Part E—Uniform Provisions

Part Referred to in Other Sections

This part is referred to in section 8802 of this title.

§8891. Maintenance of effort

(a) In general

A local educational agency may receive funds under a covered program for any fiscal year only if the State educational agency finds that either the combined fiscal effort per student or the aggregate expenditures of such agency and the State with respect to the provision of free public education by such agency for the preceding fiscal year was not less than 90 percent of such combined fiscal effort or aggregate expenditures for the second preceding fiscal year.

(b) Reduction in case of failure to meet

(1) In general

The State educational agency shall reduce the amount of the allocation of funds under a covered program in any fiscal year in the exact proportion to which a local educational agency fails to meet the requirement of subsection (a) of this section by falling below 90 percent of both the combined fiscal effort per student and aggregate expenditures (using the measure most favorable to such local agency).

(2) Special rule

No such lesser amount shall be used for computing the effort required under subsection (a) of this section for subsequent years.

(c) Waiver

The Secretary may waive the requirements of this section if the Secretary determines that such a waiver would be equitable due to—

(1) exceptional or uncontrollable circumstances such as a natural disaster; or

(2) a precipitous decline in the financial resources of the local educational agency.

(Pub. L. 89–10, title XIV, §14501, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3901.)

Section Referred to in Other Sections

This section is referred to in sections 6322, 6434 of this title.

§8892. Prohibition regarding State aid

A State shall not take into consideration payments under this chapter (other than under subchapter VIII) in determining the eligibility of any local educational agency in such State for State aid, or the amount of State aid, with respect to free public education of children.

(Pub. L. 89–10, title XIV, §14502, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3902.)

Section Referred to in Other Sections

This section is referred to in section 8881 of this title.

§8893. Participation by private school children and teachers

(a) Private school participation

(1) In general

Except as otherwise provided in this chapter, to the extent consistent with the number of eligible children in a State educational agency, local educational agency, or educational service agency or consortium of such agencies receiving financial assistance under a program specified in subsection (b) of this section, who are enrolled in private elementary and secondary schools in such agency or consortium, such agency or consortium shall, after timely and meaningful consultation with appropriate private school officials, provide such children and their teachers or other educational personnel, on an equitable basis, special educational services or other benefits under such program.

(2) Secular, neutral, and nonideological services or benefits

Educational services or other benefits, including materials and equipment, provided under this section, shall be secular, neutral, and nonideological.

(3) Special rule

Educational services and other benefits provided under this section for such private school children, teachers, and other educational personnel shall be equitable in comparison to services and other benefits for public school children, teachers, and other educational personnel participating in such program.

(4) Expenditures

Expenditures for educational services and other benefits provided under this section to eligible private school children, their teachers, and other educational personnel serving such children shall be equal, taking into account the number and educational needs of the children to be served, to the expenditures for participating public school children.

(5) Provision of services

Such agency or consortium described in subsection (a)(1) of this section may provide such services directly or through contracts with public and private agencies, organizations, and institutions.

(b) Applicability

(1) In general

This section applies to programs under—

(A) part C of subchapter I of this chapter (migrant education);

(B) subchapter II of this chapter (other than section 6623 of this title and part D of such subchapter);

(C) subchapter VII of this chapter;

(D) subchapter III of this chapter (other than part B of such subchapter) (Star Schools); and

(E) part A of subchapter IV of this chapter (other than section 7114 of this title).

(2) "Eligible children" defined

For the purposes of this section, the term "eligible children" means children eligible for services under a program described in paragraph (1).

(c) Consultation

(1) In general

To ensure timely and meaningful consultation, a State educational agency, local educational agency, educational service agency or consortium of such agencies shall consult with appropriate private school officials during the design and development of the programs under this chapter, on issues such as—

(A) how the children's needs will be identified;

(B) what services will be offered;

(C) how and where the services will be provided; and

(D) how the services will be assessed.

(2) Timing

Such consultation shall occur before the agency or consortium makes any decision that affects the opportunities of eligible private school children, teachers, and other educational personnel to participate in programs under this chapter.

(3) Discussion required

Such consultation shall include a discussion of service delivery mechanisms that the agency or consortium could use to provide equitable services to eligible private school children, teachers, administrators, and other staff.

(d) Public control of funds

(1) In general

The control of funds used to provide services under this section, and title to materials, equipment, and property purchased with such funds, shall be in a public agency for the uses and purposes provided in this chapter, and a public agency shall administer such funds and property.

(2) Provision of services

(A) The provision of services under this section shall be provided—

(i) by employees of a public agency; or

(ii) through contract by such public agency with an individual, association, agency, or organization.

