The second major COVID-19 relief bill, approved by Congress at the end of 2020, provides more funding for public schools than the previous CARES Act legislation passed in March: approximately $58 billion in total, while also reserving up to $2.75 billion for private schools.

This is good news because the nation’s public schools have great need for this latest, but hopefully not last, infusion of federal funding to shore up remote learning, make every effort to reopen in person safely, and provide students with academic and social-emotional supports. Another positive is the fact that the relief package places substantial limitations on the funds earmarked for private schools – far more constraints than in initial proposals – including a prohibition on states’ use of these funds to establish private school voucher programs.

As in the CARES Act, some of the new law’s K-12 education aid will be distributed through the Governor’s Emergency Education Relief (GEER) Fund. This includes the $2.75 billion reserved for Emergency Assistance to Non-Public Schools (EANS).

The many restrictions on the EANS funds for private schools include:

• Each state’s allotment is proportionate to its population of private school students from low-income families, and state education agencies must prioritize non-public schools that enroll low-income students;
• Permissible uses of the EANS funds are narrowly limited to COVID-related expenses, such as personal protective equipment, ventilation, and supports for remote learning;
• Most EANS funds are not provided directly to private schools, but rather must remain in the control and under the supervision of public agencies, such as state education departments;
• Services or assistance provided to private schools must be “secular, neutral, and non-ideological;”
• Private schools receiving services or assistance through EANS funds cannot also receive Payroll Protection Program (PPP) loans;
• With the narrow exception of continuing to fund vouchers that were supported by CARES Act dollars, EANS funds cannot be used for any type of private school voucher program or to provide financial assistance to voucher-granting organizations.

Many of these restrictions are responsive to public outrage over inappropriate uses of CARES Act funds for private education and successful court challenges to attempts to illegally funnel those funds to private schools. In a notorious example, South Carolina Governor Henry McMaster’s attempt to use the majority of his GEER funds to establish a voucher program to benefit private schools was struck down as unconstitutional by the state’s Supreme Court.

Former Secretary of Education Betsy DeVos and the Trump Administration also attempted to use CARES Act funds to inappropriately subsidize wealthy and elite private schools, including those that simultaneously received PPP loans. The CARES Act required public school districts to share a portion of their emergency funding with private schools through the provision of “equitable services,” in amounts calculated under a well-known formula contained in Title I of the Every Student Succeeds Act. But former Secretary DeVos enacted a regulation that would have illegally forced districts to spend dramatically inflated amounts on private school services. Successful litigation – in which PFPS partner organizations represented the NAACP along with public school districts and families—invalidated this regulation nationwide. The new COVID relief bill has no requirement to use the latest round of federal relief funding on equitable services for private school students.

The pandemic continues to disproportionately impact students from families with limited income, students of color, students with disabilities, and others who are typically served by our public schools. The Biden Administration and state officials should stand firm on the strict limits on private school funding in the latest federal legislation. Likewise, public school advocates must remain vigilant to ensure EANS funds for private schools are not spent outside the strict parameters set by the legislation, and no additional funds from the last relief package are diverted to private education. As Congress prepares to pass additional, much-needed emergency legislation, federal funds must be directed to public education rather than diverted to private schools.

Public Funds Public Schools is a national campaign that strives to ensure all public funds for education are used to maintain, support, and strengthen public schools. PFPS is supported by the Southern Poverty Law Center, SPLC Action Fund, and Education Law Center.