Did you put money on federal funding regulations becoming one of the most controversial elements of the Every Student Succeeds Act? If so, congrats: We hope you got a nice payout. But either way, here’s an update for you on where things stand with these regulations, a draft of which will probably be released by the U.S. Department of Education pretty soon for public comment.

The funding rule in question deals with the ESSA requirement that federal funding supplement, and not supplant, state and local funding.

Earlier suggestions from the Education Department would have required, among other things, that state and local per-pupil spending in schools with high shares of low-income students (Title I schools) be at least equal to the average spending figure in schools with relatively wealthy students (non-Title I schools).

• Civil rights groups, among others, like that idea. They say it ensures districts are following the law. And they argue it would ensure greater equity between schools in the same district, which they think is a major problem.
• District advocates and Republican lawmakers, among others, dislike that idea. They say the department doesn’t have the power to require this. And they argue this plan could lead to bad outcomes for low-income students and district management.

Perhaps in part because of that newfound attention, three rounds of negotiations failed to produce a breakthrough on this issue. The department was then left to come up with its own rule. And the department hasn’t really shown signs that it will back away from the idea that state and local spending between the two types of schools should be equal on a per-pupil basis.

However, the department’s ideas evolved over the course of those earlier negotiations, even though the talks eventually stalled out. Let’s take a look at that evolution, as well as thoughts from observers and other lingering issues and questions.

How the Department’s Positions Evolved

The department didn’t back away from the core spending requirement I highlighted above. But it did alter its suggestions in some ways during negotiations. Here are a few of those changes:

• One of the more notable changes was language the department added to the draft before the third and final negotiating session (see the second paragraph in red on page 6). Essentially, the language was designed to give districts incentives not to simply cluster a large share of disadvantaged students into a single school. That’s one concern critics of the draft spending rule have highlighted. The language on this point, drafted before the third session started, included students with disabilities and English-language learners, but at the start of the session, the department offered additional language referencing low-income students.
• The department also added language designed to give districts more flexibility in terms of timing. If a district could not meet that per-pupil spending requirement between low- and high-poverty schools, it would not be flagged as out of compliance by the feds, unless it had also previously failed to meet that requirement once in the preceding three years.
• Initially, the department proposed a requirement that district spending would also have to be sufficient to provide the “basic educational program” as defined by the state. But the department subsequently removed this language.

But in discussing that core per-pupil spending approach advocated by his department, U.S. Secretary of Education John B. King Jr. has repeatedly emphasized that districts will not have to focus on forcibly transferring many experienced (and well-paid) teachers in order to comply with the proposed per-pupil spending rule.

He’s said that districts could add a variety of new programs to Title I schools in order to provide more resources to Title I schools, like early-education programs and new school counselors.

‘A Fair and Equitable Education’

Supporters of the department’s views expressed during the negotiations say the plan will be an important step forward in helping several groups of students, from children of color to those with disabilities and English-language learners. Opposition from various quarters essentially is a distraction from that crucial issue, said Kristen Clarke, the president and executive director of the national Lawyers’ Committee for Civil Rights Under Law. And she views arguments to the contrary are ultimately a distraction from that core issue.

“I think it’s making it more difficult for the Department of Education to do its job, which is to make sure that all children are given the opportunity to receive a fair and equitable education,” Clarke told me in an interview. (She spoke alongside King during a reporter’s roundtable earlier this year about equitable educational resources.)

Clarke and others have linked resource inequities between poor and rich schools within districts to a broader debate about the extent to which schools are increasingly polarized in terms of economics and race. And she said the new regulations could be useful leverage in reversing that trend.

“Clarity is always a helpful tool when we are talking about the expenditure of significant federal dollars. The new regulations provide just that,” she said, referring to the proposal from the department.

In an op-ed last week for The Hill newspaper, Marc Morial, the president and CEO of the National Urban League, made similar points. He highlighted a 2011 report from the department indicating that over 40 percent of Title I schools get less money than non-Title I schools located in the same district.

“It’s simple. Districts should fund their schools fairly, and in return the federal government will provide additional resources to the schools serving low-income and vulnerable students,” Morial wrote.

Skepticism Remains

But as I noted above, there’s plenty of opposition to this approach, despite the arguments from civil rights advocates and the adjustments made during negotiations. At the top of the list is Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee.

As we’ve reported several times, in Alexander’s view, the department is violating a separate part of ESSA in its attempt to equalize spending between schools, by effectively requiring actual teacher salaries be used in the regulations for requiring federal dollars to supplant state and local aid.

If the department enshrines the per-pupil spending proposal in its final ESSA regulations, Alexander has threatened to use his legislative powers to try to overturn it.

I mentioned previously that some policy analysts believe that the regulations, however well intentioned, could have bad consequences for poor students. That’s an argument Nora Gordon, an associate professor at Georgetown University who studies education funding, has made repeatedly.

• She’s said, for example, that although the department has said intradistrict spending between rich and poor schools could be brought into greater balance through a number of new programs at Title I schools, forced teacher transfers are the only way many districts could really realistically meet the department’s proposed per-pupil spending rule. That’s because many of them wouldn’t be able to obtain additional state and local money to spend. (In case you were wondering, teachers’ unions dislike the prospect of using actual teacher salaries in funding regulations and the forced transfers that could result, because of how that approach could interfere with local, collectively bargained teacher contracts.)
• The quality of teachers at Title I schools might actually go down if the such a proposal goes into effect, according to Gordon.
• And efforts to integrate schools racially and economically could also be hurt by the proposal, she said.

“All of those things, like pre-K, after-school, summer school, cost money,” Gordon said of the ways the department has said districts could provide more to Title I schools and therefore “level up” their spending. “And for many districts, it’s going to be a zero-sum game. So they need to get that money out of their non-Title I schools. Most of their money is in teachers.”

Do Experienced Teachers Cluster in Low-Poverty Schools?

There’s also skepticism about the extent to which more experienced teachers really do tend to cluster in low-poverty schools.

A study released last week by researchers Mark Dynarski and Kirsten Kainz for the Brookings Institution, using data from federal sources, found that when certain variables are accounted for, "[a]n increase in the poverty rate of 10 percentage points increased teacher spending per student by about $30.” And here’s what they found about teacher experience and its connection to low- and high-poverty schools in Wisconsin:

(The authors state that a value of 5.6 for “highest degree earned” means “the average teacher has a master’s degree and some teachers have higher degrees.”)

“From our empirical perspective, the debate is much ado about nothing—the typical district already spends about the same on teachers in schools that are and are not eligible for Title I,” Dynarski and Kainz write.

It’s worth noting that their study focuses on teacher-pay equity, known in Beltway lingo as “comparability.” However, as I noted above, at least in legal terms, the regulations under discussion technically deal with supplement-not-supplant, a separate part of ESSA.

Bonus: So just how much federal money for disadvantaged students is at stake for each state, per student? Check out the state-by-state allocation of Title I money per eligible student for fiscal 2016, via the National Center for Education Statistics, in the chart below: