Washington : Government Printing Office
The purpose of this chapter is to provide assistance for the construction of urgently needed minimum school facilities in school districts which have had substantial increases in school membership as a result of new or increased Federal activities. There are authorized to be appropriated for the fiscal year ending June 30, 1959, and each fiscal year thereafter, such sums as the Congress may determine to be necessary for such purpose. Sums so appropriated, other than sums appropriated for administration, shall remain available until expended. (Sept. 23, 1950, ch 995, § 1, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 548.)
For each fiscal year the Commissioner shall determine the portion of the funds appropriated pursuant to section 631 of this title which shall be available for carrying out the provisions of sections 639 and 640 of this title. The remainder of such funds shall be available for paying to local educational agencies the Federal share of the cost of projects for the construction of school facilities for which applications have been approved under section 636 of this title. (Sept. 23, 1950, ch. 995, § 2, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 548.)
The Commissioner shall from time to time set dates by which applications for payments under this chapter with respect to construction projects must be filed, except that the last such date with respect to applications for payments on account of children referred to in paragraphs (2) or (3) of section 635 (a) of this title shall be not later than June 30, 1973. The Commissioner shall by regulation prescribe an order of priority, based on relative urgency of need, to be followed in approving applications in the event the funds appropriated under this chapter and remaining available on any such date for payment to local educational agencies are less than the Federal share of the cost of the projects with respect to which applications have been filed prior to such date (and for which funds under this chapter have not already been obligated). Only applications meeting the conditions for approval under this chapter (other than section 636(b)(2)(C) of this title) shall be considered applications for purposes of the preceding sentence. Such order of priority shall provide that applications for payments based upon increases in the number of children residing on, or residing with a parent employed on, property which is part of a low-rent housing project assisted under the United States Housing Act of 1937 shall not be approved for any fiscal year until all other applications under paragraphs (2) and (3) of subsection (a) of section 635 of this title have been approved for that fiscal year. (Sept. 23, 1950, ch. 995, § 3, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 548, and amended Oct. 3, 1961, Pub. L. 87-344, title I, § 101(a), 75 Stat. 759; Dec. 18, 1963, Pub. L. 88-210, title III, § 301(a), formerly § 31(a), 77 Stat. 419, renumbered Oct. 16, 1968, Pub. L. 90-576, title I, § 101(a)(1), 82 Stat. 1064; Oct. 16, 1964, Pub. L. 88-665, title XI, § 1101(a), 78 Stat. 1109; Nov. 3, 1966, Pub. L. 89-750, title II, § 221, 80 Stat. 1213; Jan. 2, 1968, Pub. L. 90-247, title III, § 301(d), 81 Stat. 813; Apr. 13, 1970, Pub. L. 91-230, title II, §§ 201(a)(1), 203(c)(3), 84 Stat. 154, 156.)
Subject to section 635 of this title (which imposes limitations on the total of the payments which may be made to any local educational agency), the Federal share of the cost of a project under this chapter shall be equal to such cost, but in no case to exceed the cost, in the school district of the applicant, of constructing minimum school facilities, and in no case to exceed the cost in such district of constructing minimum school facilities for the estimated number of children who will be in the membership of the schools of such agency at the close of the second year following the increase period and who will otherwise be without such facilities at such time. For the purposes of the preceding sentence, the number of such children who will otherwise be without such facilities at such time shall be determined by reference to those facilities which (1) are built or under contract as of the date on which the Commissioner set, under section 633 of this title, the earliest date on or before which the application for such project was filed, or (2) as of the date the application for such project is approved, are included in a project the application for which has been approved under this chapter. (Sept. 23, 1950, ch. 995, § 4, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 549, and amended Nov. 3, 1966, Pub. L. 89-750, title II, § 224, 80 Stat. 1214.)
(a) Determination by categories of Federally-connected children.
