Sparks Fly as Congress Reviews ESSA Rulemaking Process

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The way the Every Student Succeeds Act handles federal spending on students from low-income backgrounds has become a major point of disagreement between some in Congress and the U.S. Department of Education—and could even lead to a budget showdown if the department pushes through ESSA regulations that fly in the face of influential lawmakers.

In an oversight hearing here last week, Sen. Lamar Alexander, R-Tenn., the chairman of the Senate Health, Education, Labor, and Pensions Committee, told U.S. Secretary of Education John B. King Jr. that he believed the Education Department's proposal for regulating how federal Title I money must supplement, and not supplant, state and local aid violates the letter and spirit of ESSA.

"Not only is what you're doing against the law, the way you're trying to do it is against another provision in the law," Alexander told King in his opening remarks.

And Alexander said he'd use every power available—including the appropriations process—to overrule the regulations if the department's proposal were to become final. He also said he'd encourage a lawsuit against the Education Department if it does not reconsider its proposed language.

But King denied that his department—which made the proposal to a panel of education advocates and officials that is negotiating ESSA regulations—was overstepping its authority. He told Alexander the agency is merely trying to ensure that districts are using an appropriate approach to following federal requirements for accessing federal funds. And in a meeting with reporters the day after the hearing, he said supplement-not-supplant is crucial to upholding the civil rights component of federal education law.

"You can have a school with much lower percentages of poverty actually spending $1,000, $2,000, $3,000 more than a Title I school blocks away," King told reporters, speaking of the federal formula grant program that aids disadvantaged students. "That's clearly inconsistent with supplement-not-supplant. ... We've got to get to a place where supplement-not-supplant has real meaning."

The supplement-not-supplant requirement aims to make sure that federal money earmarked for students from low-income backgrounds doesn't backfill spending that state and local funding should take care of.

A separate requirement in ESSA called comparability, which wasn't changed in the new law, requires comparable spending between schools with large shares of disadvantaged students (Title I schools) and non-Title I schools. The requirement leaves out, however, whether teachers in both types of schools are actually being paid comparable real-life salaries, as long as they are on the same salary schedule.

Earlier this month, negotiators working to come up with rules under ESSA sharply disagreed over the Education Department's draft rules governing supplement-not-supplant. The proposal says districts can take various approaches in showing how federal funds are supplementing state and local aid, provided that per-pupil spending in Title I schools was at least equal to the average per-pupil spending levels in non-Title I schools.

Some negotiators expressed concern that the proposed rule would essentially mandate equal spending between the two types of schools, force teacher transfers to equalize spending on salaries between schools, and disrupt how districts allocate money and resources. Some argued that, in essence, the department was improperly trying to alter how ESSA deals with comparability through supplement-not-supplant rules.

But civil rights advocates and others argued that only districts violating supplement-not-supplant would actually run afoul of the department's proposed language.

In last week's Senate hearing, Alexander said the proposed regulations directly contradict ESSA's prohibitions regarding the Education Department's power and would improperly encroach on districts' authority. He stressed that Congress considered changing the comparability requirement and decided against it, but that King and his staff were now doing just that.

"We're smart enough to write a law in plain English," the chairman told King—at one point calling the secretary's defense of the proposed rules "ridiculous."

Rocky Path

If the negotiators fail to reach a consensus on supplement-not-supplant regulations, the department could write regulations on its own. But Congress could review them.

And it's possible that lawmakers could use the appropriations process to overturn regulations previously adopted by the department—that's what Alexander stressed early in the hearing. If the department persisted with moving ahead with the regulations, Alexander said to King, "You're going to come up against a coalition that's as broad as anything we've had in education."

Groups representing state schools chiefs, school administrators, and unions oppose the department's draft spending language.

But King said the rules would uphold the intent of supplement-not-supplant, while allowing districts a variety of avenues to provide equitable spending between schools by adding offerings like advanced coursework and preschool.

"We should try to do what we can to assure the principle of supplement-not-supplant" is followed, King told senators, adding that districts wouldn't be forced into one narrow response to comply with the proposed regulations. "It doesn't require teacher transfers."

Backing King

Several Democratic senators sided with King during the hearing and, like King, stressed the civil rights components of ESSA.

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Sen. Patty Murray, D-Wash., the education committee's ranking member, noted that Congress wanted supplement-not-supplant to go through the negotiated-rulemaking process. "We need to make sure that these federal dollars continue to support and augment state and local dollars, and don't replace them," she said.

And Sen. Elizabeth Warren, D-Mass., said the idea of a strong regulatory framework for ESSA was key for her and many of her colleagues, as well as for groups representing vulnerable student populations.

"I voted for this law on the explicit agreement that the Department of Education would enforce its accountability provisions through meaningful regulations," Warren said.

Vol. 35, Issue 28, Pages 14, 16

Published in Print: April 20, 2016, as Sparks Fly as Congress Reviews ESSA Rulemaking Process
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