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Published in Print: November 4, 2015, as Key Spending Provision in House ESEA Bill's Cross Hairs

Key Spending Provision in House ESEA Bill's Cross Hairs

'Maintenance of effort' a facet of law from start

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Ever since President Lyndon B. Johnson signed the Elementary and Secondary Education Act into law in 1965, education funding advocates have relied on a highly technical provision they see as a safeguard for ensuring money earmarked for the nation's most disadvantaged students is used as originally intended.

As congressional lawmakers continue to negotiate a final bill for the latest reauthorization of the ESEA, those advocates now have cause to be nervous.

What's known as the "maintenance of effort" provision requires that districts spend in their current fiscal year at least 90 percent of what they spent in state and district funds in the previous fiscal year, in order to get at least that much money again under various federal programs, including Title I grant money for low-income students. Otherwise, their federal funding for those programs is reduced proportionately.

But under the bill to reauthorize ESEA approved by the House of Representatives earlier this year, that maintenance-of-effort requirement would be eliminated.

Advocates alarmed by that prospect argue that besides its critical role in maintaining the ESEA's original intent to protect the civil rights of needy students, the maintenance-of-effort provision also protects schools against drastic state and local cuts to education aid, particularly during tough economic times such as the Great Recession. Removing it, they say, is a solution in search of a problem.

However, people skeptical of maintenance of effort say it unfairly creates an atmosphere of distrust between the federal government and state and local leaders, particularly at a time when, skeptics believe, massive disinvestment in education by the states is unlikely. They also believe maintenance of effort might impede needed fundamental shifts in K-12 finance and policy.

Sending the Right Message

In addition to Title I aid, maintenance of effort applies to Title II grants to states to improve teacher quality, grants for rural education, and other programs. States and districts can both apply for waivers from maintenance-of-effort penalties. (The ESEA provision being discussed is separate from maintenance-of-effort requirements under the main federal special education statute.)

Lawmakers negotiating the future of maintenance of effort in the ESEA will have to weigh it alongside other possible changes to federal K-12 funding in both the House and Senate bills, including potential changes to Title I formulas for states and districts, and whether to allow Title I money to follow students to public schools of their choosing.

The Obama administration has defended maintenance of effort in the past. For example, the president's threat to veto the proposed Student Success Act of 2013—the House ESEA rewrite that was similar in several ways to the House reauthorization bill passed this year—mentioned the removal of maintenance of effort as a major problem with the 2013 bill.

The U.S. Department of Education does grant waivers from maintenance of effort, if there are events like a natural disaster or a significant drop in a district's financial resources. The department reported it has received 788 such waiver requests since 2002, with the plurality of those (43 percent) occurring between the 2008-09 and 2010-11 school years, when budgets in many cases dropped precipitously.

The department did not provide by Education Week's print deadline information on how many of those requests were approved. But Noelle Ellerson, an associate executive director at AASA, the Schools Superintendents Association, said based on her knowledge of federal data, the majority of them in the early years of the Great Recession were approved.

In citing the need for the provision, supporters of maintenance of effort point to the "massive resistance" movement in Virginia, in which state officials sought to thwart integration in public education in part by closing down schools rather than complying with a U.S. Supreme Court order to desegregate them.

Oversight Mechanism

That sort of activity highlights in broad terms why the federal government should essentially use its aid for disadvantaged students as an oversight mechanism for state and local decisions that affect resources, such advocates say.

In more contemporary terms, they point to the potential damage that could result to schools if districts, for reasons including but not limited to fiscal hardship, could cut 15 percent or 20 percent of their combined resources for schools, instead of the 10 percent cap on such reductions now imposed by maintenance of effort.

"Maintenance of effort has a very important psychological value," said Liz King, the senior policy analyst and director of education policy at the Leadership Conference on Civil Rights. "It's a useful test. I don't want the message that it sends to get lost."

However, others who are more skeptical of the federal government's power to intervene and dictate budgetary matters say maintenance of effort is in danger of becoming a harmful anachronism.

For example, it wasn't designed to consider a program like Nevada's new education savings accounts, said Lindsey Burke, a fellow at the Heritage Foundation, which supports school choice. That program, approved this year by state lawmakers, allows parents to use 90 percent of the state's per-pupil funding amount for various educational services, including private religious schools and home schooling.

If a large share of Nevada students ultimately use those accounts, Burke said, there could be—but for the maintenance-of-effort rule—corresponding, significant, and appropriate decreases in local public school expenditures that wouldn't endanger federal aid.

"If we're thinking about big structural reforms to how we reallocate state and local resources, are there requirements like maintenance of effort that get in the way of those reforms?" she said.

Critics of maintenance of effort also note that states and districts can make significant long-term cuts without endangering relevant federal funds, as long as they adhere to a strategy of making annual budget cuts that are no greater than 10 percent of prior-year funding levels.

More broadly, Burke argued that provisions like maintenance of effort have an influence out of proportion to the share of funding for public schools that comes from Washington—usually around 10 percent. While maintenance of effort hasn't entirely outlived its purpose, she said, it needs a retrofit to give states and localities more breathing room.

"You'd be hard-pressed to find school districts who would be inclined to ... replicate something like what we saw in Virginia," Burke said, referring to massive resistance.

Over the last few state budget cycles, there has been relatively modest growth in K-12 spending.

State Spending

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The majority of states, for example, increased per-student spending from fiscal 2014 to fiscal 2015, a report from the Center on Budget and Policy Priorities found last year, even as most remained below spending levels from before the Great Recession. And the National Association of State Budget Officers reported earlier this year that the majority of governors' proposed budgets increased spending on public schools.

Separate spending issues that are often lumped in with maintenance of effort, meanwhile, weren't dealt with in either the House or Senate bill.

One example is the ESEA provision called comparability, which nominally requires districts to provide comparable services to high-poverty and low-poverty schools. The specifics of how comparability should work are often the subject of heated debate.

Vol. 35, Issue 11, Pages 15,17

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