Organizations, Senators Weigh in on Supplement, not Supplant Draft

As the deadline for filing comments on the proposed supplement, not supplant regulations pursuant to the Every Student Succeeds Act (ESSA) and issued by the U.S. Department of Education (ED) draws to a close, a number of national organizations have released their comments on the draft.


The Council of Chief State School Officers (CCSSO) has proposed its own version of the regulations.  Under CCSSO’s proposal, districts would not have to choose from one of four methodologies for compliance.  Instead, districts would have to make public their means of distributing the funding, as well as show that they are actually allocating funds according to that methodology.  However, they would not be required to distribute funds to schools according to Title I status.


CCSSO also identifies some issues with ED’s proposed methodologies.  The weighted student formula option, it says, is defined too narrowly for even those States that currently use a similar formula; the combined personnel and non-personnel expenditure method is too vague and raises more questions than it answers – for example, how to account for capital expenditures; and the option to equalize spending is also overly vague in defining which students should be targeted.  While ED’s proposal offers States the option of creating their own methodology for compliance, CCSSO says that would present too much of a burden for State departments of education.


AASA, the School Superintendents Association, also submitted comments expressing concern about the tenor of the proposed regulations.  The provision, AASA wrote, “should not be an opportunity for USED to exert unprecedented influence over the more than 90 percent of K-12 funding generated by state and local districts.”  The organization highlighted a number of negative consequences of the proposed rule, including last-minute reshuffling of staff, cutting programs that have cost variability because of the lack of ability to plan, and undermining support for future levies of bonds.


Like their colleagues, members of the National Title I Association say the proposed regulations go too far in directing how districts spend non-federal funds.  They also call the proposed methodologies overly restrictive and say they do not take into account local educational agency (LEA) needs, especially physical maintenance of school buildings.  In addition, the Association expresses concern about the potential impact on teacher assignments, saying ED strays too close to amending the comparability requirement through regulation.  In their comments, the group suggests that ED adopt its proposed methodologies as “best practices” and create an exception for capital expenditures and LEA teacher assignments in order to ensure flexibility.


Adding to the chorus, late this week a bipartisan group of 10 Senators sent a letter to President Obama asking him to rein in Secretary of Education John King, saying that ED is overreaching into matters that Congress intended to be the province of States and school districts.  The letter, signed by Senate Committee Chairman Lamar Alexander (R-TN) and several colleagues urges the President to “[m]ake certain that the Department of Education regulations stay within the statutory text.”


Notably absent from the letter is the signature of Patty Murray (D-WA), the top Democrat on the Senate Committee with jurisdiction over education and a key architect of ESSA.  In a statement provided to the Washington Post, Murray said that Congress “delicately worked to develop a balanced law that increased state and local flexibility when it comes to decision-making on how to run education systems, while also including federal guardrails to ensure that all children have access to high-quality education” but that the proposed regulations are “within the spirit of ESSA and the congressional intent.”


There are nearly 2,000 comments on the proposed regulation as of this date; ED has said previously that it wants to publish final regulations before the end of the calendar year.


CCSSO’s comments are available herecomments from AASA are here.  Comments from the National Title I Association are available through the Federal Register here.  The Senators’ letter on the regulations is here.


Resources: Emma Brown, “Bipartisan group of senators asks Obama to rein in Education Department proposals,” Washington Post, November 3, 2016.

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.