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Democratic Senators to King: Don’t Back Down On ESSA Rules Fight

By Alyson Klein — May 03, 2016 3 min read

Dear U.S. Secretary John B. King, Jr.: Write regulations for the Every Student Succeeds Act that ensure schools serving poor students get the federal funds they were intended to get and don’t back down from the fight over supplement-not-supplant, nine Democratic senators—including presidential contender Sen. Bernie Sanders of Vermont—wrote in a letter Monday.

The letter was spearheaded by Sens. Chris Murphy of Connecticut and Elizabeth Warren of Massachusetts, and signed by Sanders, as well as Sens. Barbara Mikulski of Maryland, Dianne Feinstein of California, Dick Durbin of Illinois, Al Franken of Minnesota, Chris Coons of Delaware, and Cory Booker of New Jersey. (All of those lawmakers supported passage of ESSA—or were absent from the vote—but none of them were among the key architects.)

“Simply put, we believe that state and local educational agencies should not use federal funds as an excuse to spend less money on low-income children,” the senators wrote. “The Department has the authority and responsibility to enforce the fiscal accountability safeguards in ESSA through strong regulations and oversight, and that’s precisely what we expect to see.”

So what exactly is going on here? It sounds like this bunch of senators were pretty happy with a draft proposal on regulations for supplement-not-supplant put forth by the U.S. Department of Education last month to a committee of educators, advocates, and experts trying to negotiate rules for ESSA.

Those regulations would require states and districts to make sure schools that serve poor kids and get federal Title I dollars, and those that don’t get Title I money, have access to roughly the same amount of state and local funding before they are allowed to tap the federal dollars.

As part of the new regulation, states and districts would have to consider actual teachers’ salaries and benefits, and not just make sure all teachers in the districts are on the same salary schedule, as they had in the past to meet this requirement in the law (which isn’t brand new to ESSA.)

As anyone who watched the negotiated rulemaking could tell you, the supplement-not-supplant rules were very, very controversial. Civil rights advocates saw a lot to like in them, while educators worried that they would be unworkable, have unintended consequences (like forced transfers of teachers), and go beyond what Congress intended. (This gets even more complicated, but if lawmakers had wanted to change the way salaries figure into the calculations for supplement-not-supplant, they would have changed another part of the law, called comparability. And they didn’t.) We know, this is probably the most complicated political fight you’ve ever heard about. Andrew has a good explainer here.

Since negotiated rulemaking failed on this issue, the department will get to write its own regulations. And it sounds like these senators are telling King and company to stay the course. Civil rights advocates have also told King they have his back on this issue.

Of course, other lawmakers, including Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee and an architect of ESSA, have a very different message for the department: You’re overstepping your bounds. Alexander has made it crystal clear that he thinks the department’s supplement-not-supplant regulations go way beyond what lawmakers had in mind when they wrote ESSA. He’s said he’ll do everything he can to stop them, including attaching a rider to the department’s spending bill. If all else fails, he’s urged school districts to sue if the regulation goes into effect.

The big takeaway from this latest development? The fight over supplement-not-supplant is far from over. But the big bipartisan love fest we saw when ESSA passed both chambers by big, bipartisan margins late last year is over. And if you don’t believe me, just watch what happens when the department releases regualtions for an arguably even more controversial part of the law, accountability, later this spring.

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