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Sen. Alexander to John King: Rethink Your Draft ESSA Spending Rules, Or Else



The federal requirement that federal dollars supplement state and local spending on education is proving to be one of the thorniest issues under the Every Student Succeeds Act.

In a testy Senate education committee hearing Tuesday, Sen. Lamar Alexander, R-Tenn., told Secretary of Education John B. King Jr. that he believed the U.S. Department of Education's proposal for regulating that spending requirement violates the language and spirit of ESSA. 

"Not only is what you're doing against the law, the way you're trying to do it is against another provision in the law," Alexander told King in his opening remarks.

And Alexander said he'd use every power available to him, including the federal appropriations process, to overrule the regulations King's department comes up with. He also said he'd encourage a lawsuit against the Education Department if it does not reconsider its proposed language. 

But King denied that his department was overstepping its authority. He said the agency is merely trying to ensure that districts are using an appropriate approach to following federal requirements for accessing federal funds.

"That methodology should ensure that at least as much in state and local spending is taking place in the Title I schools as in the average of non-Title I schools," King told Alexander.

Let's review the current status of supplement-not-supplant. It's designed to make sure that federal money earmarked for students from low-income backgrounds doesn't backfill what should be taken care of by state and local funding. A separate and also tricky funding requirement in ESSA, called comparability, wasn't changed in the new law, but it requires comparable spending between schools with large shares of disadvantaged students (Title I schools) and non-Title I schools. The requirement leaves out, however, whether teachers in both types of schools are actually being paid comparable real-life salaries, as long as they are on the same salary schedule. 

Last week, negotiators sharply disagreed over the department's draft regulations governing supplement-not-supplant. The proposed rule says districts can take various approaches in showing how federal funds are truly supplementing state and local school aid, provided that per-pupil spending in Title I was at least equal to the average per-pupil spending level in non-Title I schools.

Many, but not all negotiators expressed concern that the proposed regulation would essentially mandate equal spending between the two types of schools, force teacher transfers to equalize spending on salaries between schools, and significantly disrupt how districts allocate money and resources. They argued that in essence, the department was improperly trying to alter how ESSA deals with comparability through supplement-not-supplant.

But civil rights advocates and others argued that only districts violating supplement-not-supplant would actually run afoul of the department's proposed language. 

That's the prologue that led to the big disagreement between Alexander and King on Monday.

Alexander made it clear in his opening statement that the proposed regulations directly contradict ESSA's prohibitions regarding the Education Department's power and improperly encroach on districts' authority. He stressed that Congress considered changing the comparability requirement, declined to do so, but that King and his staffers were now going ahead anyway.

"We're smart enough to write a law in plain English," Alexander told King in an early exchange—at one point he called King's defense of the proposed regulations "ridiculous."

Here's a reminder: If the negotiators cannot come to a consensus on supplement-not-supplant regulations, the department can proceed without them and write regulations on their own. But Congress can review them. And more importantly, it's possible that lawmakers could use the appropriations process to overturn regulations previously adopted by the department—that's what Alexander stressed early in the hearing. (How such a move would impact states developing plans to meet the department's ESSA regulations is unclear at the moment.)

If the department persisted with moving ahead with the regulations, Alexander said to King, "You're going to come up against a coalition that's as broad as anything we've had in education."

Groups representing state school chiefs, school administrators, and unions oppose the department's draft spending language.

But King said that the regulations would uphold the intent of supplement-not-supplant, while also allowing districts a variety of avenues to provide equitable spending between schools by adding things like advanced coursework and preschool. 

"We should try to do what we can to assure the principle of supplement not supplant" is followed, King told lawmakers, adding that districts wouldn't be forced into one narrow response to comply with the proposed regulations on supplement-not-supplant. "It doesn't require teacher transfers." 

In his defense of the draft language, King repeatedly stressed that ESSA is fundamentally a civil rights law designed to protect the neediest students and provide them with more resources and opportunities. 

UPDATE: Alexander reiterated his view in a statement released on Tuesday that the department is "ignoring the law." But several Democratic senators did side with King during the hearing, and like King stressed the civil rights components of ESSA.

Sen. Patty Murray, D-Wash. and the committee's ranking member, for example, noted that Congress deliberately wanted supplement-not-supplant to go through the negotiated-rulemaking process: "We need to make sure that these federal dollars continue to support and augment state and local dollars, and don't replace them."

And Sen. Elizabeth Warren, D-Mass., said the idea of a strong regulatory framework for ESSA was key for her and many of her colleagues, as well as for groups representing various vulnerable student populations.

"I voted for this law on the explicit agreement that the Department of Education would enforce its accountability provisions through meaningful regulations," she said.

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