(B) In the provision of such services, such employee, person, association, agency, or organization shall be independent of such private school and of any religious organization, and such employment or contract shall be under the control and supervision of such public agency.

(C) Funds used to provide services under this section shall not be commingled with non-Federal funds.

(Pub. L. 89–10, title XIV, §14503, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3902; amended Pub. L. 105–277, div. A, §101(f) [title VIII, §101(b)(6)], Oct. 21, 1998, 112 Stat. 2681–337, 2681-407.)

Amendments

1998—Subsec. (b)(1)(B). Pub. L. 105–277 substituted "part D" for "part C".

Section Referred to in Other Sections

This section is referred to in sections 8894, 8895, 8896 of this title.

§8894. Standards for by-pass

If, by reason of any provision of law, a State educational agency, local educational agency, educational service agency or consortium of such agencies is prohibited from providing for the participation in programs of children enrolled in, or teachers or other educational personnel from, private elementary and secondary schools, on an equitable basis, or if the Secretary determines that such agency or consortium has substantially failed or is unwilling to provide for such participation, as required by section 8893 of this title, the Secretary shall—

(1) waive the requirements of that section for such agency or consortium; and

(2) arrange for the provision of equitable services to such children, teachers, or other educational personnel through arrangements that shall be subject to the requirements of this section and of sections 8893, 8895, and 8896 of this title.

(Pub. L. 89–10, title XIV, §14504, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3903.)

Section Referred to in Other Sections

This section is referred to in section 8896 of this title.

§8895. Complaint process for participation of private school children

(a) Procedures for complaints

The Secretary shall develop and implement written procedures for receiving, investigating, and resolving complaints from parents, teachers, or other individuals and organizations concerning violations of section 8893 of this title by a State educational agency, local educational agency, educational service agency, or consortium of such agencies. Such individual or organization shall submit such complaint to the State educational agency for a written resolution by the State educational agency within a reasonable period of time.

(b) Appeals to Secretary

Such resolution may be appealed by an interested party to the Secretary not later than 30 days after the State educational agency resolves the complaint or fails to resolve the complaint within a reasonable period of time. Such appeal shall be accompanied by a copy of the State educational agency's resolution, and a complete statement of the reasons supporting the appeal. The Secretary shall investigate and resolve each such appeal not later than 120 days after receipt of the appeal.

(Pub. L. 89–10, title XIV, §14505, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3904.)

Section Referred to in Other Sections

This section is referred to in sections 6321, 8894 of this title.

§8896. By-pass determination process

(a) Review

(1) In general

(A) The Secretary shall not take any final action under section 8894 of this title until the State educational agency, local educational agency, educational service agency, or consortium of such agencies affected by such action has had an opportunity, for not less than 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary to show cause why that action should not be taken.

(B) Pending final resolution of any investigation or complaint that could result in a determination under this section, the Secretary may withhold from the allocation of the affected State or local educational agency the amount estimated by the Secretary to be necessary to pay the cost of those services.

(2) Petition for review

(A) If such affected agency or consortium is dissatisfied with the Secretary's final action after a proceeding under paragraph (1), such agency or consortium may, within 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action.

(B) A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary.

(C) The Secretary upon receipt of the copy of the petition shall file in the court the record of the proceedings on which the Secretary based this action, as provided in section 2112 of title 28.

(3) Findings of fact

(A) The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence and the Secretary may then make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings.

(B) Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.

(4) Jurisdiction

(A) Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set such action aside, in whole or in part.

(B) The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28.

(b) Determination

Any determination by the Secretary under this section shall continue in effect until the Secretary determines, in consultation with such agency or consortium and representatives of the affected private school children, teachers, or other educational personnel that there will no longer be any failure or inability on the part of such agency or consortium to meet the applicable requirements of section 8893 of this title or any other provision of this chapter.

(c) Payment from State allotment

When the Secretary arranges for services pursuant to this section, the Secretary shall, after consultation with the appropriate public and private school officials, pay the cost of such services, including the administrative costs of arranging for those services, from the appropriate allocation or allocations under this chapter.

(d) Prior determination

Any by-pass determination by the Secretary under this Act as in effect on the day preceding October 20, 1994, shall remain in effect to the extent the Secretary determines that such determination is consistent with the purpose of this section.

(Pub. L. 89–10, title XIV, §14506, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3904.)

References in Text

This Act, as in effect on the day preceding October 20, 1994, referred to in subsec. (d), is Pub. L. 89–10, as added by Pub. L. 100–297, title I, §1001, Apr. 28, 1988, 102 Stat. 140, as amended, known as the Elementary and Secondary Education Act of 1965, which was classified generally to chapter 47 (§2701 et seq.) of this title prior to the general amendment of that Act by Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3519.

