Policy Guidance for Title I, Part A: Improving Basic Programs Operated by Local Educational Agencies - April 1996

A r c h i v e d  I n f o r m a t i o n

Equitable Participation

To the extent consistent with the number of eligible children identified in an LEA who are enrolled in private elementary or secondary schools, an LEA shall, after timely and meaningful consultation with appropriate private school officials, provide eligible private school children with Title I services. These services must be equitable in comparison to services and other benefits provided public school participants. The delivery options selected must be in compliance with Aguilar v. Felton, 473 U.S. 402 (1985).

Eligible Children

To be eligible to receive Title I services, a private school child must reside in a participating public school attendance area and must meet the criteria in section 1115(b) of Title I. Under that section, certain children would be eligible by virtue of their status: for example, homeless children and children who in the preceding two years participated in Head Start or Even Start. However, the criterion that a student is failing, or most at risk of failing, to meet the State's challenging student content and performance standards is, for the majority of private school children, likely to be the criterion against which eligibility for Title I services will be determined.

In consultation with private school officials, an LEA must establish criteria to determine which private school children are eligible and, within the eligible group, which children will be served. To the extent appropriate, the LEA must select private school children who are failing, or most at risk of failing, to meet the State's student content and performance standards. If the LEA, in consultation with private school officials, determines that it is inappropriate to select private school children on the basis of the State's content and student performance standards, the LEA must select private school children who are failing, or most at risk of failing, to meet high levels of achievement comparable to those required by the State's content and performance standards.

As with children attending public schools, Title I funds may not be used to identify those private school children who would be eligible to participate. Title I funds, however, may be used to select participants from those who are eligible and to determine the specific educational needs of participating children.

Once students are selected, the LEA, in consultation with private school officials, determines what Title I services are to be provided. The private school students' needs will determine what Title I services are appropriate and services may be provided in subject areas or grade levels that are different from those provided to public school students. The type of services provided must give reasonable promise that the children will make adequate progress toward achieving the State's challenging student performance standards.

Because eligibility for services is determined by residence in a participating public school attendance area, private school students being served need to reside in an eligible participating public school attendance area. Therefore, if a public middle school attendance area is not participating in Title I, Title I services may not be provided to private school students in middle school grades who reside in that area.

Delivery of Services

In the case of children attending religiously affiliated private schools, several court cases, most notably Aguilar v. Felton, have dealt with the manner in which these children may be served in light of constitutional requirements contained in the First Amendment. Most significant is the prohibition in Aguilar v. Felton against Title I personnel providing instructional services in religiously affiliated schools. Because of this prohibition, an LEA must provide equitable services through alternative delivery methods.

Some of the questions that should be considered when determining what delivery system to use in ensuring the equitable participation of private school children include: Does the system provide an opportunity for private school children to participate in Title I services that is equitable to the opportunity provided to public school children? How much instructional time is lost going to and from the instructional services? What are the safety factors involved in children going to and from the Title I class?

Delivery options in providing services to participating private school children include, but are not limited to, the following:

An LEA may provide Title I services directly or through contracts with public and private agencies, organizations, and institutions, as long as those entities are independent of the private school and of any religious organization in the provision of those services.


In Arizona, Navajo private school students receive Title I instruction via distance learning technology--a two-way interactive television, voice and data network. Instruction is provided through an add-on (after school) or limited pull-out model. All instruction is fully interactive, with students and teachers in direct visual and audio contact. The classroom equipment consists of one camera providing the off-site teacher with a view of the entire classroom , a document camera that allows to teacher to review students work, two television monitors so students can clearly see the off-site teacher, several audio microphones for high quality voice transmission, a fax machine to allow immediate transmission of homework, and a computer modem for other data transmission. Instruction originates from the University of Northern Arizona and is delivered by certified teachers or teachers under the direct supervision of certified delivered by certified teachers or teachers under the direct supervision of a certified teacher.

Q5. If a school in the attendance area in which eligible private school students reside is operating a schoolwide program, are private school students to be offered a schoolwide program?

A. No. Because private schools are not eligible for Title I services, schoolwide programs may not be operated in private schools. However, eligible private school children residing in an area served by a schoolwide program school must be offered equitable services.

