The window for the submission of applications for federal assistance under the first round of Emergency Assistance to Non-Public Schools (EANS) is set to close at 5:00 p.m. (PT) on April 26, 2021. Application is made online via a web portal accessible on this California Department of Education (CDE) webpage. The application must be accompanied by a cover sheet that is to be completed and uploaded as per directions provided in the application.

EANS (1)* funding flows from a $2.75 billion appropriation enacted by Congress as part of the Coronavirus Response and Relief Supplemental Appropriations Act of 2021. The funds are intended to provide services and assistance to nonprofit private schools offering instruction in any of grades K-12, inclusive, that were negatively impacted by the COVID-19 pandemic. Private schools that have either received, or expect to receive second-round Payroll Protection Program loans/grants may not make application for EANS (1) assistance.

EANS (1) funds may be used to provide services and assistance to eligible private schools whose applications will have been submitted in a timely and approvable manner. The amount of funding available to serve and/or assist a particular school will be determined by two factors: b) enrollment; and, b) the number of "low-income students" enrolled. A base per-pupil allocation (PPA) will be generated by each student who does not meet the "low-income" criterion, while those students meeting the criterion will generate 120 percent of the base PPA. (Methods by which students meeting the "low-income" criterion may be identified can be found in item "C-11" of this guidance document issued by the U.S. Department of Education).

"Assistance" has been interpreted to include reimbursement for permissible expenses (incurred on, or subsequent to March 13, 2020) that include items such as:

• Supplies to sanitize, disinfect, and clean school facilities;
• Personal protective equipment (PPE); and,
• Physical barriers to facilitate social distancing.

 Reimbursement may also be received for durable items, including:

• Educational technology;
• Portable air purification systems; and,
• Leasing sites or spaces to ensure social distancing.

Applicants should note that receipt of reimbursement for certain durable items entails transfer of ownership to the California Department of Education. Reimbursements will become available within six months of the approval of an application. Guidance issued by the U.S. Department of Education makes it clear that a private school receiving reimbursement under EANS (1) will not be deemed a "recipient of federal financial assistance." The law also requires that EANS (1) funding be used to provide services and/or assistance of a secular, neutral, and non-ideological nature.

Permissible services include initiating and maintaining education and support services, or assistance for remote or hybrid learning, or to address learning loss. Services will either be provided directly by the CDE, or via a third-party provider of service contracted by CDE. Notably, the EANS (1) statute requires all funds to be obligated (i.e., contractually committed, or otherwise committed by written agreement) within six months of the date the state received its EANS (1) allocation. This places the deadline for the obligation of funds sometime in the first half of August, 2021. Though funds must be obligated within the six-month window, they may be expended through September 30, 2023.

The EANS (1) implementation process appears to be taking the following form:

Please send requests for confirmation at the earliest possible date, mindful that the deadline for the submission of EANS (1) applications is 5:00 p.m. on Monday, April 26, 2021.    

In sparsely populated Maine, it so happens that fewer than half of the state's 260 school districts operate a public high school. To assure access to a publicly-funded secondary level education for students residing in such districts Maine provides a tuition-assistance program. The program enables children to be enrolled in high schools of their parents' choosing, whether public or private, with the state picking up the tab, even if parents opt to send their children to schools located out of state.

There is, however, a limitation. The state will only assume the cost of education if it is provided by "...a nonsectarian school in accordance with the First Amendment of the United States Constitution."

The exclusion of religious schools from Maine's tuition assistance program posed a problem for David and Amy Carson, whose daughter Olivia is currently a senior at Bangor Christian Schools. Though the high school is fully accredited by the New England Association of Schools and Colleges, and is classified by the Maine Department of Education as a "private school approved for attendance purposes," it is, undeniably, a religious school. And while the Carsons would very much have liked to make application under Maine's tuition assistance program, they desisted from doing so. Instead, they (together with two other families) turned to the courts.

The initial complaint was filed in a federal district court, in 2018, not long after the U.S. Supreme Court's decision in Trinity Lutheran v. Comer. As the district court noted in its ruling, several justices who sided with the majority in Trinity Lutheran v. Comer stated in a footnote (appearing in the majority decision) that, "[t]his case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." That was enough for the district court to dismiss the parents' claims.

In July, 2019, the parents appealed the decision to the U.S. Court of Appeals for the First Circuit, which adjudicated the case over virtually the same time period as the U.S. Supreme Court was considering Espinoza v. Montana Department of Revenue. In its 5-4 ruling in Espinoza, SCOTUS held that if a state provides aid enabling students to attend private schools, it can't single out religious schools as ineligible on the basis of such schools' religious status. As Chief Justice John Roberts wrote in the majority opinion: "A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious."

In his cautiously worded statement, Chief Justice Roberts left room for a distinction to be drawn between discrimination on the basis of religious status, and discrimination on the basis of religious use (of public funds). The distinction was noted in a concurring opinion authored by Associate Justice Neil Gorsuch, who wrote: "The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly."

The distinction between religious status and religious use wasn't lost upon the U.S. Court of Appeals for the First Circuit, which also ruled in favor of the state. Contained in that court's ruling was the following finding: "Espinoza made clear, moreover, that discrimination in handing out school aid based on the recipient's affiliation with or control by a religious institution differed from discrimination in handing out that aid based on the religious use to which the recipient would put it."  

The National Catholic Educational Association has named Lincoln Snyder as its next President and CEO, effective July 1, 2021. At that time, Mr. Snyder, who currently serves as Executive Director of Schools at the Roman Catholic Diocese of Sacramento, will take the reins at the largest, private professional education association in the world. NCEA's 140,000 member-educators serve 1.6 million students. NCEA announced the appointment, here.

Prior to assuming his leadership role at the Diocese of Sacramento in 2015, Mr. Snyder served as an instructor and board chair at Christian Brothers High School, Sacramento. He is a graduate of Georgetown University's School of Foreign Service, and holds a master's degree in Lasallian Leadership from St. Mary's University of Minnesota. Before

	Lincoln Snyder

entering the field of education, he acquired valuable experience in business and real estate, both in the U.S. and abroad.

CaPSPDNow Professional Development

A number of new, federally funded professional development opportunities are available to teachers, administrators and other educators employed in California nonprofit private schools offering instruction in any of grades K-12, inclusive. These continuing professional education programs are underwritten by Title II, Part A of the federal Every Student Succeeds Act, and are "branded" under the banner of "CaPSPDNow." The programs are administered by the Sacramento County Office of Education, through a contract with the California Department of Education.

Upcoming CaPSPDNow programs include:

The next edition of the CAPSO Midweek E-Mailer will be published on May 26, 2021.