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Every Student Succeeds Act

Key GOP Senator Blasts Ed. Department’s Approach to ESSA Title I Spending

By Andrew Ujifusa — May 18, 2016 6 min read
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U.S. Sen. Lamar Alexander, R-Tenn., the Senate education committee chairman, repeatedly criticized the U.S. Department of Education Wednesday for what he said was an attempt to create a burdensome spending regulation governing federal money for poor students that would go beyond what the Every Student Succeeds Act allows.

In the third of six ESSA oversight hearings being held by the committee, several of those testifying, including teacher union leaders and a state superintendent, joined Alexander in that criticism.

However, Democratic lawmakers pushed back on the idea that the department should simply step away from the issue. They stressed that the federal government has a responsibility to ensure that the civil rights roots of the law are being honored, and that the department exercise robust oversight on whether federal funds were being improperly diverted away from poor students and misused.

The hearing took place a day after a federal watchdog agency reported that the segregation of poor students of color in American schools is on the rise, a point that Secretary of Education John B. King Jr. has raised to buttress his department’s actions to regulate federal spending. (More on that below.)

So what’s the proposed ESSA spending rule that was the primary focus of the hearing? Very quickly: It’s the requirement in the law that federal Title I aid to poor students supplements state and local dollars, and does not supplant gaps in funding. It’s called “supplement-not-supplant.” The U.S. Department of Education is widely expected to propose a regulation that in order to meet that provision of the law that districts would have to show that per-pupil spending in Title I schools (those with large shares of poor students) is at least equal to the average spending figure in non-Title I schools. The department has yet to formally propose the regulation, but similar language was discussed in a negotiating committee earlier this year without being agreed to.

‘Plain and Clear’

In his opening remarks, Alexander gave the Education Department an “A for cleverness” but still said it wasn’t following the law: “And if the administration can’t follow [statutory] language on this, it raises grave questions about what we might expect from future regulations.” (That’s a reference to upcoming accountability regulations, which the department will issue later this year and which will trigger a different, possibly even more controversial debate about the federal government’s role in ESSA.)

During a subsequent question-and-answer period with those giving testimoney, Alexander asked Associate Professor Nora Gordon at Georgetown University who studies federal K-12 finance, “The language, we thought, was pretty plain and clear. ... Isn’t it possible just to read the law and know what to do?”

Alexander also asked Gordon directly whether she thought the language being considered by the department would violate a separate provision of ESSA that says the federal government cannot mandate equalized per-pupil funding for a State, local educational agency, or school. Gordon, while noting that she is not an attorney, said she thought it did violate that provision.

Telling lawmakers to “Let us lead the way,” Wisconsin Superintendent Tony Evers said that even as he was trying to lead his state’s shift to ESSA, the department’s approach would hurt his efforts to properly tailor his state’s approach to the law.

“It’s clear that the proposed regulations ... exceed the department’s authority under the law,” Evers told the committee.

Democrats Defend Strong Federal Oversight

However, several Democratic lawmakers stressed the importance of equitable resources, as well as a robust federal oversight role in ensuring that disadvantaged students receive more support.

Sen. Patty Murray, D-Wash., the committee’s ranking member, stressed that ESSA is a civil rights law, and that “I expect the department to use its full authority” in exercising financial accountability under the law. (Murray stopped short of a specific defense of the department’s direction on the proposed ESSA spending rule, however, and she did not sign the letter several Democratic senators sent earlier this month urging the Education Department to stand by its position.)

But Sen. Elizabeth Warren, D-Mass., took Alexander and his GOP colleagues on the committee to task. She argued that regardless of what the final spending regulation looks like, Republican lawmakers seemed to be arguing that the financial accountability provisions in ESSA should be ignored.

“Ignoring accountability provisions is not an option,” Warren said.

And because ESSA’s primary responsibility is to provide more resources and opportunities to disadvantaged students as it upholds its legacy as a civil rights law, Sen. Chris Murphy, D-Conn., said, “I don’t think it ends at the text of the law.”

Both presidents of the two national teachers’ unions, Lily Eskelsen-García of the National Education Association and Randi Weingarten of the American Federation of Teachers, testified, and both urged officials to look beyond statistical levels of education spending, and to put more stress on providing differentiated support for various groups of students and various schools.

“Inventory the services in the best schools in the state, then make that the standard,” Eskelsen-García said.

One historical note here: In 2010, the NEA signed onto a change to the part of federal law—then the No Child Left Behind Act—requiring local spending between high- and low-poverty schools to be comparable. That proposed change would have ended a part of the law that excludes teacher salaries from being used in tests of that intradistrict spending. Apparently, at the time, the NEA was assured that districts would be discouraged from instituting mass teacher transfers (a controversial issue) to comply with the law. So one interpretation is that while the NEA was supportive of including teacher salaries in that part of the law six years ago, it’s now at least concerned about doing essentially the same thing when calculating whether districts are complying with supplement-not-supplant.

Weingarten, meanwhile, said the proposal was counterproductive and pursued something Congress declined to address when it passed ESSA.

The Story So Far

Wednesday’s hearing was the latest chapter in an ongoing feud pitting Alexander, Rep. John Kline (a Minnesota Republican and chairman of the House education committee), and many state and district leaders against Secretary of Education John B. King Jr., several civil rights organizations, Senate Democrats, and others.

Just yesterday, Alexander and Kline, citing “serious concerns” about the negotiated rulemaking effort that tackled the spending issue, demanded that the Education Department provide details about how it approached the process. The negotiating committee tried but ultimately failed to draft regulations for supplement-not-supplant in ESSA. And Alexander’s threatened to overturn any such issued regulation through the federal appropriations process, among other means of opposition.

Meanwhile, King held his own meeting on Tuesday with reporters stating his department was committed to coming up with ESSA rules for supplement-not-supplant that would create greater equity for disadvantaged students, regardless of GOP lawmakers’ objections.

This fight has been going on ever since the department unveiled proposed language in March that would have required districts to show that state and local per-pupil spending in Title I schools was at least equal to the average of that in non-Title I schools. In negotiations, the department proposed various changes to the regulations, but did not alter that core per-pupil spending requirement. Alexander quickly (at least in Washington time) called King on the carpet and accused him of overstepping his authority, a charge King denied.

The basic nature of the debate has not changed much since then, although on Tuesday King did say the funding regulations he wanted would help uphold the civil rights legacy of the 1954 Brown v. Board of Education ruling, as well as the original Elementary and Education Education Act, which was passed in 1965.

File photos of Sen. Lamar Alexander and Secretary of Education John B. King Jr.

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