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Groups to Ed. Department: Don't Go Too Far in Regulating Spending Requirements

Attention U.S. Secretary of Education John B. King Jr. and company: Don't go overboard in attaching a bunch of new federal definitions and requirements to regulations for the Every Student Succeeds Act, including when it comes to supplement-not-supplant.

That's the message from a group of associations representing teachers, state chiefs, principals, school boards members, superintendents and more in a letter sent to the King Monday.

Some background: ESSA makes a change to supplement-not-supplant aimed at giving districts more flexibility to show that federal funds are an extra, not a replacement. Under the new law, local officials can come up with their own methodology for showing how they allocate state and local funding and therefore that federal money is indeed, a supplement. The department can fill in the blanks on that rule.

Right now, a panel of educators, experts, and advocates are currently hashing out regulations on supplement-not-supplant and assessment, through a process known as "negotiated rulemaking" or neg reg for short. If that process, which is supposed to conclude by the end of the month, fails, the department can write its own rules on those issues. The department put out draft regulations for supplement-not-supplant late week, for a team of negotiators to consider. (More on that below.)

The letter, which seems designed to influence the negotiators as much as the secretary, warns the department not to create any new definitions for supplement-not-supplant as it regulates on ESSA.

Here's a snippet from the letter:

Equity is important and is addressed throughout ESSA. States and local school districts have made equity a priority and will use implementation of this new law to elevate that work.

Definitions have already been established by Congress, shaped by significant input from broad, diverse constituencies, including educators, the civil rights community and the disability community. In the ESSA conference report, Congress "prohibit[s] any such regulation that would create new requirements inconsistent with or outside the scope of the law." New federal definitions through regulation could constitute new requirements. Additional context for any existing definitions in ESSA should be provided through technical assistance and guidance.

In its careful and deliberate work to craft ESSA, Congress accurately deemed that equity and flexibility can co-exist when states and school districts are afforded the ability to determine their own path to a high-quality education for all students.

As ED moves forward with its initial development of regulations to support successful ESSA implementation--especially as it relates to the 'supplement, not supplant' provision--we reiterate the importance of ensuring that regulations are crafted in a limited manner that supports, not restricts, Congress' explicit statutory intent.

Regulations and accompanying guidance should clarify how supplement, not supplant is separate and distinct from maintenance of effort and comparability, and steer clear of anything that would change or modify any of those provisions beyond the statutory changes already signed into law.

So what exactly are the groups saying here? Reading between the lines, it seems that groups are concerned that the draft regulations go too far in dictating exactly how school districts are supposed to meet the requirements of supplement-not-supplant.

The regulations, the groups seem to be saying, appear to dictate a test based on how much money schools are spending per kid in Title I and non-Title I schools. That, they seem to be saying, crosses the line to defining the methodology districts for showing that Title are an extra (i.e. supplemental) and not a replacement.

A summary of the proposed regulations states in part that districts can select their methodology, as long as it "[r]esults in the LEA spending an amount of State and local funds per pupil in each Title I school that is equal to or greater than the average amount spent per pupil in non-Title I schools." That emphasis on equitable per-pupil funding between schools is what seems to have the various groups concerned.

What's more, it's important to note the first part of the letter, in which the groups are making clear that they would prefer the department not define terms that ESSA leaves the door open for states to explain. Presumably, that could extend to other phrases under discussion in regulations, such as what it means for a student to have a "severe cognitive disability." 

The letter was signed by National Governors Association, the Council of Chief State School Officers, the National Education Association, the American Federation of Teachers, AASA the School Superintendents Association, the National Association of State Boards of Education, the National School Boards Association, the National Conference of State Legislatures, and the National Association of Elementary School Principals. 

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