The California Department of Education has published a table showing the amount of funds available to provide services and assistance to nonprofit private schools whose applications for federal Emergency Assistance to Non-Public Schools (EANS) aid have been approved. The sums are groundbreaking, though the actual amount of benefit to be realized by any given school remains unknown.

On July 1, 2021, from 10:30 - 11:30 a.m., the California Department of Education will conduct a webinar in which the requirements and reporting process pertaining to allowable reimbursements for COVID-19 related expenditures and the purchase of permissible durable items (e.g. laptop computers to enable pandemic-necessitated distance learning, portable ventilation equipment, etc.) will be conducted. Preregistration is not required, and information needed to participate in the webinar should become available on the CDE's "Emergency Assistance to Non-Public Schools Program" webpage.

A total of $164,771,890.71 was approved for use by 543 applicants. In most instances, applicants consisted of individual schools. The law does, however, permit an organization that has governing authority over a group of private schools to submit a single application on behalf of those schools, and several such applications were tendered and approved. Some observations of interest:

• The average EANS (1) award was $303,447.31

Over the course of the past several weeks, CAPSO has received a number of inquiries related to understanding the threshold salary level a private school teacher must be paid in order to be deemed an exempt employee in the state of California. Recognizing that the matter can be confusing, we thought it would make sense to briefly review the issue in an E-Mailer article, and furnish links to some resources. Please bear in mind that what follows is not intended as legal advice. Readers seeking legal opinions relative to a particular private school are urged to secure counsel from an attorney who is well versed in the relevant portions of California labor law.

Prior to the enactment of AB 2613 (Mullin) in 2006, there was considerable confusion around the question of whether, and under what circumstances, California private school teachers could be treated as exempt employees. (By 'exempt employee', we mean an employee who is salaried, rather than paid on an hourly basis, and who is not subject to overtime pay.) AB 2613 created a new section of the California Labor Code - Section 515.8 - that established specific criteria to be satisfied in order for a private school teacher to be deemed an exempt employee.

Among the criteria appearing in Labor Code Section 515.8 is a required salary threshold. Initially, the threshold was defined as "a monthly salary equivalent to no less than two times the state minimum wage for full-time employment." The basis for determining the salary threshold was changed with the passage, in 2016, of AB 2230 (Chu). The new method decoupled the calculation of a minimum salary level from a multiple of the state minimum wage. Effective July 1, 2017, to meet the salary threshold requirement for an exempt employee, a private school teacher must earn the greater of the following:

Thus, to determine the minimum salary threshold to be received by an exempt private school teacher employed in a California private school offering instruction in any of grades K-12, the following three salary figures must be obtained:

In the April, 2021 edition of the E-Mailer, we apprised readers of judicial proceedings arising over a decision made by the state of Maine to exclude faith-based schools from its tuition assistance program. In that chain of events, the U.S. Court of Appeals for the First Circuit sided with the state in finding that whereas a state may not discriminate on the basis of religious status, it may do so on the basis of religious use of public funding. The U.S. Supreme Court is currently deciding whether to take up the case.

 

The High Court's decision making may be facilitated by a parallel set of proceedings originating in the state of Vermont. Like Maine's tuition assistance program, Vermont operates a "town tuitioning program" that enables students residing in locales that have no public high schools to attend the high schools of their choosing, including private high schools, elsewhere, at state expense. For the past 21 years, however, the state has prohibited the use of public funds to access an education at a private religious school.

 

A recent ruling of the U.S. Court of Appeals for the Second Circuit effectively struck down Vermont's prohibition. As was true of the Maine proceedings, the decision in the Vermont case also turned upon an interpretation of the U.S. Supreme Court's ruling in Espinoza v. Montana Department of Revenue. The development is reported by the Alliance Defending Freedom, which represented the interests of the prevailing parties in the case, here.

 

When federal appellate courts arrive at conflicting interpretations of a U.S. Supreme Court ruling, it can signal the need for further clarification and elaboration on SCOTUS' part. Can a meaningful distinction between religious status and religious use of funds be fashioned and applied without inviting excessive entanglement of government in the decision making of religious institutions? We should know soon whether SCOTUS is game to supply an answer.

 

The story is also reported in this month's edition of the Council for American Private Education's CAPE Outlook newsletter.

"...the history of federal education policy can be seen as a bipartisan parade of state-based leaders - Governors Lamar Alexander, Bill Clinton, Dick Riley, and George W. Bush - who brought their teams and ideas about standards-and-accountability and school choice to Washington, D.C. Part of their experience involved learning to work with, perhaps even accommodating, the labor unions and other defenders of the status quo as they tried to improve education."

