The same day a government report found that racially and economically segregated schools are on the rise exactly 62 years after the Brown v. Board of Education decision, U.S. Secretary of Education John B. King Jr. reiterated his message that it’s essential that the new K-12 education law ensure students of color and those in poverty get additional and crucial academic resources through federal dollars.

In a meeting with reporters here at U.S. Department of Education headquarters on Tuesday, King said the department will look to ensure through robust regulations, that federal Title I aid to students from low-income backgrounds is truly supplemental. That’s part of a wonky but important provision of the new Every Student Succeeds Act called “supplement-not-supplant.” The regulations will be designed to address “serious funding inequities, not just between districts but within them” that continue in districts across the country, King told reporters.

“It was a civil rights law then and it is now,” said King, referring to the original Elementary and Secondary Education Act of 1965, of which ESSA (signed into law by President Barack Obama last December) is the latest version.

And as schools have become more “intensely segregated” in recent years, said Kristen Clarke, the president and executive director of the Lawyers Committee for Civil Rights Under Law (who was present at the meeting), black students are now six times more likely to attend high-poverty elementary schools than their white peers.

During the recent negotiated rulemaking for ESSA and in the aftermath of that process, the Education Department has been pushing for a supplement-not-supplant rule that would require districts to show that per-pupil spending in Title I schools is at least the same as the average of per-pupil spending in non-Title I (relatively wealthy) schools. The department, along with civil rights organizations, a group of Democratic senators, and others believe that the regulations proposed by the department during ESSA negotiated rulemaking uphold the true spirit of the law and Title I, which provides aid to students from disadvantaged backgrounds.

“We have failed to close the opportunity and achievement gap,” King said.

A panel of ESSA negotiators ultimately were unable to approve any proposed regulatory language on the provision, and now the Education Department is proceeding to write its own regulations. It’s quickly become one of the most controversial parts of actually making ESSA a reality, and the funding rule is going to come up again soon—more on that below.

To highlight his point, King singled out two public schools in New York City (his hometown), one with 77 percent of students in poverty and the other with 32 percent of students in poverty. The former, he said, received 29 percent less in state and local money than the latter. And he reiterated that there are a variety of ways districts could meet a proposed rule without resorting to mass teacher transfers between schools, a prospect that unsettles many district leaders as well as teachers’ unions. Those approaches could include efforts such as creating new prekindergarten programs and adding more school counselors.

Opposition to the Department

But the Education Department is in conflict with Republican members of Congress and others over the supplement-not-supplant issue.

For example, Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee, along with some state and district officials, believe the direction being contemplated by the Education Department would be burdensome to schools, go beyond what the language of ESSA allows, and might create unintended consequences that would harm many disadvantaged students. For example, some have raised the idea that if the department’s vision becomes a reality, districts might respond by clustering more students in poverty into a smaller number of their schools or just one schools, thereby increasing their isolation from their peers across the district—although the department has said it has already factored this into its thinking for supplement-not-supplant regulations.

Still, the broadside of attacks on the department over this issue continues. Alexander used a Congressional Research Service report released last week to argue on the U.S. Senate floor that the Education Department would be dramatically overstepping its bounds if in what it appears to be contemplating. And on Tuesday, Alexander co-wrote a letter with Rep. John Kline, R-Minn., the chairman of the House education committee, to the department expressing “serious concerns about the integrity of the negotiated rulemaking process” for supplement-not-supplant. They’ve asked for a variety of documentation for exactly how the department has approached ESSA negotiated rulemaking.

“The law is very clear and specific about the department’s role in its implementation. That’s why it’s very troubling to see the department taking steps that are contrary to both the letter and intent of the law. The bipartisan reforms in the law are too important to be commandeered for the department’s own partisan agenda,” Kline also said in a statement.

There is a meeting of the Senate education committee hearing scheduled for Wednesday to discuss ESSA implementation, and it’s pretty safe to expect that supplement-not-supplant will be among the prominent topics discussed.