Subject to the limitations in subsection (c) and (d) of this section, the total of the payments to a local educational agency under this chapter may not exceed the sum of the following:
(1) the estimated increase, since the base year, in the number of children residing on Federal property, (A) who so resided with a parent employed on Federal property (situated in whole or in part in the same State as the school district of such agency or within reasonable commuting distance from such school district), or (B) who had a parent who was on active duty in the uniformed services (as defined in section 102 of the Career Compensation Act of 1949), multiplied by 95 per centum of the average per pupil cost of constructing minimum school facilities in the State in which the school district of such agency is situated; and
(2) the estimated increase, since the base year, in the number of children (A) residing on Federal property, or (B) residing with a parent employed on Federal property (situated in whole or in part in the same State as the school district of such agency or within reasonable commuting distance from such school district), or (C) who had a parent who was on active duty in the uniformed services (as defined in section 102 of the Career Compensation Act of 1949), multiplied by 50 per centum of the average per pupil cost of constructing minimum school facilities in the State in which the school district of such agency is situated; and
(3) the estimated increase, since the base year, in the number of children whose membership results directly from activities of the United States (carried on either directly or through a contractor), multiplied by 45 per centum of the average per pupil cost of constructing minimum school facilities in the State in which the school district of such agency is situated. For purposes of this paragraph, the Commissioner shall not consider as activities of the United States those activities which are carried on in connection with real property excluded from the definition of Federal property by the last sentence of paragraph (1) of section 645 of this title, but shall (if the local educational agency so elects pursuant to sub-section (b) of this section) consider as children whose membership results directly from activities of the United States children residing on Federal property or residing with a parent employed on Federal property; and
(4) for the fiscal year ending June 30, 1967, the estimated number of children, without regard to the limitation in subsection (d) of this section, whose membership in the schools of such local educational agency resulted from a change in residence from land transferred to Mexico as part of a relocation of an international boundary of the United States, multiplied by 50 per centum of the average per pupil cost of constructing minimum school facilities in the State in which the school district of such agency is situated; but if, by reason of any other provision of law, this clause is not considered in computing the maximum payments a local educational agency may receive for the fiscal year ending June 30, 1967, the additional amount such agency would have been entitled to receive shall be added to such agency's entitlement for the first fiscal year for which funds appropriated to carry out this chapter may be used for such purpose.
In computing for any local educational agency the number of children in an increase under paragraph (1), (2), or (3), the estimated number of children described in such paragraph who will be in the membership of the schools of such agency at the close of the increase period shall be compared with the estimated number of such children in the average daily membership of the schools of such agency during the base year.
(b) Election where two or more categories apply.
If two or more of the paragraphs of subsection (a) of this section apply to a child, the local educational agency shall elect which of such paragraphs shall apply to such child, except that, notwithstanding the election of a local educational agency to have paragraph (2) apply to a child instead of paragraph (1), the determination of the maximum amount for such agency under subsection (a) of this section shall be made without regard to such election.
(c) Eligibility conditions for each category.
A local educational agency shall not be eligible to have any amount included in its maximum by reason of paragraph (1), (2), or (3) of subsection (a) of this section unless the increase in children referred to in such paragraph, prior to the application of the limitation in subsection (d) of this section is at least twenty and—
(1) in the case of paragraph (1) or (2 ), is—
(A) equal to at least 6 per centum of the number of all children who were in the average daily membership of the schools of such agency during the base year, or
(B) at least one thousand five hundred, whichever is the lesser; and (2) in the case of paragraph (3), is—
(A) equal to at least 10 per centum of the number of all children who were in the average daily membership of the schools of such agency during the base year, or
(B) at least two thousand five hundred, whichever is the lesser: Provided, That no local educational agency shall be regarded as eligible under this paragraph (2) unless the Commissioner finds that the construction of additional minimum school facilities for the number of children in such increase will impose an undue financial burden on the taxing and borrowing authority of such agency.
In determining the eligibility of a local educational agency under this subsection and in determining the number of federally connected children who are in the average daily membership of the schools of such agency during a base year and in estimating the increase since the base year in the number of such children under subsection (a) of this section, children residing on any housing property (whether or not owned by the United States), which is part of a low-rent housing project assisted under the United States Housing Act of 1937, shall not be considered as having been federally connected during the base year if such housing project was begun after the base year of 1964-1965.
(d) Reduction in number of Federally-connected children to be used in computation, in certain cases.
If (1) the estimated number of nonfederally connected children who will be in the membership of the schools of a local educational agency at the close of the increase period is less than (2) 106 per centum of the number of such children who were in the average daily membership of such agency during the base year, the total number of children
counted for purposes of subsection (a) of this section with respect to such agency shall be reduced by the difference between (1) and (2) hereof, except that the number of children counted for the purposes of paragraph (1) or (2) of subsection (a) of this section shall not be reduced by more than one thousand five hundred and that the number of children counted for the purposes of paragraph (3) of subsection (a) of this section shall not be reduced by more than two thousand five hundred. For purposes of this subsection, all children in the membership of a local educational agency shall be counted as nonfederally connected children except children whose membership in the base year and increase period was compared in computing an increase which meets the requirements of subsection (c) of this section.
(e) Waiver of conditions.
Notwithstanding the provisions of subsections (c), (d), and (f) of this section, whenever and to the extent that, in his judgment, exceptional circumstances exist which make such action necessary to avoid inequity and avoid defeating the purposes of this chapter, the Commissioner may do any one or more of the following: (1) he may waive or reduce the minimum number requirement or any percentage requirement or requirements in subsection (c) of this section; (2) he may waive the requirement contained in the first sentence of subsection (d) of this section or reduce the percentage specified in clause (2) of such sentence; or (3) he may waive or reduce the requirement contained in subsection (f) of this section.
