ESSER/GEER guidance highlights
In late May, The U.S. Department of Education released guidance to states and school districts about the use of the multiple federal funds authorized for pandemic response and relief. A review of this guidance clarifies some questions about use of the funds. The guidance itself is not law, but it outlines USDOE interpretation of the laws and how funds may be used.
ESSER and GEER funds may be used for a wide range of allowable activities, a full list of which is available in the guidance on pages 10-12. One clarification states that where funds are authorized to be used for “children with disabilities,” this means children eligible under IDEA and Section 504.
The last listed item on allowable uses of funds is, “Other activities that are necessary to maintain the operation of and continuity of services in the LEA and continuing to employ existing staff of the LEA.” A footnote explains this includes using ESSER funds to avoid layoffs.
The Department goes into more detail that both ESSER and GEER funds may be used to pay teacher salaries and prevent layoffs. This includes other supportable activities in Question D-1 (p.46). The next question, D-2, states that health support staff, such as “…counselors, nurses, social workers, and other health support staff” are included.
The guidance notes, “…an LEA should consider ways that will build short- and long-term capacity and be sustained after the funding is no longer available.” School districts may provide the services directly or by entering into a contract. Subgrants of these funds are not authorized.
Construction and ventilation
Funds may be used for new construction, renovation and remodeling, with the approval of ODE or the Governor’s office. Improvements must be for the purpose of preparing, preventing or responding to COVID-19. Improvements may include HVAC and ventilation testing and work to upgrade or alter existing systems.
If used for HVAC improvements, projects must comply with ASHRAE standards. Making improvements to improve cleaning, such as removing carpet, are approved. (See questions B-6 and B-7)
Modular units may be purchased using federal funds. All projects must comply with federal procurement standards and must pay prevailing wage.
Supporting special education students
The guidance provides specific examples of ways ESSER and GEER funds may be used to provide services and support students with disabilities, whether they have an IEP or 504 plan. These may include hiring additional people to conduct evaluations if they were backlogged or providing transition services.
One interesting suggestion is for transition services and programs, including “coordination of services with agencies involved in supporting the transition of children with disabilities to postsecondary activities.”
If your district had issues due to the pandemic of providing work experience, internships, workshops, or life skills training for students preparing to graduate, these funds may be used to provide those experiences now. This may occur through extended school year services, if necessary.
A (non-exhaustive) list of activities for which the funds may be used may be found at questions C-5 and C-6 of the guidance.
Students who are migratory, homeless, or in foster care
These students may have had trouble accessing instruction via the use of technology and may have simply stopped attending. ESSER and GEER funds may be used to provide outreach to ensure better engagement. This includes better access to technology, including broadband, and for lost instructional time, tutoring and even transportation.
ESSER and GEER funds may be used to assist districts in developing data quality systems to track attendance, analyze and publish data, and monitor trends for early warning signs based on key student indicators.
Other miscellaneous guidance
The guidance make several interesting miscellaneous points for which ESSER and GEER funds may be used:
- Food service (to the extent USDA or other federal program funds are not available), including packaging for grab and go meals, costs of transportation, and additional staff and equipment.
- Paying college application fees for economically-disadvantaged students
- For students who graduated in 2020 or 2021, districts may provide college or career counseling, assistance with entry to job training programs or college applications, financial literacy and more.
- Re-engaging students who have not participated in remote learning and programs to reduce community violence to address social, emotional, mental health and behavioral issues.
- Paying staff overtime to safely reopen schools and keep them open.
There are many specific questions which cannot be addressed in this format, as well as timelines for use of the various funds authorized under different programs.
The guidance may be reviewed here: https://tinyurl.com/4d3ykh2x
In a lengthy decision, the Supreme Court of the United States found that a Pennsylvania High School overstepped when it suspended a student from the cheerleading squad for using social media to criticize her exclusion from a spot on the varsity team and a private softball team. The High Court found the school’s actions to be a violation of the student’s First Amendment rights. However, the Court stopped well short of declaring that all off-campus speech is protected from school-based regulation.
