The Honorable Betsy DeVos
Secretary of Education
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202

Dear Secretary DeVos:

In response to the COVID-19 pandemic, the California Department of Education (CDE) seeks an amendment of the 2016–19 Charter Schools Program (CSP) Grant to award remaining unobligated local assistance dollars to high-quality charter schools that need assistance to comply with COVID-19 protocols and stay at home orders.

This letter is a request for a waiver under the CSP waiver authority in section 5204(e) of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 (ESEA) (20 U.S.C. § 7221c(e)) as U282A160024 was awarded under NCLB and whenever reference the federal definition of a charter school it should be cited as the definition of charter school in in section 5210(1) of the ESEA (20 U.S.C. § 7221i(1)).

Background Information

In 2016, the CDE was awarded a three-year $49,899,243.00 grant award, award number U282A160024, to support the development and expansion of new high-quality charter schools. The CDE has made significant progress toward meeting the overall objectives of the CSP grant in the last four years. To date, CDE has awarded 95 subgrants, and disseminated best practices to charter schools throughout the state.

This waiver request aligns with the purposes of the CSP and generally falls within the scope and objectives of the CDE’s approved application. The waivers would allow California to support the existing high-quality charter schools in the delivery of in-person, distance, and hybrid learning education programs and would especially assist those charter schools serving educationally disadvantaged students (EDS) in response to and during the COVID-19 pandemic. California law states a preference for in-person instruction, consistent with public health guidance, but also recognizes that there is a need for distance learning given the Governor’s order. California anticipates that there will be a mix of in-person and distance learning in the fall depending on the situation in each community.

Additionally, California understands the need to offer classroom based instruction whenever possible, particularly for students who have experienced significant learning loss due to school closures in the 2019–20 school year. California’s unique Learning Continuity and Attendance Plan is key in providing information at the local educational agency (LEA) level for how student learning continuity will be addressed during the COVID-19 crisis in the 2020–21 school year, including plans on how the LEA will transition to full day classroom instruction. The provisions for the plan were approved by the Governor and Legislature in June 2020.

California has adopted a color coded tiered monitoring system, which determines when schools can open for in person instruction. The four-tiered system ranks the severity of the pandemic in each of California’s 58 counties. Currently, 87 percent of California students are in districts that must offer instruction through some form of distance learning.

This waiver request would provide the CDE with an opportunity to obligate remaining local assistance funds during its current no-cost extension (NCE).

Waiver Request Requirements

1. Identify the federal programs affected by this waiver request.

   CDE seeks this wavier to assist existing classroom and non-classroom based charter schools to implement in person, distance or hybrid learning education programs and enable continued education of students during the COVID-19 pandemic. Flexibility under this wavier will allow California charter schools better to serve students by closing the digital divide, which predominantly affects EDS students.

2. Describe which federal statutory or regulatory requirements are to be waived.

   CDE seeks to expand applicant eligibility, modify the application and application scoring process, and allow existing charter schools that have not received CSP grant funding in the last 24 months to receive funds to support responses to the COVID-19 pandemic. CDE also seeks to allow subgrants to begin more than 90 days before the date of the subgrant award.

   The CDE requests a waiver of §5202(c)(2)(B) of ESEA (20 U.S.C §7221a(c)(2)(B)) to allow an established charter school that received a three-year CSP startup subgrant previously and used up to two years of the subgrant for “initial implementation of a charter school” to be eligible for funds since it would be establishing or expanding an education model focused on distance learning.

   California classroom-based charter schools awarded CSP implementation subgrants under previous State Entity grants need additional startup funds as they establish or expand distance learning programs. Distance learning is typically only utilized by non-classroom-based charter schools in California. However, non-classroom-based schools were not prepared in many cases to meet the increased demand for distance learning and need additional resources to expand their programs. The infusion of new CSP subgrant funds will support unexpected startup and expansion activities not covered or foreseen with previous CSP funding subgrant awards.

   The CDE requests a waiver of §5202(d)(1) of the ESEA (20 U.S.C §7221a(d)(1)) to allow an established charter school that has received a CSP startup subgrant previously and that is past the “initial implementation” phase to receive a second subgrant award to set up or expand a distance learning education program.

   CDE seeks a waiver to award a second subgrant to any eligible charter school including previous CSP subgrantees. Eligible applicants would only include those who have not received a CSP subgrant in the 24 months prior to a new COVID response subgrant award date.

   The CDE requests a waiver of §5204(f)(3)(B) of the ESEA (20 U.S.C. §7221c(f)(3)(B)) to allow an established charter school that is past the implementation phase of the charter school to be eligible for funds since it will be offering or expanding distance learning as part of its educational program, and, therefore, would be implementing a new or expanded program at the charter school for the first time.