Section Referred to in Other Sections

This section is referred to in sections 6321, 8894 of this title.

§8897. Prohibition against funds for religious worship or instruction

Nothing contained in this chapter shall be construed to authorize the making of any payment under this chapter for religious worship or instruction.

(Pub. L. 89–10, title XIV, §14507, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3905.)

Section Referred to in Other Sections

This section is referred to in section 8881 of this title.

§8898. Applicability to home schools

Nothing in this chapter shall be construed to affect home schools.

(Pub. L. 89–10, title XIV, §14508, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3905.)

§8899. General provision regarding nonrecipient nonpublic schools

Nothing in this chapter shall be construed to permit, allow, encourage, or authorize any Federal control over any aspect of any private, religious, or home school, whether or not a home school is treated as a private school or home school under State law. This section shall not be construed to bar private, religious, or home schools from participation in programs or services under this chapter.

(Pub. L. 89–10, title XIV, §14509, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3905.)

§8900. School prayer

Any State or local educational agency that is adjudged by a Federal court of competent jurisdiction to have willfully violated a Federal court order mandating that such local educational agency remedy a violation of the constitutional right of any student with respect to prayer in public schools, in addition to any other judicial remedies, shall be ineligible to receive Federal funds under this chapter until such time as the local educational agency complies with such order. Funds that are withheld under this section shall not be reimbursed for the period during which the local educational agency was in willful noncompliance.

(Pub. L. 89–10, title XIV, §14510, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3906.)

§8901. General prohibitions

(a) Prohibition

None of the funds authorized under this chapter shall be used—

(1) to develop or distribute materials, or operate programs or courses of instruction directed at youth that are designed to promote or encourage, sexual activity, whether homosexual or heterosexual;

(2) to distribute or to aid in the distribution by any organization of legally obscene materials to minors on school grounds;

(3) to provide sex education or HIV prevention education in schools unless such instruction is age appropriate and includes the health benefits of abstinence; or

(4) to operate a program of condom distribution in schools.

(b) Local control

Nothing in this section shall be construed to—

(1) authorize an officer or employee of the Federal Government to mandate, direct, review, or control a State, local educational agency, or schools' instructional content, curriculum, and related activities;

(2) limit the application of the General Education Provisions Act [20 U.S.C. 1221 et seq.];

(3) require the distribution of scientifically or medically false or inaccurate materials or to prohibit the distribution of scientifically or medically true or accurate materials; or

(4) create any legally enforceable right.

(Pub. L. 89–10, title XIV, §14511, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3906.)

References in Text

The General Education Provisions Act, referred to in subsec. (b)(2), is title IV of Pub. L. 90–247, Jan. 2, 1968, 81 Stat. 814, as amended, which is classified generally to chapter 31 (§1221 et seq.) of this title. For complete classification of this Act to the Code, see section 1221 of this title and Tables.

§8902. Prohibition on Federal mandates, direction, and control

Nothing in this chapter shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school's curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this chapter.

(Pub. L. 89–10, title XIV, §14512, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3906.)

§8903. Report

The Secretary shall report to the Congress not later than 180 days after October 20, 1994, regarding how the Secretary shall ensure that audits conducted by Department employees of activities assisted under this chapter comply with changes to this chapter made by the Improving America's Schools Act of 1994, particularly with respect to permitting children with similar educational needs to be served in the same educational settings, where appropriate.

(Pub. L. 89–10, title XIV, §14513, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3906.)

References in Text

The Improving America's Schools Act of 1994, referred to in text, is Pub. L. 103–382, Oct. 20, 1994, 108 Stat. 3518. For complete classification of this Act to the Code, see Short Title of 1994 Amendment note set out under section 6301 of this title and Tables.

§8904. Required participation prohibited

Notwithstanding any other provision of law, no State shall be required to participate in any program under the Goals 2000: Educate America Act [20 U.S.C. 5801 et seq.], or to have content standards or student performance standards approved or certified under such Act, in order to receive assistance under this chapter.

(Pub. L. 89–10, title XIV, §14514, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3907.)

References in Text

The Goals 2000: Educate America Act, referred to in text, is Pub. L. 103–227, Mar. 31, 1994, 108 Stat. 125 (except titles V and IX), as amended, which is classified principally to chapter 68 (§5801 et seq.) of this title (except subchapters V (§5931 et seq.) and IX (§6001 et seq.)). For complete classification of this Act to the Code, see Short Title note set out under section 5801 of this title and Tables.