Q6. May an LEA provide services to private school children that are not equitable to those provided to public school children, if, after receiving an offer of equitable services, the private school officials or parents choose to have the children participate in only some of the services?

A. The statute requires that an LEA offer equitable services to private school children; it does not require that private school children accept or participate in all those services. If private school officials or parents choose to have their children participate in only some of those services, and decline participation in others, the LEA will have met its responsibility by providing those services in which private school children wish to participate. LEAs should continue to offer equitable services in future years, however, rather than offering only those services in which children participated in the past.

Q7. When a child residing in a Title I attendance area in one LEA attends a private school in another LEA, which LEA, if any, is responsible for serving the child?

A. The LEA in which the child resides is responsible to provide services for the child. The LEA may, however, arrange to have services provided by another LEA, reimbursing that LEA for costs.

Q8. May an LEA establish a minimum number of private school children selected for the program in order to establish a Title I program near the private school? If so, what is the LEA's responsibility to serve children attending private schools with fewer than that minimum number?

A. Section 1120(a) of Title I requires that LEAs provide for the participation, on an equitable basis, of eligible children enrolled in private schools. The requirement applies regardless of the number of children attending a private school. However, when the number of eligible children at one location is very small, the cost of establishing certain types of programs to serve them may be prohibitive, especially when these children may be from several grades or have different educational needs. In this case, other options should be considered. For instance, if it is feasible and equitable, LEAs may adopt methods, such as take-home computer programs, individual tutoring programs, or professional development activities with the classroom teachers of Title I participants that are cost effective to serve small numbers.

Q9. If the funds generated by low-income private school children are not sufficient to provide instructional services, may the funds be used to provide other services, such as professional development or counseling?

A. When, in consultation, all involved in the design of the Title I program (public and private school officials and parents) agree that the provision of such services as counseling, staff development, parental involvement or other social services are appropriate to assist those children identified as failing or most at risk of failing to meet the State's content and performance standards, the LEA may provide services other than direct instruction. However, all applicable requirements still must be met, including the requirement that the progress of the private school children toward meeting the State's content and performance standards be measured.


Once consortium serving a large rural area, where there are ten small private schools with three to seven Title I children in each school, has developed a program of instruction which incorporates the parents as teachers. The traveling Title I teacher meets with the children once a week for one class period. The parents of the children must commit to meeting with the teacher and participating in staff development/parent involvement seminars as scheduled. Each week the teacher provides the books and materials the parents are to use for the home assignments. For example, "The Baggy Books" (instructional materials for 5 lessons in a bag) is equipped with appropriate instructions for the parent to follow, including questions the parent to follow, including questions the parent asks the child about each section of the lesson. There are also suggested activities the parents can do with the child to reinforce math or reading concepts using home situations familiar to the child. Parental assistance is available by contacting the teacher through a "1-800 help line."

Special Considerations Following Aguilar v. Felton

Q10. May Title I personnel go on the premises of religiously affiliated private schools to provide instructional services?

A. No. In Aguilar v. Felton, the Supreme Court held that Title I personnel may not provide instructional services on the premises of religiously affiliated private schools. Instructional services for those children must be provided at sites that are neither "physically nor educationally identified with the functions of the private school." See Wolman v. Walter, 433 U.S. 229, 246-47 (1977).

Q11. May Title I personnel enter a religiously affiliated private school in order to escort private school children from their rooms to services held outside the private school and to return them to their rooms?

A. Yes. The provision of escort services where needed is permissible as long as no instruction is occurring as the children are being escorted. Under these circumstances, the duties are noninstructional and are designed merely to protect the health and safety of the children. As noted above, the Supreme Court in Felton only prohibited Title I instructional services on the premises of religiously affiliated private schools. The Court in Wolman and previously in Everson v. Board of Education, 330 U.S. 1, 17-18 (1947), recognized that services related to the health and safety of children are permissible even if provided at religiously affiliated private schools. Therefore, the use of escorts does not raise the entanglement problems at issue in the Felton case.

Q12. Are Title I programs on nonreligious private school premises affected by the Aguilar v. Felton decision?

A. No.

Q13. Does the term "teacher" as used in Aguilar v. Felton include other public school personnel?

