Alexander, Kline: Nonpartisan Government Analysis Confirms Education Department’s Proposed Regulation Is Against the Law

Congressional Research Service says court will likely find department will have “exceeded its statutory authority” if “supplement not supplant” rule is made final

Posted on May 11, 2016

WASHINGTON, May 11 – A new report by the non-partisan Congressional Research Service (CRS) finds the Department of Education’s proposed “supplement not supplant” regulation goes beyond “a plain language reading of the statute” and is likely against the law.

The CRS report was prepared in response to broad congressional interest in the proposed regulation on the new law that replaced No Child Left Behind and whether the department has the legal authority to issue the regulation. The report found that the department’s “interpretation appears to go beyond what would be required under a plain language reading of the statute,” and that proposed regulation “appear[s] to directly conflict with this statutory language, which seems to place clear limits on [the Education Department’s] authority.” The CRS report also states that a “legal argument could be raised that [the Education Department] exceeded its statutory authority if it promulgates the proposed [supplement not supplant] rules in their current form." 

Senate education committee Chairman Lamar Alexander (R-Tenn.) said: “This report from the non-partisan Congressional Research Service confirms that what the Education Department is proposing is against the law. So now Congress has told the education secretary it’s against the law, a government agency has researched it and said it’s against the law, and members of the negotiated rulemaking committee who rejected it said it was against the law. I will use every power of Congress to see that this law is implemented the way Congress wrote it.”

House Education and the Workforce Committee Chairman John Kline (R-Minn.) said: “The administration spent years dictating national education policy and failed to deliver the quality education every child deserves. Now, the department seems determined to repeat its past mistakes. There is no question this regulation would violate both the letter and intent of the law, and it must be abandoned. Congress and the administration promised to reduce the federal role and restore local control, and we will use every available tool to ensure that promise is kept.”

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. 

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

The department’s proposed supplement not supplant regulation attempts to change comparability by forcing school districts to include teacher salaries in how they measure their state and local spending and require that state and local spending in Title I schools be at least equal to the average spent in non-Title I schools.

The department proposed the regulation to a negotiated rulemaking committee in March, but the committee could not reach agreement on the proposal. Wisconsin Superintendent Tony Evers, a member of the rulemaking committee, warned that “Congressional intent isn't necessarily being followed here.”  

On the question of the department's legal authority for its regulations, CRS says: “The Supreme Court often recites the ‘plain meaning rule,’ that, if the language of the statute is plain and unambiguous, it must be applied according to its terms. Thus, if the language of the statute is clear, there is no need to look outside the statute to its legislative history or other extrinsic sources in order to ascertain the statute’s meaning or underlying congressional intent.”

“In the draft proposed rule ... the Education Department (ED) provided only a limited discussion of how this statutory language gives ED the legal authority to require parity in expenditures in Title I-A and non-Title-I-A schools. According to ED, the reason that the proposal requires that Title I-A schools receive at least as much in state and local funding as non-Title I-A schools is ‘so that Title I funds can provide truly supplemental support in Title I schools.’ ....On its face, however, the plain language of the SNS provisions does not appear to require such a result. Notably, the statutory language does not establish any type of standard or requirement regarding how to demonstrate that a Title I-A school receives all of the state and local funds it would have received in the absence of Title I-A funds. ...ED’s interpretation appears to go beyond what would be required under a plain language reading of the statute.” 

On the question of whether the law specifically prohibits the department from requiring equalized spending, the report says: “(The Every Student Succeeds Act) retained the Title I prohibition that states: ‘Nothing in this title shall be construed to mandate equalized spending per pupil for a State, local educational agency, or school.’ The proposed SNS regulations, however, appear to directly conflict with this statutory language, which seems to place clear limits on ED’s authority. This prohibition against equalized spending thus raises significant doubts about ED’s legal basis for proposing regulations that would require Title I-A per pupil expenditures to meet or exceed those of non-Title-I-A schools. ...Congress’s decision to expressly prohibit ED from requiring equalized expenditures among schools indicates that Congress did not intend to impose such a requirement in the SNS context, particularly in light of the absence of explicit language to the contrary.”

On the question of Congressional intent for the department to address comparability, the report says: “Meanwhile, the legislative history behind Title I’s comparability provisions raises similar questions about ED’s legal authority to establish the proposed SNS regulations in their current form. Over the eight-year period during which Congress considered a comprehensive reauthorization of the ESEA, several bills and amendments were introduced that would have modified the comparability provision to require that actual school-level expenditures be used in the determination of comparability, but none of these proposals have been adopted. Most recently, during consideration of S. 1177 in the Senate Health, Education, Labor, and Pensions Committee, Senator Michael Bennet offered and withdrew an amendment to require that comparability determinations be based on state and local per-pupil expenditures (including actual personnel and non-personnel expenditures). Ultimately, the ESSA, which comprehensively reauthorized the ESEA, did not make any changes to the comparability requirement, leaving in place the statutory prohibition on the use of staff salary differentials for years of employment when determining expenditures per pupil from state and local funds or instructional salaries per pupil from state and local funds. In other words, the ESSA did not alter the existing statutory language that prohibits the use of staff salary differentials for years of employment when determining expenditures per pupil from state and local funds or instructional salaries per pupil from state and local funds in making comparability determinations.

“Thus, the proposed SNS regulations appear to effectively require (local educational agencies) to use actual teacher salaries for SNS purposes despite the fact that the ESSA did not address this matter. Because a reviewing court could view this legislative history as relevant evidence of congressional intent to maintain current statutory requirements related to comparability determinations, a court could potentially conclude that ED lacks the statutory authority to attempt to impose a similar requirement via other methods, including promulgation of the proposed SNS regulations.”

The report concludes: “Based on the plain language of the above provisions in conjunction with the legislative history and the statutory scheme as a whole, it therefore seems unlikely that Congress intended section 1118(b) to authorize ED to establish regulations that would require Title I-A per-pupil expenditures to meet or exceed those of non-Title-I-A schools. Given some of the concerns identified above, it seems that a legal argument could be raised that ED exceeded its statutory authority if it promulgates the proposed SNS rules in their current form.”

You can view the full report HERE.

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