After discovering that she did not make the varsity squad, and while shopping in a convenience store the following weekend, the student at issue (B.L.) took to social media to express her displeasure with the decision in two brief Snapchat posts – one of which included profanity. The posts were initially shared with her social media friends, who shared the posts with other friends, including the child of the cheerleading squad coach. This upset team members and became a topic of chatter in a class taught by another coach. In response, B.L. was suspended from the JV squad for the upcoming year. This spurred the student and her parents to file suit in Federal Court.
After first granting a temporary restraining order and a preliminary injunction ordering the student’s reinstatement to the squad, the trial court ultimately ruled in B.L.’s favor, determining that there was no substantial disruption at the school. Further finding that the discipline violated B.L.’s First Amendment rights, the court awarded nominal damages, attorneys fees, and ordered the school to expunge the discipline from her record. The decision was upheld on appeal, with an added pronouncement that schools within the Third Circuit were not free to discipline for off-campus speech, which was partially defined in the opinion as “speech that is outside school-owned, -operated, or -supervised channels.”
The court went on to conclude that, since the speech here occurred off campus, the standard handed down in the oft-referenced case of Tinker v. Des Moines Independent Community School District (speech that materially disrupts classwork or involves substantial disruption or invasion of the rights of others) did not apply. This very narrow reading of Tinker may have prompted the U.S. Supreme Court to accept review to clarify, among other things, the application of the Tinker standard to student speech that occurs off campus.
In its June 23, 2021 opinion delivered by Justice Breyer, the Supreme Court held that school districts may have a special interest in regulating some off-campus student speech. However, that interest primarily exists only when the Tinker test is applied and in so applying finds that the student speech materially disrupts classwork or involves substantial disorder or invasion of the rights of others. However, unrestricted regulation of any speech that may relate to the school is unauthorized. In this case the Court opined that the student’s speech was not disruptive to the school environment and therefore was subject to First Amendment protection.
What this Means for Schools: While the media may portray this case as a victory for the student, in reality it is largely a carefully worded affirmation that, especially in the present technology age, actions away from school may have a disruptive impact at school. Yet the onus remains with the school to show how that disruption is manifested. The Court also affirmed a school’s authority to apply discipline to extracurricular activities only. Districts are advised to review their board policies, codes of conduct and extracurricular guidelines for the necessary support of disciplinary consequences and notice of the possibility of corrective action for violations of school rules.
Mahanoy Area School District v. B.L. ( Slip Opinion No 20-255)
This case arose because a philosophy professor at Shawnee State University (Portsmouth, Ohio) refused to abide by the University’s policy requiring that he refer students with pronouns corresponding to their gender identity. The professor is a devout Christian whose religious convictions influence his thoughts on human nature, marriage, gender, sexuality, morality, politics, and social issues.
At the start of the 2016-17 school year, the University informed its faculty that they were required to refer to students by their preferred pronouns. The professor was informed that he would be disciplined if he refused to use a pronoun that reflects a student’s self-asserted gender identity. In his class that semester, a student requested to be referred to utilizing the female pronouns, and the professor would not oblige. The professor then requested accommodations for his religious and personal views. The student then filed a Title IX complaint against the professor. The professor’s request for religious accommodations were denied by the University, and the Title IX complaint resulted in a conclusion that the professor created a hostile environment for the students in his class; a violation of the University’s nondiscrimination policies, which resulted in discipline.
Then, the professor filed a lawsuit alleging that the University violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Ohio Constitution, and his contract with the University.
The Sixth Circuit found that First Amendment free speech rules apply differently when it is government speech. Normally when public employees are speaking pursuant to their official duties, they are not speaking as citizens with First Amendment protections: therefore, the Constitution does not protect their speech/communications from employer discipline. However, in this case, the Sixth Circuit highlighted its belief that professors at public universities retain First Amendment protection- at least when engaged in core academic functions, such as teaching and scholarship.
The Court rejected the argument that “…teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). The Court recognized the professor’s rights to academic freedom and freedom of expression within this case, including within that academic freedom the choice to use of pronouns to shape classroom discussion. At the university level, this professor was able to make choices regarding gender identity for appropriate classroom discussion in his political philosophy courses.
