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Report to Congress: Proposed Spending Rules Appear to Exceed ESSA Language

UPDATED

A report from the Congressional Research Service states that spending regulations proposed earlier this year by the U.S. Department of Education appear to be outside what the statutory language of the Every Student Succeeds Act allows.

The report from the Congressional Research Service, published May 5, deals with regulatory language governing "supplement-not-supplant," or SNS, a provision of ESSA that says federal Title I funds targeted at low-income students must be in addition to, and not take the place of, state and local spending on K-12. It concludes that  "a legal argument could be raised" that the Education Department's proposal is beyond the bounds of the law.

The fight over this spending provision has been perhaps the most high-profile dispute about the law since it was signed by President Barack Obama last December. A team of negotiators tasked with crafting regulatory language to govern supplement-not-supplant failed to agree on that language, leaving it to the Education Department to come up with regulations of its own.

So what's the CRS report talking about? Under language proposed by the Education Department to the negotiators last month for consideration, districts would be required to show that per-pupil spending in Title I schools (those with large shares of low-income students) is at least equal to average per-pupil spending levels in non-Title I schools.

State and district representatives vigorously objected, saying that this would create an unfair burden on schools, and that the department was trying a backdoor method to change another portion of the law, called "comparability," that requires spending between the two types of schools to be comparable. Those supporting the language, however, including representatives from civil rights groups, said it represented a strong test of whether districts were violating supplement-not-supplant. 

The report ultimately seemed to take the side of states and district negotiators on the issue of more-equalized per-pupil spending. 

"On its face, however, the plain language of the SNS provisions does not appear to require such a result," the report states. "Notably, the statutory language does not establish any type of standard or requirement regarding how to demonstrate that a Title I-A school receives all of the state and local funds it would have received in the absence of Title I-A funds."

The CRS report also appears to side with state and local K-12 leaders who argued that a variety of school budgeting methods would be unfairly barred from use, and that the forced use of teacher salaries in per-pupil spending calculations for supplement-not-supplant does not appear in ESSA. 

"These proposed regulations do not provide an exception related to consideration of staff salary differentials for years of employment. Thus, the proposed SNS regulations appear to effectively require [districts] to use actual teacher salaries for SNS purposes despite the fact that the ESSA did not address this matter." 

The department has not released a new set of proposed regulations for supplement-not-supplant for public comment. But Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee, has warned Secretary of Education John B. King Jr. that if the regulations look anything like the department's previous proposal, he'll try to overturn them through the federal budget process, and will encourage others to sue the department to stop them.

UPDATE: On Wednesday, Alexander took to the Senate floor and, citing the CRS report, blasted the department for "ignoring the law." 

The committee chairman said the regulations fly in the face of the language of the law, as well as the will of diverse groups that have backed ESSA. He said that if staffers at the department want to write the kind of rules they've proposed, they should resign and run for Congress instead. And he reiterated that he would seek to overturn the proposed regulations, through either federal appropriations process or the Congressional Review Act, if the department adopts them.

"This is an intolerable situation," Alexander said. 

There's a May 18 Senate education committee hearing scheduled, in which supplement-not-supplant is on the agenda. 

King, however, has defended the proposed regulations, saying they're a key part of the effort to ensure that federal funds for poor students are used as intended and create educational equity—and many Democratic senators have his back, as do several civil rights advocates.

We have asked the Education Department for comment about the CRS report, and we'll update this post if we hear back. 

UPDATE: The Education Department responded to the CRS report with the following statement, "The law is clear - Title I funds must be used to supplement state and local funds, and the Department is working to help states and districts meet this requirement. As the Department has been reminded by over 30 civil rights groups, 600 teachers, and 9 U.S. Senators, the entire purpose of Title I funds is to truly provide the additional resources necessary to ensure that students in high poverty schools have access to equitable educational opportunity. If schools are being shortchanged before the federal dollars arrive, then those dollars are not supplemental."

Read the full CRS report below:


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