services to its affiliated schools. In contrast, a membership organization with no authority over the operations of its member schools likely would be considered independent of such schools.

In the upcoming weeks, I’ll be posting additional thoughts and comments on the new guidance.  Check this space ( and Michelle Doyle Educational Consulting Facebook page.  You can view the March 12 webinar at