In summary, the Court remanded the case back to the lower court for the lower court to issue a decision in compliance with the First Amendment rights recognized by the Sixth Circuit.
What this means for your District
While this case deals with speech from a university professor, and not that of a K-12 educator, it is a good case to be aware of when faced with situations that may arise from staff members who refuse to refer to a transgender student with the student’s preferred pronouns or nicknames. Schools are required to recognize the academic freedoms that exist for educators- but how this will be balanced against the needs of minor students in the future will be one to watch. In this case, the Court was not remotely persuaded by the arguments of the University that a hostile environment was created by the professor’s actions against the transgender students in his class, because the Court was not presented with any evidence or arguments that the student(s) was denied any educational benefits or opportunities.
Meriwether v. Hartop, (C.A. 6, 2021) 992 F.3d 492
In early February, the Ohio House introduced HB 1. This bill, often referred to as the Cupp-Patterson Plan, proposes a significant overhaul of the State’s school funding system. Chief among its objectives is developing a per-pupil funding amount that reflects actual costs, moving away from caps and guarantees, committing to a longer-term plan, and accounting for localized needs. The plan was developed during the prior session of the General Assembly and seemed poised for serious action before COVID-19 disrupted the legislative agenda.
HB 1 has enjoyed broad support among education groups, including disparate groups such as the Ohio School Boards Association and the Ohio Education Association. After it fizzled in the last session, it was widely expected to be a major part of budget debates during the first year of the current session. Not surprisingly, under Speaker Bob Cupp (the “Cupp” of “Cupp-Patterson”) the House passed its budget proposal, HB 110, with HB 1 largely incorporated. The 70-27 vote on April 21 was somewhat bipartisan with 12 Democrats joining the Yeas and 6 Republicans joining the Nays.
Like the House, the Senate is dominated by the Republican Party, but this has not resulted in easy passage of HB 110 and Speaker Cupp’s school funding reform plan. The school funding plan under consideration in the Senate moves away from the six year phase-in of the House plan, and instead provides initially larger increases in per-pupil expenditures with no commitment to longer-term increases. Notably, the Senate plan abandons the highly localized per pupil funding calculations of HB 1, and instead determines a single base cost to apply throughout the state.
Statements from leading Senators indicate a concern that the House plan would lead to unsustainable funding increases. Of particular concern to these Senators is the use of teacher salary increases as part of the calculation in base costs. They argue that increases in pay even since development of the formula mean that costs have already increases by hundreds of millions of dollars. Supporters of the House plan point to a dramatically improved state economy and tax revenues well above estimates as reasons to support an increased commitment to K-12 education. Instead, the Senate budget plan currently proposes a 5% reduction in income taxes.
Both the House and Senate budget plans move to a direct funding system for various school choice programs. This would eliminate the current process that often requires funding to be directed to school districts only to be deducted when a family uses a voucher or enrolls in a charter school. The Senate plan proposes a significant increase in voucher funding and the elimination of some restrictions on the opening of charter schools.
What this means for your District:
Joint testimony from the Ohio School Boards Association, Ohio Association of School Business Officials, and the Buckeye Association of School Administrators has urged adoption of the House plan as part of HB 110. Among other reasons, they point to the longer-term commitments and growth in K-12 funding offered by the House plan. They also point to the extensive efforts to gather stakeholder input to develop the original Cupp-Patterson Plan. Finally, they identify the process of developing an actual input/cost-based approach to identifying appropriate per-pupil funding as critical.
The current state budget expires at the end of June. In most budget years this means the General Assembly passes the new budget during a late night session on or about June 30. However, it must be noted that the current state budget was not passed until nearly two weeks into July 2019 (after a temporary measure was passed to keep the government open). The time is now to share your views on the school funding reform plan, school choice funding, and other matters relevant to K-12 education. Current legislative activity is in the Senate. It is anticipated that in late June there will be a flurry of activity in both chambers as differences between House and Senate budget bills are resolved.