Act or which serves the area in which a program or project assisted under Title IV of the Act is located.

(b) For the purposes of this subpart, private school children means children who are enrolled in private nonprofit elementary and secondary schools in the school district of a local educational agency to which this subpart applies.

(20 U.S.C. 1806(a))

Comment. Section 406(a) of the Act requires that benefits be provided to private school children by any local educational agency "which is a recipient of funds under" Title IV of the Act "or which serves the area in which a program or project is located." No guidance is provided in the legislation itself or its legislative history as to how a local educational agency which does not receive funds under Title IV is to provide these benefits. Therefore, § 134.89(a) merely repeats the statutory language.

(a) The local educational agency shall provide for the benefit of private school children secular, neutral, and nonideological services, materials, and equipment authorized under Title IV of the Act, including the repair, minor remodeling, or construction of public school facilities as may be necessary for their provision (consistent with §§ 134.98 and 134.99).

(b) If the local educational agency determines that it is not feasible or necessary to locate the services, materials, and equipment referenced in paragraph (a) of this section in one or more private schools, the local educational agency shall provide such other arrangements as will assure equitable participation of private school children in the purposes and benefits of Title IV of the Act.

(20 U.S.C. 1806(a))

§ 134.92 Number of private school children to be served.

The number of private school children to receive benefits under Title IV of the Act shall be determined by the local educational agency on a basis comparable to that used in determining the number of children enrolled in public schools to receive such benefits. (20 U.S.C. 1806(a))

§ 134.93 Expenditures.

Subject to § 134.94, the average expenditure per child for private school children who receive benefits under Title IV of the Act shall be equal to the average expenditure per child for children enrolled in public schools who receive such benefits.

(20 U.S.C. 1806(b))

§ 134.94 Criteria for adjustment of expenditures.

(a) The local educational agency shall adjust its average expenditure per private school child if (1) the needs of private school children with respect to benefits under Title IV of the Act differ from such needs of children enrolled in public schools, and (2) the actual cost per child of such benefits to meet the needs of private school children is lesser or greater than the actual cost per child of such benefits to meet the needs of public school children.

(b) Any such adjustments shall be designed to assure the equitable participation of private school children in the purposes and benefits of Title IV of the Act.

(20 U.S.C. 1806 (a), (b))

§ 134.95 Concentration of programs or projects.

In addition to the requirements set forth in 88 134.94 and 134.93, when funds available to a local educational agency under Title IV of the Act are used to concentrate programs or projects on a particular group, attendance area, or grade or age level, private school children who are included within the group, attendance area, or grade or age level selected for such concentration shall be assured equita

ble participation in the purposes and benefits of such programs or projects. (20 U.S.C. 1806(b))

§ 134.96 Separate compliance for Parts B and C.

(a) Matters relating to assistance under Part C of Title IV of the Act shall have no bearing on a determination of whether a State or local educational agency is in compliance with section 406 of the Act or this subpart with respect to assistance under Part B of Title IV of the Act.

(b) Matters relating to assistance under Part B of Title IV of the Act shall have no bearing on a determination of whether a State or local educational agency is in compliance with section 406 of the Act or this subpart with respect to assistance under Part C of Title IV of the Act.

(20 U.S.C. 1801 (a), (b))

§ 134.97 Information in the project application.

Each application submitted to the State educational agency shall (a) describe how the local educational agency will fulfill the requirements of 88 134.90-134.95 (inclusive) and (b) contain information indicating: (1) the number of private school children in the school district of the local educational agency; (2) the number of private school children to be served by the project and the basis on which such children were selected; (3) the manner in which and the extent to which appropriate private school officials were consulted; (4) the places at which and the times during which private school children will be served; (5) the differences, if any, in the kind and extent of services to be provided public and private school children and the reasons for such differences; and (6) the adjustments (if any) which the local educational agency has made under 88 134.93 and 134.94, and the basis on which such adjustments were made.

(20 U.S.C. 1806(a), (b))

§ 134.98 Control by public agency.

The control of funds provided under Title IV of the Act and title to materi

als, equipment, and property repaired, remodeled, or constructed therewith shall be in a public agency for the uses and purposes provided in Title IV of the Act, and a public agency shall administer such funds and property.