A. The Second Circuit opinion affirmed by the Supreme Court in Aguilar v. Felton forbade "the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services." However, the Supreme Court in an earlier case, Wolman v. Walter, distinguished the role of the diagnostician from that of the teacher or counselor with regard to services in the private school. We view testing to select children as part of diagnosis; hence, on-premises testing for student selection is not prohibited under Felton.

Q14. May private school students be provided services in public schools or at neutral sites during regular school hours, before or after school, or on weekends?

A. Yes. These options are all available, but the services must be equitable to services provided public school children.

Q15. May private school children receive Title I services in the religiously affiliated private school before or after regular school hours or on weekends?

A. No.

Q16. May private school children receive services with public school children in a summer school program?

A. Yes, but services must be equitable to those provided public school children. To provide only summer activity for private school children, while serving public school children during both the regular term and summer, generally would not be equitable.

Q17. Where may summer school services be provided?

A. At any site allowable during the regular school year.

Q18. If an LEA provides Title I services to private school children in the public schools, may the LEA charge Title I a reasonable amount for the space used? How are such costs allocated?

A. Yes. Reasonable and necessary costs for public school space used for the instruction of private school students are allowable. Reasonable and necessary costs are those in excess of what the LEA would incur in the absence of Title I. For example, the cost of a classroom in a building already in use would not be an excess cost. Special costs incurred in preparing and maintaining it for occupancy by Title I would be allowable. Any such costs would be considered administrative and would come from the LEA's whole Title I allocation or from capital expense funds--not from funds used to provide instructional services to private school children.

Q19. May a private school child take onto private school premises Title I instructional materials for his or her use as part of the child's Title I program?

A. Yes.

Q20. May a neutral, third-party contractor provide Title I instructional services on the premises of a religiously affiliated private school?

A. No.

Q21. May LEAs use mobile vans or other portable units to provide Title I services to children enrolled in religiously affiliated private schools? If yes, where may an LEA place a mobile or portable unit?

A. Yes. The use of mobile or portable units for the provision of Title I services to private school children is allowable. In deciding where to place a unit, LEAs should be aware that the Supreme Court has previously held that the Establishment Clause of the First Amendment is not violated when units are located on public property near the private school. See Wolman v. Walter, 433 U.S. 229, 246-47 (1977). Such locations, as well as other locations not owned by the private school or a religious organization, are plainly acceptable sites for mobile or portable units.

The Supreme Court has not ruled on the constitutionality of placing a mobile or portable unit on property belonging to a religiously affiliated private school, and there may be differing views on this subject. It is the view of the Department that, under certain circumstances, mobile or portable units may constitutionally be placed on such private school property. See, e.g., Pulido v. Cavazos, 934 F.2d 912, 922-24 (8th Cir. 1991). The Department believes that the courts would approve delivery of services in locations on private school property that fit the Supreme Court's characterization of the site that it found acceptable in Wolman v. Walter, i.e., a site "neither physically nor educationally identified with the functions of the nonpublic school." While the Court has not held that other locations are constitutionally impermissible, we believe that services at locations fitting this characterization are most likely to withstand judicial scrutiny. The Department believes that one way in which the use of a mobile or portable unit at a given location on the property of a religiously affiliated private school will comport with this standard is if the following conditions are met:

  1. The property is at a sufficient distance from the private school building(s) so that the mobile or portable unit is clearly distinguishable from the private school facilities used for regular (non-Title I) instruction.

  2. The mobile or portable unit is clearly and separately identified as property of the LEA and is free of religious symbols.

  3. The unit and the property upon which it is located are not used for religious purposes or for the private school's educational program.

  4. The unit is not used by private school personnel.
In addition to the conditions stated above, an LEA may find that the following two further guidelines may bolster its decision to locate units on the property of a religiously affiliated private school:

  1. Before placing a unit on private school property, the LEA can determine that other locations for the services are unsafe, impracticable, or substantially less convenient for the children to be served.

  2. The public school district could enter into a lease arrangement with the private school for the use of the land owned by the private school upon which the unit is to be sited.

Q22. What are some examples of property owned by a religiously affiliated private school that would meet the above criteria?

A. Such property might include:

  1. Land near the school that is separated from the school by an undeveloped plot of land or other terrain features and that is used neither for religious purposes nor the school's educational program.

