October 27, 2021
U.S. Department of Education
Attn: Britt Jung
400 Maryland Avenue SW
Washington, DC 20202
Dear Ms. Jung,
The National Association of ESEA State Program Administrators (NAESPA) appreciates the opportunity to comment on the Proposed Requirements for the American Rescue Plan Act Maintenance of Equity requirement. We understand that administering a program like the Elementary and Secondary School Emergency Relief Fund has been a massive undertaking at the federal level as well as the State and local level, and believe it has offered significant fiscal relief to States, districts, and schools to address the urgent needs of our students. To be sure, we are more-than-grateful for these significant and timely financial resources. However, we have some concerns about the proposed requirements from the U.S. Department of Education (ED), as outlined below.
1. Significant Administrative Burden
The proposed rule places the full burden of soliciting and collecting data, reviewing data for integrity, making determinations about compliance, and publishing and maintaining public databases on the State educational agency (SEA). SEAs are already struggling to meet the administrative requirement of the new law, and this new responsibility does not come with increased administrative funds. This means that existing staff will have to perform these new duties in addition to their regular responsibilities (and recently added duties administering stimulus funds). The proposed rule also provides no information about consequences or penalties for noncompliance, leaving the State with little leverage to demand data from districts which are also drowning in new administrative responsibilities and requests for information.
Furthermore, we believe the regulatory burden estimate provided of 8.5 hours is a significant underestimate. In most cases, States will need to build a webform or other database tool to collect data. For larger States, which will have thousands of schools identified as “high-poverty” under the statute, the amount of data will be too large to fit in an Excel or Google spreadsheet and will require the use of a database tool. Communication and reminders regarding the information will need to be sent to each local educational agency (LEA), and technical assistance will need to be offered with respect to which schools must be included, how to calculate allocations, what enrollment data to use, and how to calculate staffing levels (for example, whether to include shared staff, federally funded staff, budgeted staff versus actual, etc.). Once data is collected, it will need to be reviewed and checked for integrity before a determination is made with respect to compliance with Maintenance of Equity for each individual school. Then this information will need to be exported and posted online. Depending on the State, the crafting of the database and forms alone could take 6-8 hours, with total time for administration being many multiples of ED’s estimate. Additional burden would be created by the need to compile and submit data at the district level.
2. No Time for Data Integrity
The proposed timeline for posting – by December 31 of each year – allows little to no time to ensure that data is accurate. Schools and districts are only finalizing attendance counts in October, meaning they would have a month or less to compile and submit data to the State in order to ensure the State can present and post the data accordingly. In fact, some districts take a snapshot in October and finalize after the first of the year. This provides no opportunity for the State to determine that the data is accurate, to identify any inconsistencies with other data submitted by the LEA for other purposes, or check for methodology before making a compliance determination.
As State program administrators, we want to ensure that any determinations we make are accurate and reflect the best available data. In order to ensure accuracy and consistency, we need additional time to validate submitted data. We believe that we will have enough time to do this if required to post data no later than April 15th of the applicable school year.
Because SEAs are instructed in ED guidance not to withhold funds while compliance is being determined,* there is no reason to rush the posting of data – with monetary and public perception implications for districts – before we can ensure that it is complete and correct.
3. Lost Focus on Intentional Efforts to Drive Equity
NAESPA recognizes that ED is acting on a Congressional mandate to enforce a statutory requirement. However, we express our concern that too much emphasis is being placed on whether resources at a defined set of schools meet an arbitrary test – with many exemptions and waivers. Overreliance on these data points risks drawing focus away from real, valid, and long-standing efforts made by those districts to ensure equity across the whole of their school systems, not merely the top quartile, and targeting students with greatest need no matter what school they attend.
With the help of SEAs and ED, districts are already working carefully and intentionally to spend their federal dollars, including those allocated under the Elementary and Secondary School Emergency Relief Fund. We want to be sure that we are building on those efforts and making them sustainable.
Finally, reliance on these numbers fails to recognize some of the current challenges faced by LEAs and schools. For example, publishing data on full-time equivalent staff may not take into account the fact that some of those staff serve high-need students exclusively, or are contracted under this or other federal programs to meet urgent pandemic-related needs. To be clear, that staffing data only reflects the staff that a district is able to hire, verify, train, and on-board, not the number of positions that it recognizes are needed or that it budgets for. There are current shortages of educational staff at all levels and specialties, ranging from bus drivers to school food service staff to teachers and substitutes. In an already competitive hiring environment, we are loathe to penalize schools and districts that have fewer resources to offer teachers or who simply have more vacancies to fill.
We look forward to working with you and other staff at ED to address these concerns. We recognize the importance of the work you are doing and appreciate the continued and productive lines of communication between your agency and our member States.
Jack O’Connor, President
National Association of ESEA State Program Administrators (NAESPA)
*ED’s Maintenance of Equity Frequently Asked Questions document from August of 2021 states: “It is important to emphasize that no State should delay awarding and allocating ARP ESSER funds to its LEAs until local MOEquity data are available for high-poverty schools. To the contrary, ARP ESSER 5 funds should be allocated to LEAs expeditiously as their availability is essential to the broader goal of advancing educational equity.”