(f) Limitation on numerical count of children.
In determining under this section the total of the payments which may be made to a local educational agency on the basis of any application, the total number of children counted for purposes of paragraph (1), (2), or (3), as the case may be, of subsection (a) of this section may not exceed—
(1) the number of children whose membership at the close of the increase period for the application is compared with membership in the base period for purposes of that paragraph, minus
(2) the number of such children whose membership at the close of the increase period was compared with membership in the base year for purposes of such paragraph under the last previous application, if any, of the agency on the basis of which any payment has been or may be made to that agency.
(Sept. 23, 1950, ch. 995, § 5, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 549, and as amended Nov. 1, 1965, Pub. L. 89-313, § 5, 79 Stat. 1161; Nov. 3, 1966, Pub. L. 89-750, title II, §§ 222(a), (e), 223, 226, 227, 80 Stat. 1213-1215; Jan. 2, 1968, Pub. L. 90-247, title II, §§ 205(b), 207, 81 Stat. 809; Apr. 13, 1970, Pub. L. 91-230, title II, §§ 203(a)(3), 204, 84 Stat. 155, 157; May 21, 1970, Pub. L. 91-260, 84 Stat. 254.)
(a) Submission and filing.
No payment may be made to any local educational agency under this chapter except upon application therefor which is submitted through the appropriate State educational agency and is filed with the Commissioner in accordance with regulations prescribed by him.
(b) Contents; approval conditions.
(1) Each application by a local educational agency shall set forth the project for the construction of school facilities for such agency with respect to which it is filed, and shall contain or be supported by—
(A) a description of the project and the site therefor, preliminary drawings of the school facilities to be constructed thereon, and such other information relating to the project as may reasonably be required by the Commissioner;
(B) assurance that such agency has or will have title to the site, or the right to construct upon such site school facilities as specified in the application and to maintain such school facilities on such site for a period of not less than twenty years after the completion of the construction;
(C) assurance that such agency has legal authority to undertake the construction of the project and to finance any non-Federal share of the cost thereof as proposed, and assurance that adequate funds to defray any such non-Federal share will be available when needed;
(D) assurance that such agency will cause work on the project to be commenced within a reasonable time and prosecuted to completion with reasonable diligence;
(E) Repealed. Pub. L. 91-230, title IV, 401(g)(4 ), Apr. 13, 1970, 84 Stat. 174.
(F) assurance that the school facilities of such agency will be available to the children for whose education contributions are provided in this chapter on the same terms, in accordance with the laws of the State in which the school district of such agency is situated, as they are available to other children in such school district; and
(G) assurance that such agency will from time to time prior to the completion of the project submit such reports relating to the project as the Commissioner may reasonably require.
(2) The Commissioner shall approve any application if he finds (A) that the requirements of paragraph (1) have been met and that approval of the project would not result in payments in excess of those permitted by sections 634 and 635 of this title, (B) after consultation with the State and local educational agencies, that the project is not inconsistent with overall State plans for the construction of school facilities, and (C) that there are sufficient Federal funds available to pay the Federal share of the cost of such project and of all other projects for which Federal funds have not already been obligated and applications for which, under section 633 of this title, have a higher priority: Provided, That the Commissioner may approve any application for payments under this chapter at any time after it is filed and before any priority is established with respect thereto under section 633 of this title if he determines that—
(i) on the basis of information in his possession, it is likely that the urgency of the need of the local educational agency is such that it would have a priority under section 633 of this title which would qualify it for payments under this chapter when such priorities are established, and
(ii) the number of children in the increase under section 635 (a) of this title is in large measure attributable to children who reside or will reside in housing newly constructed on Federal property.
(c) Hearing.
No application under this chapter shall be disapproved in whole or in part until the Commissioner of Education has afforded the local educational agency reasonable notice and opportunity for hearing. (Sept. 23, 1950, ch. 995, § 6, as added
Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 551, and amended Apr. 13, 1970, Pub. L. 91-230, title IV, § 401(g)(4), 84 Stat. 174.)
(a) Upon approving the application of any local educational agency under section 636 of this title, the Commissioner of Education shall pay to such agency an amount equal to 10 per centum of the Federal share of the cost of the project. After final drawings and specifications have been approved by the Commissioner of Education and the construction contract has been entered into, the Commissioner shall, in accordance with regulations prescribed by him and at such times and in such installments as may be reasonable, pay to such agency the remainder of the Federal share of the cost of the project.