  2. A portion of a private school playground that is fenced in and has direct access to a public street.

  3. Those portions of a parking lot that are not immediately adjacent to the private school.

Q23. May a religiously affiliated private school building be used as a power source for a unit?

A. Yes. There is nothing to prohibit public schools from arranging for power from any source. However, care must be exercised in the placement of the unit to make certain that the unit is separate from the private school building. If the use of the power source results in the need for repair, remodeling, or construction of private school facilities, Title I funds may not be used for such repair, remodeling, or construction. (See 200.13(e) of the Title I regulations.)

Q24. May the LEA pay the private school with Title I funds for the power or for leasing property?

A. Yes. The private school, however, may not charge more than a reasonable amount as determined under local conditions.

Q25. Who is responsible and liable for the safety of private school children during the time they walk or ride to a neutral site to be served by the Title I program?

A. Generally, the LEA is responsible for providing for the transporting of these children to a neutral site. The question of liability, however, would be determined in accordance with State and local laws and would depend on the specific facts of the situation. Any increased cost to the LEA for having liability insurance coverage may be charged as an administrative cost to the Title I program, or to the capital expense grant.

Q26. What can a small rural LEA with a small Title I allocation do to provide equitable services consistent with the Felton decision?

A. Rural LEAs may have special problems because of small allocations and large distances between the private schools and available locations for providing Title I services. The LEAs may wish to consider leasing rather than purchasing equipment, renting a neutral site, or using home-tutoring components to provide equitable services. They may also wish to set up a joint project with neighboring LEAs, and submit a combined application.

Q27. Did Aguilar v. Felton specifically forbid that instructional services be provided to children in institutions for children adjudicated as neglected or delinquent (N or D) operated by religious groups?

A. No. The Court did not address the unique circumstances involved in serving children in N or D institutions.

Capital Expenses

Section 1120(e)(2) provides that an LEA may apply to an SEA for payments for capital expenses incurred to provide equitable services for private school children. For this purpose, "capital expenses" means expenditures for noninstructional goods and services that are incurred as a result of implementing alternative delivery systems to comply with Aguilar v. Felton, including:

Costs of computer equipment are instructional. These costs may not be paid with capital expense funds.

Q28. How may an LEA use capital expense funds?

A. Funds may be used for the following purposes:

  1. To pay current capital expense costs, such as transportation or lease costs, to serve private school children.

  2. To pay capital expense costs the LEA will incur to increase the numbers of private school children it will serve. For instance, an LEA has been serving private school children at a nearby public school. However, valuable instructional time is lost in transporting the children by bus and, as a result, many eligible children do not participate. The LEA applies for capital expense funds to lease a portable building to place on vacant land next to the private school in order to increase the number of children who will participate in the program.

  3. To reimburse the LEA for capital expense costs incurred in prior years for which it has not been reimbursed, if the LEA demonstrates that its current needs for capital expenses have been met. Assuming the LEA originally paid for these costs "off the top" of its Title I allocation, such a reimbursement of capital expense funds must be used to provide Title I services to both public and private school children.

The State allocates the capital expense funds to LEAs based on the degree of need expressed in the application.

Q29. How must LEAs account for capital expense funds?

A. Since capital expense funds are appropriated and awarded separately from basic grant funds, they must be accounted for separately. LEAs should treat capital expense funds as a separate program, and account for them in the same manner they account for any other Federal grant funds. The LEA may not take into account capital expense funds in determining the amount of Title I funds reserved for educational services for private school children based on the poverty count of private school children in participating school attendance areas.

LEA Part A Allocation $1,000,000
(Subtract "Off-the-Top" Costs)
      Capital Expense (CE) Costs
      (not covered by CE grant)
-$ 25,000*
      Administrative Costs
-$ 125,000
      Reserves/Set-Asides -$ 50,000

Total for educational services
(for public and private school children)
$ 800,000
In addition to capital expenses not covered by a CE grant ($25,000), the LEA is receiving a CE grant of $50,000 for current capital expenses. Therefore, the total capital expenses for implementing the requirements of Felton are $75,000. The $25,000 over and above the CE grant must be taken off the top of the allocation.
*CE calculations
Total CE           $75,000
Less CE Grant  -50,000

CE Costs taken
"off the top"

Q30. How does an LEA apply for capital expense funds?

