COVID-19 Legal FAQ Update – CARES Act Monies and DACA (Higher Education & Elementary/Secondary)

Memorandum

From:  CEA Legal

Date: June 24, 2020

Re: COVID-19 Legal FAQ Update – CARES Act Monies and DACA (Higher Education & Elementary/Secondary)


This memorandum serves as a guidance to frequently asked questions presented to the CEA Legal team regarding how to respond to the unprecedented epidemic sweeping our nation. The FAQ’s will be updated as we address questions from the field. Please be patient and understand that these circumstances present new and uncharted areas of law . CEA Legal will provide the best advice it can based on its understanding of current law however, the law is unclear in many areas.

QUESTION: Can DACA recipients receive CARES Act monies through the Higher Education Emergency Relief Fund?

ANSWER: Section 18004 of the CARES Act establishes the Higher Education Emergency Relief Fund (HEERF) and instructs the Secretary to allocate funding to eligible institutions of higher education in connection with the COVID-19 outbreak. Section 18004(c) specifically allows institutions to use their HEERF allocation under § 18004(a)(1) for “any costs associated with significant changes to the delivery of instruction due to the coronavirus,” while adding the restriction that funds cannot be used for “payment to contractors for the provision of preenrollment recruitment
activities; endowments; or capital outlays associated with facilities related to athletics, sectarian instruction, or religious worship.” Higher institutions are encouraged to award 50% of their funds as emergency financial aid to students.

After Congress acted, the Department of Education (DOE) issued initial guidance on April 21, 2020 that: “Only students who are or could be eligible to participate in programs under Section 484 in Title IV of the Higher Education Act of 1965, as amended (HEA), may receive emergency financial aid grants.” This has the effect of limiting recipients to “US citizens, national or eligible noncitizens” and those with “a valid social security number,” among other requirements. This means that undocumented immigrants participating in the Deferred Action for Childhood Arrivals (DACA) would not be eligible for emergency funds.

On June 16, 2020, the DOE published its Interim Final Rule (IRF) reiterating the previous guidance, excluding DACA recipients from benefiting from the HEERF relief in the CARES Act.

In both Washington and California, federal courts have already ordered the DOE to stop enforcing any eligibility requirement for students to receive HEERF assistance, as asserted in the April 21 guidance and IRF. The DOE has indicated it will comply with these Court Orders where they apply, but will enforce the IFR and other laws to the extent they are not prevented. This means that in 48 states, including Colorado, DACA recipients are presently unable to receive HEERF relief. This legal fight has likely just begun!

QUESTION: Does this effect elementary and secondary schools receiving funds under the CARES Act?

ANSWER: By contrast, money allocated through the CARES Act Elementary and Secondary School Emergency Relief Fund (ESSERF), Section 18003, funnels through the state to local education agencies for approved uses rather directly to students. The allocation of ESSERF monies by the Colorado Department of Education (CDE) to local education agencies will not change because of an undocumented student population in a particular District because undocumented children and young adults have the same right to attend public elementary and secondary schools as US citizens. The DOE Rule regarding HEERF does not impact elementary and secondary CARES Act allocations. For further guidance on how the CDE is allocating funds across Colorado school districts, visit: https://www.cde.state.co.us/caresact/relieffund.