   Under the ESSA flexibility criteria, the CDE requests a waiver of §4303(b)(1)(C) so that eligible applicants may also include existing charter schools in need of funding for distance learning programs as a result of the COVID-19 pandemic.

   This waiver would allow all eligible charter schools to apply for additional financial support to provide resources and technology to students and to help charter schools prepare for distance learning as may be indicated by local health situations.

   Allowable subgrant activities awarded under this waiver would only be those activities allowed in §4303(h) of ESEA related to one-time startup costs associated with the implementation of a school’s new or expanded instructional program. Activities may include the following:

   • Purchasing technology hardware and software for teachers and students, particularly EDS who do not have access to these technologies at home;

   • Providing students with internet access necessary to access educational programs at home;

   • Providing teachers and staff with professional development and planning costs associated with implementing and overseeing distance learning; and

   • Supporting other one-time costs related to implementing changes in instructional practices and to maintain the health and safety of students and staff during the COVID-19 pandemic.

   California’s existing charter schools have had substantial costs associated with implementing and expanding distance learning, teacher professional development technology and internet access for students and staff.

   Preference points would also be awarded in the application scoring process for the following:

   • Any charter school serving a student population of more than 85% EDS

   • Any single charter school not part of a multiple charter school governance organization or Charter Management Organization.

   To assist those charter schools most in need, any charter school whose non-profit organization has received a federal Paycheck Protection Program loan, will not be eligible for CSP funds under this waiver.

   CDE requests a waiver of §5204(c) of ESEA (20 U.S.C. §7221c(c)) allowing CDE to award subgrants in an expedited fashion, without a peer review process.

   To expedite the award of these specialized subgrant awards, the CDE requests permission to utilize CDE staff and a panel of appointed peer reviewers to evaluate and process application requests under this waiver through a Request for Application (RFA) competitive process. CDE staff possess the skills and expertise needed to evaluate subgrant applications efficiently. Based on previous subgrant competitions, soliciting and training peer reviewers, scheduling and facilitating peer review discussions, and gathering peer review feedback is a process that can take months. Given the urgency of the situation, the CDE would like to use the most efficient process possible.

   The CDE will award subgrants based on the following:

   • 2019-20 enrollment data including percent of EDS

   • Detailed budget narrative describing purchases that will be made with the subgrant funds.

   The CDE request a waiver of Code of Federal Regulations (CFR) §200.308(d)(1) to allow subgrants to begin more than 90 days before the date of the subgrant award due to the State of California stay at home order issued state-wide on March 19, 2020.

   The subgrant period for subgrants awarded under this waiver would run from March 19, 2020, when the initial stay at home order was declared in response to the COVID-19 threat, to March 19, 2021. The stay at home order established an immediate requirement for all schools in California to shift to distance learning with limited time for planning. As schools plan for the 2020–21 school year in response to public health orders, many will continue to offer distance learning or some form of a combined hybrid educational model that allows students and staff the space required to meet current social distancing protocols.

   The CDE requests a waiver of §5203(b)(3) of ESEA (20 U.S.C.§7221b(b)(3)) so that charter schools can submit a subgrant application without the burden of supplying information that is already part of the school’s charter petition.

   The CDE requests to waive the following application requirements set forth in §5203(b)(3):

   • (B) A description of how the charter school will be managed;

   • (C) A description of –

     • i. The objectives of the charter school; and

     • ii. The methods by which the charter school will determine its progress toward achieving these objectives

   • (D) A description of the administrative relationship between the charter school and the authorized public chartering agency;

   • (F) A description of how the authorized public chartering agency will provide for continued operation of the school once the Federal grant has expired.

   • (I) A description of how students in the community will be –

     • i. Informed about the charter school; and

     • ii.Given equal opportunity to attend the charter school.

   These items must already be identified in the school’s charter petition and requiring them as part of the application process would be burdensome and unnecessary.

   A description of how the autonomy and flexibility granted to the charter school is consistent with the federal definition of a charter school will still be required as part of the application. A response to parent and community involvement and compliance with Individuals with Disabilities Act (IDEA) will also be required in the application narrative.

   And lastly,

   The CDE requests a waiver of 34 CFR §75.261(c)(3) to allow these waiver requests to be implemented under an NCE with an end date of September 30, 2021.

   The CDE has been granted a provisional NCE to continue supporting the current subgrantees. With the approval of the above waivers, the CDE will be able spend down remaining grant funds and provide vital financial support to charter schools serving EDS.

3. Describe how the waiving of the requirements indicated above will advance student academic achievement and align with the objectives of the state’s CSP grant.

