Supplanting rule undercuts ESSA flexibility

Supplanting rule undercuts ESSA flexibility

(District of Columbia) The Obama administration moved a step closer to final adoption of a controversial regulation governing the use of Title I money that would largely reimpose federal supplanting restrictions.

Prior to enactment of the Every Student Succeeds Act in December 2015, school administrators had to be mindful that money provided by Congress through the U.S. Department of Education was used to “supplement” existing programs and services already supported by state and local resources. For years, federal auditors would call into question use of Title I money, for instance, that “supplanted” state and local money.

While there are some powerful members of Congress who believe language in ESSA gives schools far more flexibility with federal Title I money, the Department of Education nonetheless outlined earlier this year a draft regulation that would largely retain the “supplement-not-supplant” rule.

That draft was approved last week by the White House Office of Management and Budget. It is expected that the administration will, within weeks, formally promulgate the proposed regulation and invite public comments. The department would be required to respond to the comments, but otherwise, the proposed regulation would then take effect.

The review period typically takes 60 days, but because the Obama administration will essentially be out of office shortly after Thanksgiving, there are rumors that federal officials may try to expedite the process.

As outraged as some members of Congress seem to be over the administration’s proposed supplanting rule, it is unlikely a challenge will be mounted before the new president takes over in January 2017, and equally unlikely that the rule would attract much Congressional attention, at least for a while.

Both Congress and the administration are in agreement that Section 1118(b) of the Elementary and Secondary Education Act, as amended by the ESSA, retains the general requirement that Title I funds supplement and not supplant state and local funds. What has changed, however, is authority the law has given to the Department of Education for testing whether districts are complying, at least as far as Title I is concerned.

Section 1118(b) also says that districts will not be required to identify and prove that a particular cost or service supported with Title I money is indeed supplemental. Instead, ESSA provides for a single test calling on districts to:

“[D]emonstrate that the methodology used to allocate State and local funds to each school receiving assistance under this part ensures that such school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under this part [Title I].”

The Department of Education, however, is separately emphasizing another section of the law that explains the purpose of Title I money is to “provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.”

With this section as the backdrop, the department has recrafted the supplanting rule to restrict the use of federal money to provide the additional educational resources and supports that at-risk students need to succeed, instead of simply making up for unfair shortfalls in state and local funding.

Thus, the proposed regulation that is due out soon, is expected to mandate a calculation to show that per-pupil spending in Title I schools—encompassing all sources—is equal to that being provided to non-Title I schools. More specifically, the federal test would be whether the method of distribution supports equality in spending.

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