The department has yet to announce how they will allocate the CARES Act funding

Wisconsin schools are about to receive a massive influx of federal funding to the tune of $221 millionThis funding is part of the Coronavirus Aid, Relief and Economic Security Act (CARES Act) and is allocated to benefit K-12 schools and institutions of higher education in both the public and private sectors. But a national battle is being waged in D.C. over how this funding should be allocated to K-12 private schools.

In Wisconsin, K-12 private schools are uncertain which side the Wisconsin Department of Public Instruction (DPI) will take. If DPI fails to follow the U.S. Department of Education’s guidance, it will prevent millions of dollars from reaching thousands of private school Wisconsin students.

DPI maintains most of the control over the CARES Act funding, directing nearly all the $174 million to school districts and independent charter schools (through the Elementary and Secondary Schools Emergency Education Relief Act). But federal law requires that K-12 private school students and teachers receive “equitable participation” with these funds. This means local school districts must allocate some funding for use by private schools for their students and teachers. This requirement — and the U.S. Department of Education’s interpretation of the requirement — is now at the heart of the controversy between public school advocates and Secretary Betsy DeVos.

The U.S. Department of Education’s guidance interprets the CARES Act to direct school districts to allocate the equitable portions of the federal funding to include all private school students and schools. But if DPI fails to follow the guidance, it could prevent thousands of Wisconsin students from accessing this funding.

Just in the City of Milwaukee, DPI’s decision could prevent more than 4,000 private school students from accessing over $1.5 million.

*total based on DPI’s allocation of CARES Act ESSER grants
*total based on DPI’s allocation of CARES Act ESSER grants. **private school low-income student enrollment

The U.S. Department of Education’s guidance is effective because it is different than how other federal K-12 dollars are allocated to benefit private school students and teachers. The CARES Act was not passed to specifically benefit schools serving just low-income students, rather it is to benefit all schools that have been impacted by COVID19. For instance, public-school districts may direct their CARES Act funding to any school within their district, regardless of the population of students the school is serving.

The U.S. Department of Education recognized this distinction and explained that school districts must treat private schools in the same manner. Instead of allocating the CARES Act funding to private schools based on the number of low-income families, the guidance requires districts to allocate the funding based on the total number of private-school students in the district.

DPI has not provided any clarification about how the funding should be allocated to Wisconsin private schools. This is to the detriment of public and private schools who need to plan for the allocation of this funding.

And it should not be difficult for DPI to determine where the money will go. The U.S. Department of Education is the government entity with the proper authority to interpret federal law and create guidance to help direct states to follow the law. The guidance related to private schools recognizes that the purpose of the CARES Act education funding was to benefit as many schools, teachers, and students as possible, without limitations.

However, some state education departments, like the Indiana Superintendent of Department of Education and the Pennsylvania Superintendent, have rejected the guidance. Should DPI fail to follow the guidance, it would create a double standard — allowing school districts to allocate the funding as they see fit to their own public schools, while limiting which private schools can access the funding. This contradicts federal law and is a position harmful to private school students and teachers who are equally impacted by COVID-19 and who deserve — and need — access to these federal funds.

Libby Sobic is director and legal counsel for education policy at the Wisconsin Institute for Law & Liberty.