Controversial Supplement, Not Supplant Regulations Withdrawn

In an announcement made late Wednesday afternoon, the U.S. Department of Education (ED) said that it was withdrawing a proposed regulation regarding a provision of the Every Student Succeeds Act known as “supplement, not supplant.”  The proposed rule, released last summer, set out four methods for ensuring that districts were spending roughly the same amount of money in schools that were serving large numbers of at-risk students as they were in more affluent schools.  While civil rights advocates applauded the move as a strong push toward equity, States and districts expressed concern with whether they would be able to comply with the regulations at all.  There were also worries about potential unintended consequences, including a need to transfer teachers between schools or an inability to make capital improvements to schools that do not receive federal Title I dollars.  Others complained that the inclusion of teacher salaries in these calculations went well beyond the intended scope of the provision in law, and ran contrary to Congressional intent.


Despite these concerns, ED said that it was committed to finalizing the regulations before the end of last year.  But with only days left before the new administration began, ED’s spokeswoman Dorie Nolt said the agency “ultimately did not have time to publish a strong final regulation that lives up to the promise of the law.”


Still, there may be some strategy at play.  The regulations were named by a number of lawmakers – including Senator Alexander (R-TN) and Representative Foxx (R-NC) – as a prime target for nullification through the Congressional Review Act (CRA).  If a regulation is rescinded or nullified through the CRA, the agency that issued it is prohibited from ever issuing “substantially similar” regulations on the same legislation.  What that means, exactly, has not been tested.  But if the supplement, not supplant regulations were finalized and then nullified, ED would likely be prohibited from issuing any kind of substantive regulations unless the underlying statutory language were significantly modified.  That could hamstring ED’s enforcement of this position for a decade or more.  By withdrawing the rule, ED leaves the door open to this administration or the next to issue any kind of regulations it wishes on this provision.


Lawmakers called the withdrawal of the regulation a “significant victory.”  In a press release, House Education and the Workforce Committee Chairwoman Virginia Foxx said that the “regulatory scheme would have violated the law and unleashed serious harm on some of our nation’s poorest schools and communities.  While this is encouraging news, we should never have faced the threat of this misguided regulatory proposal.”


What this means for States and districts is more uncertainty.  There are no requirements to change spending patterns for 2017-18 at this point, but the incoming administration could always issue guidance or interim regulations that could impact the upcoming school year.


Alyson Klein, “Education Department Withdraws Controversial ESSA Spending Proposal,” Education Week: Politics K-12, January 18, 2017.

About the Author

Julia Martin is an attorney with the Washington, DC law firm of Brustein & Manasevit, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Title I Association.