MIA: The ESSA’s “Supplement Not Supplant” Regulation

Written by: Dirk Zuschlag

Primary Source:  Green & Write, December 7, 2016

The Code of Federal Regulations (image courtesy of wikipedia commons)

The Code of Federal Regulations (image courtesy of wikipedia commons)

The Every Student Succeeds Act (ESSA), a reauthorization of the long-standing Elementary and Secondary Education Act (ESEA), became law in December 2015 with broad bipartisan and interest group support.  Since the law’s passage, the U.S. Department of Education (USDOE) has been occupied with the formal administrative rulemaking process necessary to the law’s full implementation during the 2017-18 school year. Recently, the USDOE has issued final rules concerning many provisions of the law, including its accountability provisions. Yet, the much-anticipated “supplement, not supplant” (SNS) regulation is missing in action. This “wonky fiscal rule” is supposed to ensure that educational agencies use federal dollars to enhance education services in impoverished areas, rather than to replace existing funding. Its fate shows how political conflict over federal K-12 education policy never truly ceases, even after the enactment of major legislation.

SNS and ESEA

Since the original ESEA was passed in 1965, the federal government has provided funding for schools serving economically disadvantaged students through Title I of the law. The goal was to provide supplemental aid to districts impacted by poverty.  However, over time, the federal government grew worried that districts would try to substitute the federal dollars for existing state and local funding, thus hampering the goal of ensuring educational equity.  As a result, ESEA reauthorizations since 1970 have required receiving districts to spend Title I money in addition to (supplementing), and not in place of (supplanting), other funding sources. Thus, to the extent that “ESSA builds on the ESEA’s legacy as a civil rights law,” its SNS provision represents a key component.

ESSA Section 1012 reformulates the SNS standard so that Title I funds shall be used “only to supplement the funds that would, in the absence of such Federal funds, be made available from State and local sources for the education of students participating in programs assisted under [Title I], and not to supplant such funds.” A local district demonstrates compliance by applying a “methodology.” But what methodologies are acceptable? Particularly since the ESSA specifically prohibits the Secretary of Education from prescribing a methodology, the rulemaking process was supposed to answer this key question.

SNS and ESSA

 The ESSA mandates a “negotiated rulemaking process,” where stakeholder representatives convene to collaboratively develop the terms of USDOE-proposed rules. Although this process worked for many ESSA regulatory issues, the committee irrevocably split over SNS. Political battle lines formed when the USDOE released an “issue paper” proposal that would require a district’s chosen SNS methodology to result in “each Title I school spending an amount of State and local funds that is equal to or greater (per pupil) than the average spent in non-Title I schools in the district…”

Supporters in the USDOE and the civil rights community maintain that this proposal directly addresses two related problems in prior Title I funding enforcement: 1) many districts still spend less per pupil in their higher-poverty schools; and 2) these schools have larger shares of lower-paid, less-trained, and less-experienced teachers along with higher rates of teacher turnover. The opposition, which included groups representing state school chiefs, school boards, administrators, and unions, asserted that the proposal was inconsistent with the SNS section itself, and that it would disrupt district budgets, labor contracts, and other resource allocation actions, such as teacher assignment and transfer. In public statements and at a Senate oversight hearing, Senator Lamar Alexander, one of the architects of the ESSA, criticized USDOE Secretary John King for overreaching, while Senator Patty Murray, the other architect of the legislation, expressed support for the Education Secretary’s position.

The USDOE did not officially issue its proposed SNS rule for public comment until August 31. The revised proposal added three permissible methodologies to the initial one, and it granted more flexibility regarding compliance under certain circumstances (see also here). Nonetheless, the changes did not seem to change the political landscape at all (see here and here for samples of interest and advocacy group reactions, and see here for a more comprehensive academic critique). With the opening of the public comments period, the National Education Association (NEA) mobilized a campaign of member comments.  Groups including the National School Boards Association, the Council of Chief State Officers and the Association of School Business Officials registered their opposition, while groups associated with civil rights expressed support.  Leading members of Congress also submitted dueling open letters on the subject (see here, here, and here).

The 60-day public comment period closed on November 7, and the SNS rule has not been heard from since.

SNS and Presidential Transition

The political coalition that achieved passage of the ESSA has foundered on the SNS rule, which remains in limbo. If the lame duck administration issues a final rule, Congress may, as it previously threatened, reject it under the Congressional Review Act, which could also restrict later administrative action. Alternatively, the new administration could initiate the process to revise or rescind the rule, or it could shape enforcement in its own fashion. If no final SNS rule is issued, the new administration could propose its own version, subject to the rulemaking process and potential challenges in Congress or the courts.

Meanwhile, states and districts nationwide must proceed with the ESSA implementation and their own fiscal planning, all with the allocation of billions of dollars in local, state and federal dollars potentially at stake.

Contact Dirk at zuschla2@msu.edu

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Dirk Zuschlag is a second-year education policy doctoral student. His research interests involve the interaction of teacher professionalism and accountability policies. Prior to entering MSU, Dirk taught public high school social studies for sixteen years and served as a learning coach and staff developer. He also spent thirteen years practicing law earlier in his career. He has a J.D. and an M.A. in Education from the University of Michigan, as well as a B.A. from Duke University.