(b) Any funds paid to a local educational agency under this chapter and not expended for the purposes for which paid shall be repaid to the Treasury of the United States. (Sept. 23, 1950, ch. 995, § 7, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 552.)
Not to exceed 10 per centum of the sums appropriated pursuant to this chapter for any fiscal year (exclusive of any sums appropriated for administration) may be used by the Commissioner, under regulations prescribed by him, to make grants to local educational agencies where (1) the application of such agencies would be approved under this chapter but for the agencies' inability, unless aided by such grants, to finance the non-Federal share of the cost of the projects set forth in their applications, or (2) although the applications of such agencies have been approved, the projects covered by such applications could not, without such grants, be completed, because of flood, fire, or similar emergency affecting either the work on the projects or the agencies' ability to finance the non-Federal share of the cost of the projects. Such grants shall be in addition to the payments otherwise provided under this chapter, shall be made to those local educational agencies whose need for additional aid is the most urgent and acute, and insofar as practicable shall be made in the same manner and upon the same terms and conditions as such other payments. (Sept. 23, 1950, ch. 995, § 8, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 552.)
Notwithstanding sections 631 to 638 of this title, whenever the Commissioner determines that the membership of some or all of the children, who may be included in computing under section 635 of this title the maximum on the total of the payments for any local educational agency, will be of temporary duration only, such membership shall not be included in computing such maximum. Instead, the Commissioner may make available to such agency such temporary school facilities as may be necessary to take care of such membership; or he may, where the local educational agency gives assurance that at least minimum school facilities will be provided for such children, pay (on such terms and conditions as he deems appropriate to carry out the purposes of this chapter) to such agency for use in constructing school facilities an amount equal to the amount which he estimates would be necessary to make available such temporary facilities. In no case, however, may the amount so paid exceed the cost, in the school district of such agency, of constructing minimum school facilities for such children. The Commissioner may transfer to such agency or its successor all the right, title, and interest of the United States in and to any temporary facilities made available to such agency under this section (or section 309 of this Act as in effect January 1, 1958); any such transfer shall be without charge, but may be made on such other terms and conditions, and at such time as the Commissioner deems appropriate to carry out the purposes of this chapter. (Sept. 23, 1950, ch. 995, § 9, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 553.)
(a) Provision for minimum school facilities.
In the case of children who it is estimated by the Commissioner in any fiscal year will reside on Federal property at the end of the next fiscal year—
(1) if no tax revenues of the State or any political subdivision thereof may be expended for the free public education of such children; or
(2) if it is the judgment of the Commissioner, after he has consulted with the appropriate State educational agency, that no local educational agency is able to provide suitable free public education for such children,
the Commissioner shall make arrangements for constructing or otherwise providing the minimum school facilities necessary for the education of such children. In any case in which the Commissioner makes arrangements under this section for constructing or otherwise providing minimum school facilities situated on Federal property in Puerto Rico, Wake Island, Guam, or the Virgin Islands, he may also include minimum school facilities necessary for the education of children residing with a parent employed by the United States though not residing on Federal property, but only if the Commissioner determines, after consultation with the appropriate State educational agency, (1) that the construction or provision of such facilities is appropriate to carry out the purposes of this chapter, (2) that no local educational agency is able to provide suitable free public education for such children, and (3) that English is not the primary language of instruction in schools in the locality. Such arrangements may also be made to provide, on a temporary basis, minimum school facilities for children of members of the Armed Forces on active duty, if the school in which free public education is usually provided for such children is made unavailable to them as a result of official action by State or local governmental authority and it is the judgment of the Commissioner, after he has consulted with the appropriate State educational agency, that no local educational agency is able to provide suitable free public education for such children. To the maximum extent practicable school facilities provided under this section shall be comparable to minimum school facilities provided for children in comparable communities in the State. This section shall not apply (A) to children who reside on Federal property under the control of the Atomic Energy Commission, and (B) to Indian children attending federally operated Indian schools. Whenever it is necessary for the Commissioner to provide school facilities for children residing on Federal property under this section, the membership of such children may not be included in computing under section 635 of
this title the maximum on the total of the payments for any local educational agency.
(b) Transfer in the Federal interest of title of facilities to local educational agencies.
When the Commissioner determines it is in the interest of the Federal Government to do so, he may transfer to the appropriate local educational agency all the right, title, and interest of the United States in and to any facilities provided under this section (or sections 204 or 310 of this Act as in effect January 1, 1958). Any such transfer shall be without charge, but may be made on such other terms and conditions, and at such time as the Commissioner deems appropriate to carry out the purposes of this chapter.
(c) Children living on Federal property.