(20 U.S.C. 1806(c)(1))

§ 134.99 Limitations on personnel providing services.

The provision of services pursuant to this subpart shall be provided by employees of a public agency or through contract by such public agency with a person, an association, agency, or corporation who or which in the provision of such services is 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, and the funds provided under Title IV of the Act shall not be commingled with State or local funds. (20 U.S.C. 1806(c)(2))

respect to a program or project under Title IV of the Act being conducted or approved by the State educational agency to be conducted, eligible private school children will not receive benefits on an equitable basis, and (2) the facts on which such allegation is based.

(b) The State educational agency shall, within sixty days from the receipt of the complaint, file a report with the Commissioner, with a copy to the complainant and the affected local educational agency, setting forth the nature of the complaint and the actions taken to resolve the matter.

(c) If after such sixty-day period has elapsed, either the State educational agency, the affected local educational agency, the Commissioner, or the complainant feels that the problem has not been satisfactorily resolved, the Commissioner will review the matter and take appropriate action.

(20 U.S.C. 1806(e))

§ 134.103 Award of subgrants to local educational agencies.

The State educational agency shall not make any subgrant under Part B or Part C of Title IV of the Act which does not meet the requirements of section 406 of the Act and this subpart.

(20 U.S.C. 1806(a), (b))

§ 134.104 Waiver in the case of legal prohibition.

(a) If a State is prohibited by law from providing for the participation in programs of private school children as required under Section 406 of the Act and this subpart, the Commissioner may waive such requirements.

(20 U.S.C. 1806(d))

(b) The State educational agency shall not approve an application subject to paragraph (a) of this section until the Commissioner has waived such requirement.

(20 U.S.C. 1806 (a), (b), (d))

(c) The State educational agency shall promptly notify the Commissioner when approval of any application is being delayed under paragraph (b) of this section, and shall, in addition to the

certification provided under

§ 134.13(a), provide the Commissioner with a written interpretation of the applicable law, prepared by the State attorney general or other appropriate State legal officer.

(20 U.S.C. 1232c(b)(1)(A)(ii)(III); 1806(d))

§ 134.105 Provision of services by the State educational agency.

(a) If at any time after the approval of its application, the local educational agency substantially fails to provide for the participation on an equitable basis of private school children as required by section 406 of the Act and this subpart, the State educational agency may make arrangements either directly or through contract (subject to the provisions in Subpart I of Part 100b of this chapter), for such participation.

(20 U.S.C. 1806(e))

(b) In each such case, the State educational agency shall promptly notify the Commissioner whether it intends to take action under paragraph (a) of this section.

(20 U.S.C. 1806(e))

(c) If a State educational agency does not make satisfactory arrangements under § 134.105(a) within a reasonable period ot time, the Commissioner may waive the requirements for the participation on an equitable basis of children enrolled in private elementary and secondary schools.

(20 U.S.C. 1806(e))

Comment. These two paragraphs provide State educational agencies with an opportunity to remedy substantial failures by local educational agencies to serve private school children. If the State and local educational agency are the same (for example, in an Outlying Area), this section would not apply.

[40 FR 53494, Nov. 18, 1975, as amended at 42 FR 44961, Sept. 7, 1977]

EFFECTIVE DATE NOTE: The provisions of paragraph (c) become effective Oct. 25, 1977.

§ 134.106 Provision of services by the Commissioner.

In the case of a prohibition of law described in § 134.104(a), or if a State educational agency does not make sat

§ 134.107 Cost of services under an arrangement by the State educational agency or the Commissioner.

(a) When the State educational agency makes arrangements for services under § 134.105, it shall, after consultation with the appropriate public and private school officials, pay the cost of such services from the appropriate amount granted to the affected local educational agency.

(b) When the Commissioner makes arrangements for services under § 134.106, he shall, after consultation with the appropriate public and private school officials, pay the cost of such services from the appropriate allotment of the State under Title IV of the Act.

(20 U.S.C. 1806(f))

§ 134.108 Suspension and termination.

