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Every Student Succeeds Act

Education Department Releases Revised ESSA Rules Proposal

By Alyson Klein & Andrew Ujifusa — April 15, 2016 4 min read
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Following two rounds of negotiated rulemaking for the Every Student Succeeds Act, the U.S. Department of Education on Friday released revised proposals for regulations on two policy issues: assessments and “supplement-not-supplant.” The members of the negotiated-rulemaking committee return for a third and final round of negotiations on April 18 and April 19. Let’s look at what these fresh proposals for those two policy issues contain.


Supplement-not-supplant requires that federal Title I money for disadvantaged students be used in addition to, and not used to take the place of, state and local money. The revision released Friday to the Education Department’s initial proposal for the supplement-not-supplant rule seems designed to provide districts more flexibility when it comes to being compliant with the law. But it’s not clear if it will lead the group to reach a consensus on the issue.

The initial draft released by the department earlier this month required districts to demonstrate that state and local spending in Title I schools, on a per-pupil basis, was at least equal to or greater than their average per-pupil spending in non-Title I schools. It also required state and district funds to be sufficient for a “basic educational program” as defined by the state or local jurisdiction, among other requirements.

But those proposals and others caused consternation among representatives of local and state school officials during ESSA negotiations at a meeting of the negotiated-rulemaking committee for ESSA on April 8.

So what are some of the key supplement-not-supplant changes released by the department in its new draft on Friday?

  • It eliminates the language about “basic educational programs” that districts would have had to prove they are meeting using state and local funds.
  • It eliminates references to state and local funds in Title I schools, in conjunction with federal aid, providing services required by law for students with disabilities and English-language learners.
  • It specifically takes into account district budgeting systems that don’t rely on per-pupil expenditures, but instead use budget systems such as staff positions or weighted student-funding formulas.
  • A state that cannot meet the per-pupil expenditure test between Title I and non-Title I schools for a single school year wouldn’t be considered to be in violation of supplement-not-supplant, unless it also failed to meet that expenditure test in one or more of the preceding three school years.
  • A district would be able to rebut a finding that its methodology for showing compliance with supplement-not-supplant doesn’t pass the smell test. This would apply specifically to non-Title I schools that serve a high proportion of English-language learners or students with disabilities.

All of those seem designed to provide districts more flexibility and alleviate at least some of the concerns raised by state and local K-12 leaders.

What’s one key provision that hasn’t changed between the two drafts? The per-pupil expenditure test between Title I and non-Title I schools. And Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee, doesn’t like it. He excoriated U.S. Secretary of Education John B. King Jr. over that provision, saying the department was overstepping its authority. He said if the department stuck by that language, he’d try to undo it through the federal budget process.

However, King vigorously defended the regulations both during and after that hearing, saying they represented the department’s view that the principle of supplement-not-supplant must be defended. And several Democratic senators said they wanted King’s department to create strong regulations to ensure that schools are held accountable for their use of federal funds.


There are also some tweaks to the proposed assessment language, most of which reflect agreements between negotiators, or feedback from the negotiating committee. For instance:

  • The department’s original proposed regulations on language allowing students taking advanced math tests in 8th grade instead of the state exam called for states to make sure all students have access to those advanced math classes. The revised proposal gets at the same goal, but would make life a little easier for states, allowing them to simply describe their strategies for giving all students access to advanced math classes.
  • The department’s original proposed language didn’t have a hard-and-fast requirement for charter schools to be consulted, or for state charter laws to apply to high school alternative tests. That’s been added, based on the committee’s deliberations.
  • And there’s a tweak to the definition of nationally recognized test language as well. The original language said that districts could substitute any nationally recognized test and defined that as a test that’s been designed for college placement or admissions. The tweaked language would make it clear that the test actually has to be accepted by postsecondary institutions for those purposes. That would seem to prevent a company from coming up with some kind of fly-by-night and saying it’s for college placement purposes and then getting districts to use it. It would also prevent districts from going with PARCC or Smarter Balanced (which are both aligned to the Common Core State Standards), if those tests don’t end up being used for college placement, as they are designed to be.
  • On one of the most contentious issues under discussion—the department’s proposed definition of severe cognitive disabilities—has been tweaked a bit, to make it clear that teams of teachers reviewing individualized education programs, or IEPs, have a role.
  • And, at the request of committee members representing Native American tribes, the department has added language that would allow students in Native-language immersion programs to take tests in their ancestral language for accountability purposes.