A. Using an application designed by the SEA, LEAs request funds based on the criteria established by the SEA.

Q31. May capital expense funds be used to reimburse an LEA for local or State-funded capital expenses?

A. Capital expense funds may not be used to reimburse expenditures made from State and local funds.

Q32. If an LEA does not receive a capital expense grant or if a third-party contractor is used, must an LEA still take capital expenses off the LEA's whole Title I allocation?

A. Yes.

Q33. When property that was purchased or reimbursed with capital expense funds is sold at market value, must the payment for the property be deposited in the capital expense fund?

A. Yes.

Computer-Assisted Instruction (CAI)

Q34. May Title I funds be used to install necessary electrical wiring in order to operate Title I CAI programs at a private school?

A. Yes. Reasonable installation costs are allowable under certain circumstances. In approving such costs, SEAs must be aware that no Part A funds may be used for repairs, minor remodeling, or construction of private school facilities. Nevertheless, one way in which the installation would be permissible is if:

Q35. May Title I funds be used to provide a technician in a religiously affiliated private school to operate and maintain CAI equipment and keep order as needed in the CAI Title I classroom?

A. Yes. A technician may be paid from Title I funds to operate and maintain the CAI equipment and keep order, but cannot provide instructional services in the religiously affiliated private school. The Supreme Court in the Felton case prohibited the provision of Title I instructional services in religiously affiliated private schools, but did not rule on the provision of technical, noninstructional services in those schools.

In Wolman v. Walter, the Supreme Court upheld the provision of technical services, such as those of a diagnostician, on the premises of a religiously affiliated private school. The Court found that the nature of that relationship "does not provide the same opportunity for the transmission of sectarian views as attends the relationship between teacher and student or that between counselor and student." 433 U.S. 229, 244 (1977). Thus, the placement of a technician in a CAI Title I classroom does not raise the entanglement problems at issue in the Felton case.

Q36. May equipment be placed on the premises of a religiously affiliated private school to provide CAI under Title I to eligible children enrolled in the school?

A. Yes. CAI equipment may be placed on the premises of a religiously affiliated private school under certain circumstances. We believe that such a placement will withstand judicial scrutiny if the following criteria are met:

  1. As with all Title I programs serving private school children, the CAI program must be under the LEA's direction and control. On-site review by public school officials must be limited, however, to such things as the installation, repair, inventory, and maintenance of the equipment.

  2. Private school personnel may be present in CAI rooms to perform limited noninstructional functions such as maintaining order, assisting children with equipment operations (such as turning the equipment on and off, demonstrating the use of the computers, and accessing Title I programs), and assisting with the installation, repair, inventory, and maintenance of the equipment.

  3. Neither public nor private school personnel may assist the students with instruction in the CAI room. Public school personnel may, however, assist by providing instruction through computer messages, by telephone, or by television.

  4. Access to the computer equipment and the rest of the program must be limited to participating Title I children.

  5. Equipment purchased with Title I funds may not be used for other than Title I purposes. Only software directly related to the Title I program may be used with CAI.

Q37. Does CAI by itself meet the equitability requirements of Title I?

A. Eligible private school children must receive services that are equitable in comparison to the Title I services provided to public school children in terms of both the quality and the costs of the services. When both public and private school children are receiving the same CAI service, the equitable services requirement of Title I is met. When CAI is being provided to private school children while public school children are receiving direct instruction from a teacher, the question of equitability is more difficult. This may be especially true in years after the computers were purchased since, after the initial purchase of equipment, CAI normally provides services at a cost less than the typical Title I program. (This problem may not exist, however, if the cost of the equipment is spread out over a number of years. (See the next question.) If CAI alone does not provide services equitable to those being provided public school children, the LEA should offer additional services, such as after-school tutorial sessions or appropriate summer school programs, to make the offer equitable.

Whether the services provided by an LEA to private school students are equitable to those provided to children in public school is measured by factors discussed in 200.11 of the Title I regulations.

Q38. May the cost of purchasing a computer be spread out over a period of years for the purpose of meeting the equitable costs requirement?

A. The cost of a computer may be spread over a period of years by such means as leasing the equipment, arranging for a lease-purchase agreement, or by paying for the equipment in installments. The LEA may also buy the equipment with local funds, and at the time of purchase agree to have the Title I program proportionately reimburse the local funds each year.


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