Alexander: Administration’s ‘Supplement Not Supplant’ Regulation “Raises Grave Questions About What to Expect From Future Regulations”

Cites nonpartisan Congressional Research Service report that proposed regulation violates “plain language” of the law

Posted on May 18, 2016

WASHINGTON, D.C., May 18 – The chairman of the Senate education committee today said a regulation proposed by the Education Department on the new education law “raises grave questions about what we might expect from future regulations.”

“This is the very first opportunity the administration has to write regulations on the Every Student Succeeds Act. In my view, they earned an ‘F.’ The reason for that is that the ‘supplement not supplant’ regulation violates the law as implemented since 1970 and it seeks to do it in a way that is specifically prohibited by the Every Student Succeeds Act,” said Chairman Lamar Alexander (R-Tenn.).

Alexander, speaking at the committee’s third hearing overseeing the implementation of the new law, said: “Today, I am looking forward to hearing from witnesses whether what I have been hearing from principals, teachers, and education leaders is the case across the country—that it could turn upside down the funding formulas of almost all the State and local school systems across the country…That it could effectively require wholesale transfers of teachers and the breaking of collective bargaining agreements. That school districts won’t receive enough funds to comply. That students could be forced to change schools. That it could increase the segregation of low-income and high-income students.”

The hearing witnesses represented states, school districts, teachers, and others who supported passing the law and are working now to implement it.

The full text of the senator’s prepared remarks are below:

This is our third of six hearings to discuss the implementation of the Every Student Succeeds Act, which the President signed into law last December.

This is the second opportunity for this committee to hear from the states, school districts, teachers, principals, and others that helped us pass this overwhelmingly bipartisan law and are today working together to implement it in a manner that honors congressional intent.

I want to focus my remarks on the administration’s proposed “supplement not supplant” regulation.

This is the very first opportunity the administration has to write regulations on the Every Student Succeeds Act.

In my view, they earned an ‘F.’

The reason for that is that the regulation violates the law as implemented since 1970 and it seeks to do it in a way that is specifically prohibited by the Every Student Succeeds Act.

In writing the new law last year, Congress debated and ultimately chose to leave unchanged a provision in the law often referred to as “comparability.” This provision in the law says school districts have to provide at least comparable services with state and local funding to Title I schools and non-Title I schools.

The law plainly states that school districts shall not include teacher pay when they measure spending for purposes of comparability.

Then there is an entirely separate provision, known as “supplement not supplant” or SNS, that’s intended to keep local school districts from using federal Title I dollars as a replacement for state and local dollars in low-income schools.

What the department’s proposed supplement not supplant regulation attempts to do is change comparability by writing a new regulation governing supplement not supplant.

In other words, their proposal would force school districts to include teacher salaries in how they measure their state and local spending, and would require that state and local spending in each Title I school be at least equal to the average spent in non-Title I schools.

The effect of this would be to violate the law as implemented since 1970.

So the administration may get an “A” for cleverness, but an “F” for following the law.

The negotiated rulemaking committee couldn’t agree on the proposal, and at least one member, Tony Evers, a witness today, said that “Congressional intent isn’t necessarily being followed here.”

Last week, the nonpartisan Congressional Research Service said the same thing.

CRS issued a report that said: “[the Department's] interpretation appears to go beyond what would be required under a plain language reading of the statute.”

CRS found that the proposed [supplement, not supplant] regulations "appear to directly conflict" with statutory language that "seems to place clear limits on [the Department’s] authority" and "thus raises significant doubts about [the Department’s] legal basis for proposed regulations."

Today, I am looking forward to hearing from witnesses whether what I have been hearing from principals, teachers, and education leaders is the case across the country.

1. That it could turn upside down the funding formulas of almost all the State and local school systems across the country.

Most states and local school districts allocate K-12 funding to schools based on staffing ratios.

This often results in different amounts going to different schools in the same district because teacher salaries vary from school-to-school for reasons having nothing to do with a school’s participation in Title I.

Instead, salaries vary because of teacher experience, merit pay, or the subject or grade level they teach.

2. That it could effectively require wholesale transfers of teachers and the breaking of collective bargaining agreements.

3. That school districts won’t receive enough funds to comply.

4. That students could be forced to change schools.

5. That it could increase the segregation of low-income and high-income students

6. That it could require states and local school districts to move back to the burdensome practice of detailing every individual cost on which they spend money to provide a basic educational program to all students, which is exactly what we were trying to free states and districts from, under the law.

According to the Council of Great City Schools, it would cost $3.9 billion just for their 69 urban school systems to eliminate the differences in spending between schools.

What the department has done for the first time is to put together two major provisions of the law that have always been separate.

On comparability:

Members of this committee discussed changing this provision at great length over the past 6 years.

Senator Bennet had one proposal and I had another.

We ultimately decided not to make any changes to Comparability.

Instead, we included more transparency, in the form of public reporting, on the amount districts are spending on each student, including teacher salaries, so that parents and teachers know how much money is being spent and can make their own decisions about what to do with it, rather than the federal government mandating it be used in comparability calculations.

On supplement not supplant:

We addressed this provision and made changes with an effort to simplify the law, not make it more complicated.

By no stretch of the imagination did we intend that supplement not supplant would be used to modify the comparability provision. 

In fact, we specifically prohibited that. We:

Prohibited the Secretary from requiring local school districts to identify individual costs or services as supplemental.

Prohibited the Secretary from prescribing any specific methodology that local school districts use to distribute state and local funds; and

Prohibited the Secretary from requiring a state, local school district, or school to equalize spending.    

This is nothing less than a brazen effort to deliberately ignore a law that passed the Senate 85 to 12, passed the House 359-64, and was signed by the president.

No one has to guess what the law says. As the Congressional Research Service says—we can just read its plain language.

And if the administration can’t follow language on this, it raises grave questions about what we might expect from future regulations.  

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