(a) Section 434(c) of the General Education Provisions Act (as amended) (1) requires that whenever the Commissioner finds, after reasonable notice and an opportunity for hearing, that there has been a failure by a recipient to comply substantially with the terms of a Federal program for which the Commissioner has administrative responsibility, he shall notify such recipient that payments will not be made to such recipient under that program until there is no longer any such failure to comply, and (2) provides for suspension of payments to the recipient pending such hearing.

(20 U.S.C. 1232(c))

(b) If no waiver is granted under § 134.104 or § 134.105(c) and the State educational agency fails to take action under 134.105(a), section 434(c) of the General Education Provisions Act requires that payments shall be withheld from such State or local educational agency until there is no longer any such failure to comply.

(20 U.S.C. 1232c(c); 1806)

(c) Where the Commissioner proposes to provide services under § 134.106, the notice and opportunity for hearing provided under section 406(g)(1) of the Act shall be combined with the notice and opportunity for hearing provided under section 434(c) of the General Education Provisions Act.

(20 U.S.C. 1232(c); 1806(g)(1))

(d) This section shall not apply where the Commissioner has granted & waiver under § 134.104(a) or § 134.105(c).

(20 U.S.C. 1232c(c); 1806(d), (e))

Comment. Under section 406(d) of the Act, the Commissioner may (but is not required to) waive the requirement of section 406 where a State is prohibited by law from providing for the participation of private school children under Title IV. Section 406(e), which applies to situations where a State or local educational agency has “substantially failed" to provide for such participation, does not authorize the Commissioner to waive the requirement of section 406. Therefore, in those cases in which no waiver is granted and there is substantial failure, the local educational agency would lose its Title IV funds for the affected Part.

This statutory language is in contrast with the provisions applicable to Title I of the Elementary and Secondary Education Act (which were enacted in the same law as Title IV-Pub. L. 93-380). The Title I provisions specifically require the Commissioner to waive the requirement for participation of private school children when he arranges for services to them, both where there is a legal prohibition and where there has been a substantial failure by the local educational agency. (See sections 141A(b)(1) and 141A(b)(2) of Title I, added by section 101(a)(6) of Pub. L. 93-380.)

If the requirement for participation under section 406 is not waived (and in the case of substantial failure, it cannot be waived), a finding of failure to comply with section 406 (for the purposes of section 406(d) and (e)) would also constitute a "failure * ⚫ to comply substantially" with the terms of Title IV under section 434(c) of the General Education Provisions Act (added by Section 511 of Pub. L. 93-380). This section of the regulations combines the necessary proceedings under section 406(g)(1) of Title IV and section 434(c) of the General Education Provisions Act.

[40 FR 53494, Nov. 18, 1975, as amended at 42 FR 44961, Sept. 14, 1977]

EFFECTIVE DATE NOTE: The provisions of paragraph (b) were revised, the phrase read

Subpart A-General

§ 134a.1 Scope.

(a) This part applies to Federal financial assistance under Part B of Title IV of the Act (as defined in § 134.2 of this chapter).

(b) Regulations applicable to both Part B and Part C of the Act are set forth in Part 134 of this chapter.

(20 U.S.C. 1801, 1821)

§ 134a.2 Authorized activities.

Each State may receive a grant under this part (pursuant to the annual program plan approved under section 403 of the Act):

(a) for the acquisition of school library resources, textbooks, and other printed and published instructional materials for the use of children and teachers in public and private elementary and secondary schools;

(b) for the acquisition of instructional equipment (including laboratory and other special equipment, including audio-visual materials and equipment suitable for use in providing education in academic subjects) for use by children and teachers in elementary and secondary schools, and for minor remodeling of laboratory or other space used by such schools for such equipment; and

(c) for (1) a program of testing students in the elementary and secondary schools,

(2) programs of counseling and guidance services for students at the appropriate levels in elementary and secondary schools designed (i) to advise students of courses of study best suited to their ability, aptitude, and skills, (ii) to advise students with respect to their decisions as to the type of educational program they should pursue, the vocation they should train for and enter, and the job opportunities in the various fields, and (iii) to encourage students to complete their secondary school education, take the necessary courses for admission to postsecondary institutions suitable for their occupational or academic needs, and enter such institutions, and such programs may include short-term sessions for persons engaged in guidance