President-elect Joe Biden has selected Connecticut Education Commissioner Miguel Cardona as his nominee for US secretary of education. The president-elect had promised to appoint a public school educator to the post, and Cardona has served as a public school teacher, principal, and district administrator, in addition to his current role as Connecticut's top education official. Hearings on his nomination are not expected to begin until the end of January or perhaps later, however Mr. Cardona could begin serving as acting secretary immediately after the January 20 presidential inauguration.

Betsy DeVos tendered her resignation as secretary of education effective January 8 following the riot at the United States Capitol. In a statement, Bill Oberndorf, Chairman of the American Federation of Children, thanked her "for her tireless efforts and dedication to the principles that have always guided her. She consistently and selflessly put students at the forefront of the national discussion of reforming our K-12 education system, and she fought courageously to expand opportunities for lower-income and disadvantaged families in particular...Her lasting legacy will be that she substantially increased the momentum for K-12 educational choice expansion across our country."

Those of us at CAPE will always be grateful for her generosity with her time and her strong support for private schools.

As mentioned above, the new COVID relief bill authorizes a new round of Paycheck Protection Program loans, to the tune of $284 billion. The program will be phased in starting the week of January 11.

In order to receive full loan forgiveness, the rule requiring that a borrower use at least 60% of the loan for payroll costs and not more than 40% for nonpayroll costs remains in effect.

Borrowers are eligible for a second-draw PPP loan of up to $2 million, provided they have 300 or fewer employees and can demonstrate that their gross receipts in any 2020 quarter are at least 25% less than the same 2019 quarter.

Private schools that accept a second draw of PPP will not be eligible for the Emergency Assistance to Non-Public Schools program described above.

For more information, including newly allowable uses of the loans, see this SBA release.

School choice advocates were disappointed to see that the new COVID relief bill closed down the ability of governors to use Governor’s Emergency Education Relief (GEER) funds for scholarships. Four states are believed to have attempted to use CARES Act GEER funds for scholarships. However, during negotiations over the new relief bill, choice opponents demanded an end to that policy as the price to be paid for the Emergency Assistance to Non-Public Schools program described above (existing scholarships will be allowed to be funded through the end of the school year, however).

A week after Congress passed the COVID bill with the no-scholarships restriction, President Trump issued an executive order that allows states to use Community Service Block Grants (CSBG) funds to provide emergency K-12 scholarships to low-income families whose children cannot access in-person learning. According to the executive order, scholarships provided with CSBG funds can be used for private school tuition, home schooling, micro schooling, learning-pod expenses, special education services, or tutoring.

The list of the CSBG points of contact in the states can be found here.

It remains to be seen whether the incoming Biden administration will continue or reverse this policy.

Private schools have for years been fighting for the right to be reimbursed by the state for the expense of complying with state-imposed health and safety mandates, a challenging undertaking given that the Michigan Constitution has the strictest prohibition on public support for private education (or “Blaine Amendment") in the country. A tie on the Michigan Supreme Court has effectively allowed those reimbursements to proceed, though it is expected that the issue is not yet settled.

Meanwhile, on December 7, the Michigan CAPE (MANS -- the Michigan Association of Nonpublic Schools) filed a lawsuit in federal court claiming that a state health department order closing religious high schools is not supported by evidence of safety and violates the First Amendment right to practice religion. Ultimately, the case was dismissed as moot because the state issued a new order allowing schools to reopen.

From the AP on December 31:

"A federal appeals court Thursday provided the go-ahead for Christian schools in an Ohio county to resume holding in-person classes during the pandemic. The 6th U.S. Circuit Court of Appeals three-judge panel unanimously granted an injunction to Christian schools in the Toledo area who say their rights to religious expression have been violated by the Lucas County-Toledo Health Department’s order shutting down all schools for grades 7-12. Their attorneys pointed out that the order for all schools, public, private and parochial, aimed at stopping COVID-19 spread still allowed non-religious businesses such as gyms, office buildings and a casino to remain open." According to the ruling, the health department's order, "when measured against the more favorable treatment afforded these secular actors, amounts to a prohibition of religious exercise in violation of the First Amendment."