If no tax revenues of a State or of any political subdivision of the State may be expended for the free public education of children who reside on any Federal property within the State, or if no tax revenues of a State are allocated for the free public education of such children, then the property on which such children reside shall not be considered Federal property for the purposes of section 635 of this title (Sept. 23, 1950, ch. 995, § 10, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 553, and amended May 6, 1960, Pub. L. 86-449, title V, § 502, 74 Stat. 89; July 21, 1965, Pub. L. 89-77, § 1, 79 Stat. 243; Nov. 3, 1966, Pub. L. 89-750, title II, §§ 228, 229, 80 Stat. 1215.)
(a) Whenever the Commissioner of Education, after reasonable notice and opportunity for hearing to a local educational agency, finds (1) that there is a substantial failure to comply with the drawings and specifications for the project, (2) that any funds paid to a local educational agency under this chapter have been diverted from the purposes for which paid, or (3) that any assurance given in an application is not being or cannot be carried out, the Commissioner may forthwith notify such agency that no further payment will be made under this chapter with respect to such agency until there is no longer any failure to comply or the diversion or default has been corrected or, if compliance or correction is impossible, until such agency repays or arranges for the repayment of Federal moneys which have been diverted or inproperly expended.
(b) The final refusal of the Commission to approve part or all of any application under this chapter, and the Commissioner's final action under subsection (a) of this section, shall be subject to judicial review on the record, in the United States court of appeals for the circuit in which the local educational agency is located, in accordance with the provisions of the Administrative Procedure Act. (Sept. 23, 1950, ch. 995, § 11, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 554. )
(a) Repealed, Pub. L. 91-230, title IV, § 401(f)(3), Apr. 13, 1970, 84 Stat. 173.
(b) The Commissioner of Education shall administer this chapter, and he may make such regulations and perform such other functions as he finds necessary to carry out the provisions of this chapter.
(c) The Commissioner shall include in his annual report to the Congress a full report of the administration of his functions under this chapter, including a detailed statement of receipts and disbursements. (Sept. 23, 1950, ch. 995, § 12, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 554, and amended Apr. 13, 1970, Pub. L. 91-230, title IV, § 401(f)(3), (g)(4), 84 Stat. 173, 174.)
(a) Repealed. Pub. L. 91-230, title IV, § 401(c)(3), Apr. 13, 1970, 84 Stat. 173.
(b) All Federal departments or agencies administering Federal property on which children reside, and all such departments or agencies principally responsible for Federal activities which may give rise to a need for the construction of school facilities, shall to the maximum extent practicable, comply with requests of the Commissioner for information he may require in carrying out the purposes of this chapter.
(c) No appropriation to any department or agency of the United States, other than an appropriation to carry out this chapter, shall be available for the same purpose as this chapter; except that nothing in this subsection shall affect the availability of appropriations authorized, prior to September 23, 1950, for the construction of school facilities to be attended by Indian children or appropriations (1) for the construction of school facilities on Federal property under the control of the Atomic Energy Commission, (2) for the construction of school facilities which are to be federally operated for Indian children, or (3) for the construction of school facilities under the Alaska Public Works Act, approved August 24, 1949. (Sept. 23, 1950, ch. 995, § 13, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 554, and amended Apr. 13, 1970, Pub. L. 91-230, title IV, § 401(c)(3), 84 Stat. 173.)
(a) Eligibility requirements due to impairment in financing abilities created by immunity from taxation of Indian lands.
If the Commissioner determines with respect to any local educational agency that—
(1) such agency is providing or, upon completion of the school facilities for which provision is made herein, will provide free public education for children who reside on Indian lands, and whose membership in the schools of such agency has not formed and will not form the basis for payments under other provisions of this chapter, and that the total number of such children represents a substantial percentage of the total number of children for whom such agency provides free public education, or that such Indian lands constitute a substantial part of the school district of such local educational agency, or that the total number of such children who reside on Indian lands located outside the school district of such agency equals or exceeds 100;
(2) the immunity of such Indian lands to taxation by such agency has created a substantial and continuing impairment of its ability to finance needed school facilities;
(3) such agency is making a reasonable tax effort and is exercising due diligence in availing itself of State and other financial assistance available for the purpose; and
(4) such agency does not have sufficient funds available to it from other Federal, State, and local sources to provide the minimum school
facilities required for free public education of a substantial percentage of the children in the membership of its schools,
he may provide the additional assistance necessary to enable such agency to provide such facilities, upon such terms and in such amounts (subject to the provisions of this section) as the Commissioner may consider to be in the public interest; but such additional assistance may not exceed the portion of the cost of such facilities which the Commissioner estimates has not been, and is not to be, recovered by the local educational agency from other sources, including payments by the United States under any other provisions of this chapter or any other law. Notwithstanding the provisions of this subsection, the Commissioner may waive the percentage requirement in paragraph (1) whenever, in his judgment, exceptional circumstances exist which make such action necessary to avoid inequity and avoid defeating the purposes of this section. Assistance may be furnished under this subsection without regard to paragraph (2) (but subject to the other provisions of this subsection and subsection (e) of this section) to any local educational agency which provides free public education for children who reside on Indian lands located outside its school district. For purposes of this subsection "Indian lands" means Indian reservations or other real property referred to in this second sentence of section 645 (1) of this title.
