On August 31 the U.S. Department of Education (ED) released proposed regulations to implement the supplement-not-supplant requirement in Title I of the Every Student Succeeds Act (ESSA). The rules were quickly denounced by top Republicans and will likely set the stage for a battle over implementing the new federal education law in the waning days of the Obama administration.

The ESSA law says that when districts spend federal funds under Title I they must supplement, and may not supplant, state and local funds. Claiming that many Title I schools are shortchanged every year, and the federal funds spent in Title I schools are often used make up some or all of that shortfall, instead of providing the additional resources needed in high poverty schools, ED says the proposed rule out earlier this week “clarifies for school districts options for how to demonstrate compliance with the supplement, not supplant provision. The options include:

• A weighted student funding formula that provides additional resources for students with characteristics associated with educational disadvantage, such as students in poverty, English learners, and students with disabilities, and ensures that each Title I schools receives all of the actual funds to which it is entitled under that system;
• A formula that allocates resources including staff positions and non-personnel resources directly to schools, and that ensures each Title I school gets all of the funding it is entitled to, as measured by the sum of (1) the number of personnel in the school multiplied by the district’s average salaries for each staff category,  and (2)  the number of students in the school multiplied by the district’s average per-pupil expenditures for non-personnel resources;
• An alternative, funds-based test developed by the state and approved by a panel of expert peer reviewers that is as rigorous as the above two options; or
• A methodology selected by the district that ensures the per-pupil funding in each Title I school is at least as much as the average per-pupil funding in non-Title I schools within the district.

The Republican architects of ESSA reacted immediately with strong language about the proposed rule.

Rep. John Kline (R-MN), chairman of the House Committee on Education and the Workforce, said in a statement:

“The Department of Education is threatening to unilaterally impose a multi-billion dollar regulatory tax on our nation’s schools. This punitive policy will unleash havoc on schools and their students at a time when education leaders should be focused on helping children succeed in the classroom. America’s poorest neighborhoods will be hit the hardest as communities are forced to relocate teachers, raise taxes, or both. Any supposed “flexibility” is really a limited set of bad choices dictated by the secretary of education. This is not at all what Congress intended, and those who helped enact this law cannot honestly believe differently.

What the secretary is proposing is unprecedented and unlawful. The only way to make this right is to scrap this convoluted regulatory scheme immediately. Members of Congress came together to pass bipartisan reforms that are designed to help every child receive an excellent education, and we will not allow this administration to undermine these reforms with its own extreme, partisan agenda.”

U.S. Senator Lamar Alexander (R-TN), chair of the Senate Health, Education, Labor and Pensions Committee, also called the rule “unlawful” and said in a statement, “the U.S. Education Secretary must think he is the U.S. Congress as well as Chairman of a National School Board . . . The rule would regulate the way states and school districts spend nearly all state and local tax dollars on schools in order to receive federal Title I dollars.  These Title I dollars are only about 3 percent of total national spending on schools.”  He predicted that it would “upend state and local education funding and collective bargaining agreements in many states. If anything resembling it becomes final, I will do everything within my power to overturn it.”

The Council of Chief State Officers claimed the proposed rule was not consistent with the law, stating “Schools would be forced to move resources around at the last minute each year to try to meet a federal mandate, rather than doing what is in the best interest of students.”

The two teachers unions, concerned about teacher salaries and collective bargaining, are also not happy with the proposal.  AFT called the proposed regulations “an unfunded mandate from Washington’” and the NEA said the proposed regulatory language “does not eliminate the practical limitations and unintended consequences that may arise during implementation.”

Across the aisle, Congressional Democrats praised the draft rule. In a joint statement, Senator Patty Murray (D-WA), Ranking Member of the Senate HELP Committee on Health, Education, Labor, and Pensions, and Representative Bobby Scott (D-VA), Ranking Member of the House Education Committee, said  “This proposal will ensure Title I dollars are used to supplement state and local investment in public education for high-need students.  For too long, the process of allocating public funds to support public education has lacked transparency and often resulted in underfunding high-poverty schools . . . With this proposal, the Department has fulfilled its responsibility to set clear expectations for compliance with statutory requirements through regulation. In addition, we believe this proposal honors Congressional intent to empower local leaders with greater latitude in the expenditure of Title I funds to support high-need students.” 

And last but not least, ED Secretary John King, long an outspoken champion of equity in the law, defended the proposed rule, stating “For too long, the students who need the most have gotten the least. The inequities in state and local funding that we see between schools within districts are inconsistent not only with the words ‘supplement-not-supplant’ but with the civil rights history of that provision and with the changes Congress made to the law last year. 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.”  

Shaping up to be an interesting fall in Washington D.C.  Watch for updates in the next Legislative Update and read the draft rule here.

Jodi Peterson is Assistant Executive Director of Legislative Affairs for the National Science Teachers Association (NSTA) and Chair of the STEM Education Coalition. e-mail Peterson at jpeterson@nsta.org; follow her on Twitter at @stemedadvocate.

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