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As Congress Rewrites NCLB, Arne Duncan Highlights 'Title I Comparability Loophole'

Can a rewrite of the No Child Left Behind Act close the so-called "Title I comparability loophole"? 

Short answer: It's politically a really tough sell. But it looks like U.S. Secretary of Education Arne Duncan is going to try anyway. He is doing a press call later today with Marc Morial, the president of the National Urban League, to highlight how the comparability loophole impacts poor and minority kids. 

Long answer: First off, what exactly is the Title I comparability loophole?

The Elementary and Secondary Education Act, of which the NCLB law is the most current edition, requires that states and districts ensure they are providing "comparable" (essentially the same) level of services to both Title I schools (which serve disadvantaged students) and wealthier schools using their own state and local money, before they can tap federal Title I funding (which is supposed to be extra money aimed at the poorest students.) 

The "loophole" part? When it comes to the biggest expenditure (teachers' salaries), states and districts have some wiggle room. As long as all the schools in a district are on the same salary schedule—which usually means that teachers with the same level of experience and education get the same wages—and as long as the high-poverty schools have the same proprotion of teachers as the low-poverty schools, then the staffs are considered "comparable." That's true even if a high poverty Title I school has a high number of lower-paid, novice teachers, and a wealthier school that doesn't qualify for Title I has a high percentage of experienced educators who make significantly more money. And there are other problems with ESEA's comparability provision, civil rights advocates say. 

About 4.5 million students attend inequitably funded Title I schools, according to a report on the loophole produced by the Center for American Progress, a left-leaning think tank, earlier this week. And those schools get about $1,200 less per student, on average, than wealthier schools in their districts, CAP found. 

So what's the most recent pitch? Duncan and Morial will highlight U.S. Department of Education data from the 2011-12 school year that shows which states are shortchanging poor and minority kids the most. (More on what this state level data has to do with the comparability loophole below.)

So which states have the biggest disparities? They include Alabama, Arizona, Connecticut, Delaware, Idaho, Illinois, Kentucky, Maine, Maryland, Michigan, Missouri, Montana, Nevada, New York, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wyoming.

The biggest offender on that list is Pennsylvania, where high-poverty districts spend 33 percent less than lower-poverty districts. High-poverty districts in Vermont spend 18 percent less than lower poverty districts, and high-poverty districts in Illinois, Missouri, and Virginia spend 17 percent less than the lower-poverty districts.  

What's more, districts serving high proportions of minority kids spend markedly less than other districts in Alabama, Arizona, Colorado, Connecticut, Florida, Idaho, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Pennsylvania, Rhode Island,  South Dakota, Texas, West Virginia, and Wyoming.

Nevada has the most persistent problem in that grouping. High-minority districts there spend 30 percent less per student than districts serving a lower percentage of minorities. And in Nebraska, high-minority districts spend 17 percent less per student than lower-minority districts. In Arizona, higher-minority districts spend 15 percent less than lower-minority districts. 

That's not to say the problem is persistent everywhere. In fact, high-poverty districts in Indiana, Minnesota, New Jersey, and South Dakota spend more than the lower-poverty districts. 

True edu-budget-geeks may be confused here. After all, the comparability loophole only effects intradistrict funding (meaning how much one school in a district spends compared to another). And these state level numbers compare different districts in the same state. So why use these particular numbers if you're trying to make the argument that closing the comparability loophole is good policy?

The department, however, contends that leaving the loophole open compounds the problem of fiscal inequality, so closing it will only help the poor and minority kids who are losing out, even if it won't totally solve the problem they're illustrating with the data. (State level inequities are mostly the result of state funding formulas, and there's not much the feds can really do about those.)

Comparability isn't a brand new issue. In fact, Washington policy wonks probably remember that CAP put out a similar report, also on comparability, back in 2008. And even before that, fixing comparability was a top issue for civil rights groups, including the Education Trust, which advocates for poor and minority kids. 

So why is closing this loophole so hard? Generally, advocates for teachers and administrators have qualms about closing the loophole. They worry it could lead to forced teacher transfers and just be a general red-tape headache.

And there doesn't seem to be much momentum on the issue this time around, at least on Capitol Hill. Language to close the loophole didn't make it into the House bill to rewrite the NCLB law that was pulled from floor consideration earlier this year. 

And it's not part of a discussion draft on NCLB renewal written by Sen. Lamar Alexander, R-Tenn.,  the chairman of the education committee, who is now trying to negotiate a bipartisan bill with Sen. Patty Murray, D-Wash., the top Democrat on the Senate education committee. In fact, it's a sure bet that the CAP report and the administration's pitch this morning are designed to influence that pending bipartisan Senate legislation. 

But getting language closing the loophole into NCLB rewrite bills isn't going to be a slam dunk, especially in a GOP-controlled Congress.

Back in 2011, Sen. Michael Bennet, D-Colo., who is still on the education committee, successfully fought for an amendment to an NCLB rewrite bill that would have closed the loophole, but he added a key cavaet saying that teachers wouldn't be forced to change schools. (That addition won the provision support from the National Education Association.)

And in 2007, language closing the comparability loophole met with a firestorm of criticism when it was included in a draft bill rewriting the NCLB introduced by Reps. George Miller, D-Calif., and Howard P. "Buck" McKeon, R-Calif, the chairman and ranking member, respectively, of the House education committee. The draft never advanced very far. 

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