Every Student Succeeds Act

New ESSA Spending Regulations Proposed

By Alyson Klein & Andrew Ujifusa — September 06, 2016 5 min read
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After months of criticism from Republican lawmakers, state chiefs, and teachers’ unions on its approach to spending rules for the Every Student Succeeds Act, the U.S. Department of Education last week released a new proposal that appears to give districts and states some additional flexibility when it comes to ensuring federal funds for low-income students don’t replace state and local dollars.

But, judging from early reaction, it is unlikely that the changes to proposed rules for the part of the law known as “supplement not supplant” will be enough to placate the sharpest critics of the department’s original approach, crafted as part of a “negotiated rulemaking” process this spring. Those critics include Sen. Lamar Alexander, R-Tenn., chairman of the Senate education committee and an ESSA architect, and his counterpart on the House side, Rep. John Kline, R-Minn.

The department’s original proposal would have required districts to demonstrate that state and local per-pupil spending in Title I schools, which have large shares of students from low-income backgrounds, be at least equal to the average of that spending in non-Title I schools. The new approach would provide some additional options to meet a similar goal.

Civil rights advocates have said both the initial proposal and the revamped version represent a long-overdue fix to a loophole in Title I rules with respect to teachers’ salaries, one of the biggest expenses on districts’ plates.

But Alexander said the department had overstepped its authority. He renewed a pledge, made earlier this spring, to block the rule from going into effect if it becomes final, using the congressional appropriations process, or other means.

‘Zero Authority’

Alexander said in a statement that U.S. Secretary of Education John B. King Jr. apparently thinks he’s a member of Congress and chairman of a “national school board” in addition to being education secretary.

“His proposed regulation would give Washington, D.C., control over state and local education dollars that it has never had before,” Alexander said. “Federal law gives him zero authority to do this. In fact, our new law specifically prohibits his doing this.”

But King said that intradistrict state and local funding gaps are inconsistent with the “civil rights history” that’s the source of the supplemental-money requirement.

“No single measure will erase generations of resource inequities, and there is much more work to do across states and districts to address additional resource inequities, but this is a concrete step forward to help level the playing field and ensure compliance with the law,” King said in a statement.

Debate Continues

Overall, the proposal, which has been highly anticipated for months, doesn’t seem to have shifted the political landscape on the debate over supplement-not-supplant. Superintendents, state chiefs, and others still say the department has put forth something unworkable.

Fine Tuning

The U.S. Department of Education sought to address concerns from educators about its original ideas for spending of Title I funding for disadvantaged students under the Every Student Succeeds Act by incorporating these changes into its most recent proposal on the issue:

  • Stating that nothing in it shall be construed to require forced teacher transfers
  • • Offering leeway on intradistrict spending disparities due to spending on students like English-language learners and those with disabilities, as well as on special schools

    • Allowing some flexibility for small fluctuations from year to year in a district’s budget

    • Giving small schools with enrollments of 100 or fewer at least some degree of flexibility from the draft rule

    Source: U.S. Department of Education

    But civil rights groups and ESSA’s Democratic sponsors—Sen. Patty Murray of Washington and Rep. Bobby Scott of Virginia—argue the new rule strikes the right balance in ensuring the poorest students get access to their fair share of resources, while giving local leaders the flexibility they need.

    The proposed rule still needs to go through a 60-day comment period before it can be finalized. It would give districts the following options to show compliance with the supplemental-money rule:

    • They could use a weighted student-funding formula. A formula in compliance with the proposal would put a priority on certain demographics associated with educational disadvantage, such as students from low-income backgrounds, English-language learers, and students with disabilities. It would also have to ensure that Title I schools receive all the actual funds they’re entitled to under the formula.

    • Districts could choose to distribute money using a formula based on a districtwide average of personnel and non-personnel expenditures. (Again, districts would have to ensure that Title I schools get all thefunding they’re entitled to under such a formula.)

    • They could rely on a state-developed compliance test. These tests would have to lead to a distribution of state and local aid to schools that would be as rigorous as the first two options listed above. Such state compliance tests would be peer-reviewed at the federal level.

    • Finally, as a safe harbor, districts could choose a methodology that results in their state and local per-pupil spending in Title I schools being at least close to the average of such spending in non-Title I schools. There’s a little flexibility built in here, because districts would still be considered in compliance if per-pupil spending for each Title I school were up to 5 percent less than the average spending figure in non-Title I schools.

    Importantly, under the proposal, the department apparently would no longer explicitly require that—no matter what compliance approach they use—districts’ per-pupil spending of state and local money in Title I schools is at least equal to the average of that in non-Title I schools, in order to comply with the supplemental-money rule. It would now be an option for districts, albeit one that the department would obviously look favorably on.

    This multiple-option approach might be considered similar to how the department approached the politically thorny issue of test-participation in ESSA accountability.

    In that case, the department laid out several consequences states could impose on schools with high opt-out rates, or the state could develop some plan of its own for the department to review.

    The department also says the proposed regulations would mean up to $2 billion in additional stateand local funding for high-poverty schools.

    Despite the changes, Republican lawmakers and advocates for state chiefs, superintendents, school board members, and teachers’ unions are unhappy with aspects of the proposal.

    Kline, for example, the House education committee chairman, called the proposal “unprecedented and unlawful” and said it would “unleash havoc on schools and their students.”

    ‘Unfunded Mandate’

    The president of the American Federation of Teachers, Randi Weingarten, said the draft rules represent an “unfunded mandate from Washington” that pushes districts to increase spending without showing them how to do so, or compelling any additional resources to help districts.

    And Chris Minnich, the executive director of the Council of Chief State School Officers, said that “in the department’s effort to ensure resources go to the students who need it the most, they have created a situation where the reverse is likely to occur in many places. We look forward to helping get this right before the rule becomes final.”

    But Wade Henderson, the president and CEO of the Leadership Conference on Civil and Human Rights, called the rule a “step in the right direction that brings us closer to a more just educational system.”

    A version of this article appeared in the September 07, 2016 edition of Education Week as Draft ESSA Funding Rules Unveiled


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