(b) Alternative eligibility requirements due to impairment in financing abilities created by immunity from taxation of Indian lands.
If the Commissioner determines with respect to any local educational agency that—
(1) such agency is providing or, upon completion of the school facilities for which provision is made herein, will provide free public education for children who reside on Indian lands, and whose membership in the schools of such agency has not formed and will not form the basis for payments under other provisions of this chapter, and that the total number of such children represents a substantial percentage of the total number of children for whom such agency provides free public education, or that such Indian lands constitute a substantial part of the school district of such local educational agency, or that the total number of such children who reside on Indian lands located outside the school district of such agency equals or exceeds one hundred; and
(2) the immunity of such Indian lands to taxation by such agency has created a substantial and continuing impairment of its ability to finance needed school facilities;
he may, upon such terms and in such amounts (subject to the provisions of this section) as the Commissioner may consider to be in the public interest, provide the additional assistance necessary to enable such agency to provide the minimum school facilities required for free public education of children in the membership of the schools of such agency who reside on Indian lands; but such additional assistance may not exceed the portion of the cost of constructing such facilities which the Commissioner estimates has not been, and is not to be, recovered by the local educational agency from other sources, including payments by the United States under any other provisions of this chapter or any other law. Notwithstanding the provisions of this subsection, the Commissioner may waive the percentage requirement in paragraph (1) whenever, in his judgment, exceptional circumstances exist which make such action necessary to avoid inequity and avoid defeating the purposes of this section. Assistance may be furnished under this subsection without regard to paragraph (2) (but subject to the other provisions of this subsection and subsection (e) of this section, to any local educational agency which provides free public education for children who reside on Indian lands located outside its school district. For purposes of this sub-section "Indian lands" means Indian reservations or other real property referred to in the second sentence of section 645(1) of this title.
(c) Eligibility requirements due to impairment in financing abilities created by immunity from taxation of Federal property.
If the Commissioner determines with respect to any local educational agency—
(1) that (A) such agency is providing or, upon completion of the school facilities for which provision is made herein, will provide, free public education for children who are inadequately housed by minimum school facilities and whose membership in the schools of such agency has not formed and will not form the basis for payments under other provisions of this chapter, and (B) the total number of such children represents a substantial percentage of the total number of children for whom such agency provides free public education, and (C) Federal property constitutes a substantial part of the school district of such agency,
(2) that the immunity of such Federal property from taxation by such agency has created a substantial and continuing impairment of such agency's ability to finance needed school facilities,
(3) that such agency is making a reasonable tax effort and is exercising due diligence in availing itself of State and other financial assistance for the purpose, and
(4) that such agency does not have sufficient funds available to it from other Federal, State, and local sources to provide the minimum school facilities required for free public education of a substantial percentage of the children in the membership of its schools,
he may provide the assistance necessary to enable such agency to provide minimum school facilities for children in the membership of the schools of such agency whom the Commissioner finds to be inadequately housed, upon such terms and conditions, and in such amounts (subject to the applicable provisions of this section) as the Commissioner may consider to be in the public interest. Such assistance may not exceed the portion of the cost of such facilities which the Commissioner estimates has not been, and is not to be, recovered by the local educational agency from other sources, including payments by the United States under any other provisions of this chapter or any other law. Notwithstanding the provisions of this sub-section, the Commissioner may waive the percentage requirement in paragraph (1) whenever, in his judgment, exceptional circumstances exist which make such action necessary to avoid inequity and avoid defeating the purposes of this subsection.
(d) Authorization of appropriations.
There are authorized to be appropriated for each fiscal year such sums as may be necessary to carry out the provisions of this section. There are also authorized to be appropriated such sums as may be necessary for administration of such provisions. Amounts so appropriated, other than amounts appropriated for administration, shall remain available until expended.
(e) Applications; priority of approvals; conditions precedent; consultation with agencies.