"When the American Federation of Teachers and National Education Association attacked nominee DeVos as "unqualified," they were expressing their concerns about her lack of working with them - not her lack of being a classroom teacher. Although DeVos had worked to improve K-12 education for more than two decades, she had never had to accommodate the status quo. There were no signs that she would start doing so in 2017. And she didn't."

President Joe Biden wasted no time in signaling to the nation's teachers unions that better times were at hand. On his first full day in office, National Education Association President Becky Pringle, and American Federation of Teachers President Randi Weingarten found themselves in the White House as guests of Dr. Jill Biden, herself an educator. During the course of her husband's presidential campaign, the future First Lady promised that if Mr. Biden were to win the highest office in the land, the teachers unions "will always have a seat at the table." Now ensconced in the White House, Dr. Biden told the two national union leaders, "Joe is going to be a champion for you because he knows that's the best way to serve our students."

Approximately six weeks later, President Biden affixed his signature to the American Rescue Plan Act of 2021, a $1.9 trillion behemoth COVID-19 emergency relief bill, in which more than $120 billion was designated for the nation's K-12 public schools. The massive federal appropriation, alongside the Coronavirus Preparedness and Response Supplemental Appropriations Act and the CARES Act, provide K-12 public schools with a combined $190 billion dollars. That's roughly $3,700 per-pupil. It's so much additional money that states and local public school districts are having trouble figuring out how to use it all.

 

Part of the "problem" faced by states and districts arises from the one-time nature of the aforementioned appropriations, and the restrictions they place on the permissible uses of funding. Think of a nonprofit organization that has received a generous grant from a foundation, or other benefactor. Much as the recipient might wish to use some of the money to expand its operations, it must adhere to the requirements established by the donor and, even in the event that flexibility is available, must worry about sustainability following the expiration of the grant.

 

Receipt of recurring funding would solve the challenge of sustainability. Which is why the additional sum of $20 billion proposed for Title I funding in President Biden's FY 2021-22 budget request is precisely the sort of "championing" the teachers union leaders had hoped to receive. Twenty billion dollars may seem a modest sum in comparison with $190 billion. But in the long game played by the unions - and assuming Congress actually agrees to appropriate such an amount - the $20 billion bump-up in Title I funding will be gold.

 

Title I is the flagship component of the federal Elementary and Secondary Education Act, originally enacted by Congress in 1965 as part of President Lyndon B. Johnson's "War on Poverty." The purpose of the program is to provide supplementary educational assistance to those students at greatest risk of academic failure. Title I services to public school students are delivered, primarily, by teachers and other certificated personnel. In other words, by members of the teachers unions.

Imagine that 80 percent of the proposed $20 billion increase in Title I funding was to be used to increase the program's professional labor force. Such an allocation could permit the hiring of 200,000 additional certificated employees (read "union members"). While state and local teachers union dues vary widely, at the conservative estimate of $500 per-member, the unions would stand to reap a cool $100 million windfall. On top of that, the National Education Association could count on an additional influx of $24 million, with a proportionate amount accruing to the American Federation of Teachers. (In California, full-time teachers who are members of the California Teachers Association currently pay $737 in annual CTA dues, with an additional $200 tacked on for the NEA.)

Importantly, if Congress makes good on the President's request for an additional $20 billion in discretionary Title I spending, the new funding level will be unlikely to face rollbacks in future years. Title I, in existence for more than 55 years, is something of a sacred cow. It has also become a full-fledged industry, one that - for-better-or-for-worse - is sure to benefit from the disruptions imposed by the COVID-19 pandemic, the accompanying loss of learning, and the disproportionate deprivations suffered by the economically disadvantaged. One can only but hope that the massive investment of federal funding will accrue to the benefit of these children. One can be certain, however, that the teachers unions will be enriched (literally so) by dint of the government's largesse.

Remarkably, the National Education Association and the American Federation of Teachers now represent one of every four U.S. union members in the United States. That datum is explained, in part, by continuing shrinkage in private union membership. More significantly, public employee unions can and do engage in electoral politics designed to install the "management" with whom they then negotiate, making their power self-perpetuating. With a champion in the White House, former staffers appointed to key positions within the U.S. Department of Education, and a generous Congress, the teachers unions are feeling their oats.

 

The next edition of the CAPSO Midweek E-Mailer will be published on September 15, 2021. Enjoy your summer, everyone!