   On April 20, 2020 the State Superintendent of Public Instruction convened the first meeting of the Digital Divide Task Force (https://www.cde.ca.gov/nr/ne/yr20/yr20rel22.asp) to look at the issues surrounding equal access to internet services and computing devices. During the discussion, one member shared that one in eight students do not have access to the internet and for students of color, the numbers are even greater. The digital divide in California exists in both rural and urban communities. Adding to this problem, difficult economic circumstances caused by COVID-19 make it harder for impacted families to pay for or maintain high-speed internet service. With the benefit of the flexibility afforded to the CDE by the Secretary under a granted waiver, California can accomplish the following:

   • 1) Make additional financial resources available to charter schools in the state to implement effective distance-learning and instruction;

   • 2) Allow charter schools to purchase computers or smart tablets, computer programs, internet access, and other learning materials and services for their teachers and students, particularly those who do not have access to these materials at home;

   • 3) Expedite the subgrant award process, allowing the state to make subgrant funds more immediately available to eligible charter schools as they combat the effects of the pandemic on education delivery and outcomes;

   • 5) Support professional development and planning costs associated with implementing and overseeing distance learning; and

   Providing immediate additional support to charter schools will ensure continuity of instruction. Without the Secretary granting the requested waivers, the CDE’s ability to support charter schools will be affected by time constraints and restrictive eligibility requirements. Granting this waiver will assist the CDE to meet the needs of charter schools to support student achievement, especially the achievement of EDS, and also continue the CDE’s work toward its grant objectives.

4. Describe the methods that will be used to monitor and regularly evaluate the effectiveness of the implementation plan of this waiver request.

   As noted in CDE’s recent Annual Performance Report (APR) submitted in April 2020, the state has $5,484,496.85 in unobligated local assistance funds. If CDE receives approval of this waiver request, there will be ample funding available for CDE to run one additional subgrant competition targeting the above-mentioned charter schools. Because these funds will still be utilized for subgrants as initially proposed, no changes to California’s approved budget are required.

   Under this waiver, the CDE anticipates awarding up to 100 additional subgrant awards over a 12-month time period. The amount awarded will be based on the size of the school. The award will be $250 per student up to 300 students for a maximum award of $75,000. If the funding requests exceed that which is available, eligible applicants will be prioritized by the percentage of EDS enrolled in the school. Subgrants shall be awarded to charter schools that meets the federal definition of a charter school in § 4310(2)(A)-(M) of ESEA.

   Applicants will be required to submit a grant application as described above along with a budget summary and narrative. The budget will be reviewed by CDE staff and peer reviewers to ensure all items are reasonable, necessary, and allowable. Once the grants are awarded, all subgrantees must submit a quarterly expense report (QER) and a detailed general ledger report describing all of the expenses in the claim. This report will be reviewed and approved by the CDE staff. The same procedure used for all current CSP subgrants will be used to process subgrantee payments including verification of the school’s non-profit status with the Secretary of State and the DUNS number registration status in the SAM system.

   Beyond the QERs, the CDE will complete a risk assessment of the waiver subgrants to determine which schools will be subject to site or desk monitoring. The site/desk monitoring procedures will follow the same protocols currently being used to monitor current new charter school subgrantees.

   All COVID waiver subgrantees will also be required to complete the annual progress report describing the impact the funding had on the school during the COVID crisis.

5. Describe how schools will continue to provide assistance to the same populations served by programs for which waivers are requested.

   With the benefit of a waiver, charter schools currently operating in California, not currently receiving a CSP grant, will benefit from additional funding to address the impacts of the COVID-19 pandemic. Given CDE’s available funding cannot meet the needs of all the eligible charter schools, the state will prioritize schools that serve primarily EDS. This priority is aligned with CDE’s grant objectives as currently written and continues the state’s focus on serving at-risk students.

6. If the waiver relates to provisions of subsections (b) or (h) of section 1111 of ESEA, describe how the SEA requesting the waiver will maintain or improve transparency in reporting to parents and the public on student achievement and school performance, including the achievement of the subgroups of students identified in section llll(b)(2)(B)(xi) of ESEA.

   The waiver being requested is related to CSP-specific requirements and is not directly related to the statewide accountability system.

   Thank you in advance for your consideration of the CDE’s requests. If you have any questions or require additional information, please do not hesitate to contact Carrie Lopes, California CSP project director, at clopes@cde.ca.gov or (916) 220-3645.

Sincerely,

Stephanie Farland, Director
Charter Schools Division

SF:lg

cc:

Sent via Email to: Ashley.Gardner@ed.gov

Waiver Request Letter to United States Department of Education,
Secretary of Education, The Honorable Betsy DeVos
oab-csd-sep20item02 revised
Attachment 1

This item attachment is from the SBE Agenda for September 2020