No payment may be made to any local educational agency under subsection (a) or (b) of this section except upon application therefor which is submitted through the appropriate State educational agency and is filed with the Commissioner in accordance with regulations prescribed by him, and which meets the requirements of section 636 (b) (1) of this title. In determining the order in which such applications shall be approved, the Commissioner shall consider the relative educational and financial needs of the local educational agencies which have submitted approvable applications and the nature and extent of the Federal responsibility. No payment may be made under subsection (a) or (b) of this section unless the Commissioner finds, after consultation with the State and local educational agencies, that the project or projects with respect to which it is made are not inconsistent with over-all State plans for the construction of school facilities. All determinations made by the Commissioner under this section shall be made only after consultation with the appropriate State educational agency and the local educational agency.
(f) Payments to local agencies; repayments of unexpended funds.
Amounts paid by the Commissioner to local educational agencies under subsection (a) or (b) of this section may be paid in advance of, or by way of reimbursement for, work performed or purchases made pursuant to the agreement with the Commissioner under this section, and may be paid in such installments as the Commissioner may determine. Any funds paid to a local educational agency and not expended or otherwise used for the purposes for which paid shall be repaid to the Treasury of the United States.
(g) Application of sections 631 to 640 of this title.
None of the provisions of sections 631 to 640 of this title, both inclusive, other than section 636 (b)(1) of this title, shall apply with respect to determinations made under this section.
(h) Congressional declaration of policy with respect to school construction assistance for Indian children.
It is hereby declared to be the policy of the Congress that the provision of assistance pursuant to subsections (a) and (b) of this section shall be given a priority at least equal to that given to payments made pursuant to section 640 of this title. (Sept. 23, 1950, ch. 995, § 14, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 555, and amended Oct. 3, 1961, Pub. L. 87-344, title I, § 101(b), 75 Stat. 759, renumbered Oct. 16, 1968, Pub. L. 90-576, title I, § 101(a)(1), 82 Stat. 1064; Dec. 18, 1963, Pub. L. 88-210, title III, § 301(b), formerly § 31(b), 77 Stat. 419; Oct. 16, 1964, Pub. L. 88-665, title XI, § 1101(b), 78 Stat. 1109; Nov. 3, 1966, Pub. L. 89-750, title II, § 225, 80 Stat. 1214; Jan. 2, 1968, Pub. L. 90-247, title II, § 203, 81 Stat. 807; Apr. 13, 1970, Pub. L. 91-230, title II, §§ 205(a), 206, 84 Stat. 158, 159.)
For the purposes of this chapter—
(1) The term "Federal property" means real property which is owned by the United States or is leased by the United States, and which is not subject to taxation by any State or any political subdivision of a State or by the District of Columbia. Except for the purposes of section 640 of this title, such term includes (A) real property held in trust by the United States for individual Indians or Indian tribes, and real property held by individual Indians or Indian tribes which is subject to restrictions on alienation imposed by the United States, (B) any low-rent housing (whether or not owned by the United States) which is part of a low-rent housing project assisted under the United States Housing Act of 1937, and (C) any school which is providing flight training to members of the Air Force under contractual arrangements with the Department of the Air Force at an airport which is owned by a State or a political subdivision of a State. Such term also includes any interest in Federal property (as defined in the foregoing provisions of this paragraph) under an easement, lease, license, permit, or other arrangement, as well as any improvements of any nature (other than pipelines or utility lines) on such property even though such interests or improvements are subject to taxation by a State or political subdivision of a State or by the District of Columbia. Notwithstanding the foregoing provisions of this paragraph, such term does not include (A) any real property used for a labor supply center, labor home, or labor camp for migratory farm workers and, (B) any real property under the jurisdiction of the Post Office Department and used primarily for the provision of postal services.
(2) The term "child" means any child who is within the age limits for which the applicable State provides free public education.
(3) The term "parent" includes a legal guardian or other person standing in loco parentis.
(4) The term "free public education" means education which is provided at public expense, under public supervision and direction, and without tuition charge, and which is provided as elementary or secondary school education in the applicable State.
(5) The membership of schools shall be determined in accordance with State law or, in the absence of State law governing such a determination, in accordance with regulations of the Commissioner; except that, notwithstanding any other provision of this chapter, where the local educational agency of the school district in which any child resides makes or contracts to make a tuition payment for the free public education of such child in a school situated in another school district, for purposes of this chapter the membership of such child, shall be held and considered—
(A) if the two local educational agencies concerned so agree, and if such agreement is approved by the Commissioner, as membership of a school of the local educational agency receiving such tuition payment;
(B) in the absence of any such approved agreement, as membership of a school of the local educational agency so making or contracting to make such tuition payment.
In any determination of membership of schools, children who are not provided free public education (as defined in paragraph (4)) shall not be counted.