On December 14, the Department of Education announced a joint final rule with eight other agencies designed to ensure equal treatment for religious and non-religious organizations in federal programs. According to a Department release, the rule "removes requirements in prior regulations that placed unequal burdens on religious organizations, cast unwarranted suspicion on them, and were in tension with their religious liberty rights. This final rule also clarifies that religious organizations do not lose various legal protections because they participate in federal programs and activities, such as the rights to accommodations and conscience protections under the First Amendment, Religious Freedom Restoration Act, and other federal laws."

Secretary DeVos was quoted as saying, "We’re continuing to ensure faith-based organizations, including faith-based institutions, do not give up their First Amendment rights as a condition of participating in taxpayer programs. We will continue to ensure faith-based educational providers are treated equally alongside their secular counterparts."

A study by the Cato Institute’s Corey DeAngelis and Western Carolina University economist Angela Dills suggests that "private schooling reduces the likelihood that individuals report having mental health issues as adults." The study was reported on in an editorial by the Wall Street Journal titled "School Choice: Better Than Prozac."

According to the Journal, "The researchers also looked for any correlation between students who attended private school as teenagers and their mental health as adults. After controlling for socioeconomic factors, individuals who attended private schools were two percentage-points less likely to report a mental health condition when they were roughly 30 years old. 'It’s likely that private schools face stronger competitive pressures to provide a safer school environment and improve mental health if they want to remain open,' Ms. Dills explains. 'Public schools, on the other hand, are more likely to be burdened with government regulations that make it difficult for them to control discipline policy and create strong school cultures.'"

Currently, every state with charter schools forbids religious charters. However, a recent report by Notre Dame law professor Nicole Stelle Garnett proposes that "in most states, charter schools ought not to be considered, for federal constitutional purposes, 'state actors.'" As a result, "Since they are not state actors, they are effectively private schools and can be religious without running afoul of the Establishment Clause."

The report and its conversation-provoking conclusions assess the legal landscape post-Espinoza, the landmark decision last summer in which the Supreme Court ruled that religious schools cannot be excluded from school choice programs accessible by secular private schools.

The potential for religious charter schools is a subject private schools will need to pay careful attention to in the coming days.

The top story of this edition of Outlook describes the new Emergency Assistance to Non-Public Schools (EANS) program passed by Congress. According to the law, EANS funds can be used for the following purposes:

(A) supplies to sanitize, disinfect, and clean school facilities;

(B) personal protective equipment;

(C) improving ventilation systems, including windows or portable air purification systems to ensure healthy air in the non-public school;

(D) training and professional development for staff on sanitation, the use of personal protective equipment, and minimizing the spread of infectious diseases;

(E) physical barriers to facilitate social distancing;

(F) other materials, supplies, or equipment to implement public health protocols, including guidelines and recommendations from the Centers for Disease Control and Prevention for the reopening and operation of school facilities to effectively maintain the health and safety of students, educators, and other staff during the qualifying emergency;

(G) expanding capacity to administer coronavirus testing to effectively monitor and suppress coronavirus, to conduct surveillance and contact tracing activities, and to support other activities related to coronavirus testing for students, teachers, and staff at the non-public school;

(H) educational technology (including hardware, software, connectivity, assistive technology, and adaptive equipment) to assist students, educators, and other staff with remote or hybrid learning;

(I) redeveloping instructional plans, including curriculum development, for remote learning, hybrid learning, or to address learning loss;

(J) leasing of sites or spaces to ensure safe social distancing to implement public health protocols;

(K) reasonable transportation costs;

(L) initiating and maintaining education and support services or assistance for remote learning, hybrid learning, or to address learning loss.

The law also allows EANS funds to be used to reimburse schools for purchases already made for these purposes, EXCEPT for the items listed in paragraphs C, D, I, and L -- those items are not eligible for reimbursement (with the strange caveat that portable air purification systems are an allowable reimbursable expense). Unlike new purchases, reimbursements could constitute federal financial assistance and thus trigger the strings that come attached to such status.