Members of the ESSA negotiated rulemaking committee couldn’t come to a consensus about how to regulate the Every Student Succeeds Act when it comes to ensuring that federal Title I aid for low-income students does not merely supplant state and local funding.
The “supplement-not-supplant” rule is designed to ensure that federal funding isn’t filling in funding gaps left by state and local decisionmakers. It promised to be one of the contentious issues on the last day of the committee’s three-day session this week. And indeed, despite hours of discussion on Friday, the members could not agree how to balance various concerns. U.S. Department of Education staff then said they’d go back to the drawing board to try to craft new language for the regulation.
Negotiators agreed to come back for a third ESSA negotiating session from April 18-19 to discuss regulations for the law.
The proposed regulation on this issue, released a week ago by the Education Department after the first round of negotiated rulemaking discussions that took place last month, would require that districts’ methods of showing compliance with supplement-not-supplant ultimately “results in the LEA spending an amount of State and local funds per pupil in each Title I school that is equal to or greater than the average amount spent per pupil in non-Title I schools.” In other words, per-pupil spending levels in the two types of schools have to be brought in line with each other—but there’s debate on what exactly that means (more below).
But state and local school administrators, in particular, argued strenuously that the language went too far, would not work in practice, and could create a host of unintended consequences.
Others, including representatives from the Leadership Conference on Civil and Human Rights and the NAACP, argued that the regulations were an appropriate safeguard for ensuring that Title I money is used as federal law requires.
Disrupting School Operations
Let’s start with those who disliked the regulation. They said the regulations amounted to an out-of-bounds micromanaging of district expenditures in at least two clear ways:
•They said that a separate part of ESSA says the Education Department can’t dictate to districts what method they use to show that they’re abiding by supplement-not-supplant—but that the proposed language amounts to exactly that.
• And they also argued the regulations defied ESSA’s statutory language by requiring equalized per-pupil spending between schools in the regulations.
Thomas Ahart, the superintendent of Des Moines, Iowa schools, said it would place too high of a burden on his schools to reallocate resources in order to equalize per-pupil funding between Title I and non-Title I schools. He and others raised the idea that the regulation, as written, would force transfers of teachers to balance out personnel expenditures between schools, and could disrupt various methods of budgeting for schools that deal with weighted-student formulas and by full-time equivalent positions.
“My biggest concern is how it’s going to impact the day to day operations,” said Alvin Wilbanks, the superintendent of Gwinnett County schools in Georgia.
Meanwhile, Tony Evers, Wisconsin’s state superintendent, also expressed concern that the regulations required that state and local funds at Title I schools provide “basic educational services.” What exactly did that mean, Evers asked, particularly in states and districts without legal definitions of basic education?
“There’s just so much we’ve embedded in terms of supplementing the classrooms,” said Lynn Goss, a paraprofessional in the Menomonie district in Wisconsin. “How do you figure out what you can take away and keep it basic?”
Upholding the Intent of Title I
First, addressing the argument that the regulation inappropriately forced equalized per-pupil spending between schools, Ary Amerikaner, a deputy assistant secretary at the department, said the regulation didn’t demand equalized spending because it only referred to the “average” of per-pupil spending in non-Title I schools, not exactly equal spending.
Amerikaner also said it was the Education Department’s understanding that it would not necessarily require huge funding transfers between schools in many situations in order for districts to be in compliance with the proposal. Districts could take various approaches to meet the proposed regulatory language.
One of the more vigorous defenders of per-pupil expenditure regulation proposed was Liz King, the director of education policy at the Leadership Conference on Civil and Human Rights. She said that the only way districts would be violating the per-pupil equity rule between Title I and non-Title I schools is if they were, in fact, using Title I money to supplant state and local funds and not supplement those funds, and therefore violating ESSA.
“The only flexibility that is not allowed that you can’t spend less in Title I schools,” King said.
King also noted that there’s a new reporting requirement in ESSA in which districts and schools must publish per-pupil spending, including personnel and non-personnel costs. The issue of teacher salaries as it relates to supplement-not-supplant has been a contentious issue for a long time— this blog item I wrote last week on teacher-pay equity as a policy and political issue gets into some of that background.
And Janel George, the senior education policy counsel at the NAACP Legal Defense Fund, made a similar argument that the regulation did not ask districts to do anything that they were essentially not required to do under supplement-not-supplant.
“I see what it should result in, which is how we should measure compliance,” George said.
At one point, the committee considered a proposal to strike the language concerning “basic educational” programs and per-pupil spending between Title I and non-Title I schools from the proposed regulations and put it into regulatory guidance instead. But the proposal was rejected.
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