(6) The average per pupil cost of constructing minimum school facilities in the State in which the school district of a local educational agency is situated shall be determined by the Commissioner of Education on the basis of the contract cost per square foot under contracts for the construction of school facilities (exclusive of costs of site improvements, equipment, and architectural, engineering, and legal fees) entered into in the State for the second year of the four year increase period designated in the applica-
tion, increased by a percentage estimated by the Commissioner to represent additional costs for site improvements, equipment, and architectural, engineering, and legal fees, and multiplied by a factor estimated by the Commissioner to represent the area needed per pupil in minimum school facilities. If the Commissioner finds that the information available for the State concerned for such preceding fiscal year is inadequate or not sufficiently representative, he shall determine such cost on the basis of such information as he has available and after consultation with the State educational agency. The cost of constructing minimum school facilities in the school district of a local educational agency shall be determined by the Commissioner, after consultation with the State and local educational agencies, on the basis of such information as may be contained in the application of such local educational agency and such other information as he may obtain.
(7) Estimates of membership, and all other determinations with respect to eligibility and maximum amount of payment, shall be made as of the time of the approval of the application for which made, and shall be made on the basis of the best information available at the time of such approval.
(8) The terms "construct", "constructing", and "construction" include the preparation of drawings and specifications for school facilities; erecting, building, acquiring, altering, remodeling, improving, or extending school facilities; and the inspection and supervision of the construction of school facilities.
(9) The term "school facilities" includes classrooms and related facilities; and initial equipment, machinery, and utilities necessary or appropriate for school purposes. Such term does not include athletic stadiums, or structures or facilities intended primarily for athletic exhibitions, contests, or games or other events for which admission is to be charged to the general public. Except as used in sections 639 and 640 of this title, such term does not include interests in land and off-site improvements.
(10) Whether or not school facilities are minimum school facilities shall be determined by the Commissioner, after consultation with the State and local educational agencies, in accordance with regulations prescribed by him. Such regulations shall (A) require the local educational agency concerned to give due consideration to excellence of architecture and design, (B) provide that no facility shall be disqualified as a minimum school facility because of the inclusion of works of art in the plans therefor if the cost of such works of art does not exceed 1 per centum of the cost of the project, and (C) require compliance with such standards as the Secretary may prescribe or approve in order to insure that facilities constructed with the use of Federal funds under this chapter shall be, to the extent appropriate in view of the uses to be made of the facilities, accessible to and usable by handicapped persons.
(11) The term "local educational agency" means a board of education or other legally constituted local school auhority having administrative control and direction of free public education in a county, township, independent, or other school district located within a State. Such term includes any State agency which directly operates and maintains facilities for providing free public education or which has responsibility for the provision of such facilities.
(12) The term "State educational agency" means the officer or agency primarily responsible for the State supervision of public elementary and secondary schools.
(13) The term "State" means a State, Puerto Rico, Guam, the District of Columbia, American Samoa, the Virgin Islands, or Wake Island.
(14) The terms "Commissioner of Education" and "Commissioner" mean the United States Commissioner of Education.
(15) The term "base year" means the third or fourth regular school year preceding the fiscal year in which an application was filed under this chapter as may be designated in the application, except that in the case of an application based on children referred to in paragraph (2) or (3) of section 635(a) of this title, the base year shall in no event be later than the regular school year 1968-1969; and
(16) The term "increase period" means the period of four consecutive regular school years immediately following such base year. (Sept. 23, 1950, ch. 995, § 15, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 556, and amended June 25, 1959, Pub. L. 86-70, § 18 (c), 73 Stat. 144; July 12, 1960, Pub. L. 86-624, § 14 (c), 74 Stat. 414; Oct. 3, 1961, Pub. L. 87-344, title I, § 101 (c), 75 Stat. 759; Dec. 18, 1963, Pub. L. 88-210, title III, § 301(c), formerly § 31(c), 77 Stat. 419, renumbered Oct. 16, 1968, Pub. L. 90-576, title I, § 101(a)(1), 82 Stat. 1064; Oct. 16, 1964, Pub. L. 88-665, title XI, § 1101(c), (d), 78 Stat. 1109; Nov. 3, 1966, Pub. L. 89-750, title II, §§ 222(b)-(d), 230-232, 80 Stat. 1213-1216; Jan. 2, 1968, Pub. L. 90-247, title II, § 201, title III, § 301(d)(2), 81 Stat. 806, 813; Apr. 13, 1970, Pub. L. 91-230, title II, §§ 201(a)(2), 203(a) (1), (2), 84 Stat. 154, 155.)
In determining the payment to be made to a local educational agency under this chapter the Commissioner shall disregard the announcement, made November 19, 1964, of a decrease in or cessation of Federal activities in certain areas, and shall carry out such chapter as if such announcement had not been made. (Sept. 23, 1950, ch. 995, § 17, as added Nov. 1, 1965, Pub. L. 89-313, § 3, 79 Stat. 1161.)
