That big fight over spending rules for the Every Student Succeeds Act has ended not with a bang, but a whimper: U.S. Secretary of Education John B. King, Jr. is throwing in the towel, withdrawing a proposed regulation for a section of the law known as “supplement-not-supplant” that had strong backing in the civil rights community, but angered state chiefs, advocates for districts, and Republicans in Congress.
The proposal was all but certain to be tossed by a Republican-backed Congress and the Trump administration.
The department’s draft rule, released in August, would have pushed for districts and states to make sure they were spending roughly same amount of money—including for teachers’ salaries—in schools that serve a sizeable population of poor students and less-poor schools.
Civil rights advocates applauded the secretary for trying to fix what they saw as a long-standing problem when it comes to making sure students in poverty get their fair share of resources. But advocates for districts and states said the regulation would have been nearly impossible to comply with and could have led to unintended consequences, including forced teacher transfers.
If the department had put through a final rule on the issue, it would very likely have been subject to the Congressional Review Act, a law that allows Congress to strike down new regulations that it disagrees with. Once lawmakers vote a particular regulation down, agencies are prohibited from crafting a similar rule until new legislation is passed.
Up until now, the “CRA” has only been used once. But now that Congress and the White House are in Republican hands, lawmakers have put a slew of Obama administration’s regulations on their target list.
In explaining the department’s decision Wednesday, Dorie Nolt, a spokeswoman for the agency, didn’t mention the looming threat of congressional elimination. The department simply ran out of time to write a strong regulation, she said.
“While we worked tirelessly to put forward a regulation that implements that simple requirement and to incorporate the extensive feedback we received, we ultimately did not have time to publish a strong final regulation that lives up to the promise of the law. We urge supporters of public education across the country and the political spectrum to continue the fight for equitable access to resources both within and across school districts,” Nolt said.
The Council of Chief State School Officers, which vehemently opposed the department’s proposal, is happy with the move.
“We appreciate the U.S. Department of Education’s recognition that the draft of the supplement-not-supplant provision would not draw resources to kids who need them the most,” said Chris Minnich, the group’s executive director in a statement. “State chiefs are focused on creating an equitable education system that provides opportunities to all kids. As states transition to the Every Student Succeeds Act, we need stability in the federal policy environment in order to create strong plans. We look forward to working with the new administration to create that stability.”
For her part, Liz King, the director of education policy for the Leadership Conference on Civil and Human Rights, said she was bummed that there wasn’t enough time to finalize the regulation, but praised the Obama administration’s record of standing up for disadvantaged kids.
“The clock ran out here, but we’re not done fighting to ensure robust enforcement of the nation’s education and civil rights laws and justice for the nation’s students,” King said.
Withdrawing the regulation now leaves the door open for a future president and education secretary to try to regulate on supplement-not-supplant. The provision has been in the underlying Elementary and Secondary Education Act for decades, and is aimed at making sure that federal Title I dollars for disadvantaged kids are an extra for schools that serve a significant chunk of students in poverty, and not a replacement for state and local funds.
The rules over supplement-not-supplant aren’t the only Obama ESSA regulations under threat from Republicans in Congress. Senate lawmakers have also targeted the Obama administration’s accountability regulations, which were finalized late last year and have support from advocates for states and school districts, as well as civil rights advocates. At her confirmation hearing Tuesday, Betsy DeVos, President-elect Donald Trump’s choice for education secretary, wouldn’t commit to keeping those regulations on the books.
The controversy over the spending rules ate up a ton of airtime during King’s sole year on the job. King and his team first proposed a rule that would have closed a long-standing loophole during a negotiated rulemaking on the law.
The committee of negotiators failed to agree on the proposal, so the department put forward a draft version in August. It gave states and districts additional flexibility to meet the department’s goals, but was still seen as too rigid by state and district advocates and Republicans.
King though, said recently he doesn’t regret the fight.
“For us, the work on supplement-not-supplant was a reflection of the commitment in the law to get Title I dollars to the students most in need and the national responsibility to address issues of resource equity,” King told me in an exit interview last week. “Raising that issue was not just about this moment. It was about the broader responsibility.”
So what happens next? It’s unclear if the Trump administration will want to come up with its own regulation for supplement-not-supplant. If it does, it will have to restart the cumbersome “negotiated rulemaking” process all over again, and convene a new group of educators and advocates to write a new rule.