Speeches & Floor Statements

Floor Speech: CRS Report on “Supplement, Not Supplant”

Posted on May 11, 2016

I have come across an embarrassing situation. The United States Department of Education has apparently earned an "F" from the nonpartisan Congressional Research Service in its first attempt to write a regulation under the new law fixing No Child Left Behind that passed this body with 85 votes last year, that passed the House overwhelmingly and that President Obama signed into law in December calling it a “Christmas miracle.” Most of us will remember this law. I know the Senator from Pennsylvania had a major role in some provisions in it. This was a law to fix a law that everybody wanted fixed. It was eight years overdue.

The law that needed fixing was called “No Child Left Behind.” Over the last several years, the U.S. Department of Education had become in effect, “a national school board,” and everybody was upset with how much those who worked in the Department of Education were telling teachers and school boards and states and students and 100,000 public schools about what to do. They were telling them what to do about how to evaluate teachers, what to do about what their academic standards should be, Common Core, telling them what to do about how to use test scores, saying how to fix a school that might be in trouble. There were seven defined ways to fix such a school. People grew so upset with that, that we had a massive bipartisan uprising in the United States Congress. It's not easy to get 85 Senators behind a big, complex piece of legislation, but we did. And The Wall Street Journal said that it was the largest transfer of power from Washington, D.C. to the states in 25 years.

Almost everybody liked it; except some people in the United States Department of Education who set out immediately trying to rewrite the law as if they had actually been elected to something. Now we anticipated that, because in this law we took the extraordinary step – we in congress, who under Article 1 of the constitution are elected to write laws – we wrote prohibitions into the law. For example, in the law is a specific provision that said the U.S. Department of Education may not tell Tennessee or Pennsylvania or any other state, what its academic standards must be. Specifically, it may not tell it that it must adopt Common Core. That is in the law. That's a specific prohibition.

What I want to talk about today is a report by the Congressional Research Service that Congressman Kline, the Chairman of the House education committee, and I, released today which says in the very first attempt by the department to write a regulation implementing the new law, they flunked the test. Those are my words, not the Congressional Research Service, but their words are nearly as plain as mine. A new report by the CRS says that the proposed “Supplement, Not Supplant” regulation goes beyond, “a plain language reading of the statute,” and is likely against the law. Congressman Kline said “the administration spent years dictating national education policy. They failed to deliver the quality education every child deserves. Now the department seems determined to repeat its past mistakes. There's 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.”

Mr. Chairman, I know, Congressman Kline knows, and the members of this body know that a law is not worth the paper it's printed on unless it's implemented properly. And I'm determined as chairman of the Senate committee overseeing education to make sure this law is implemented properly. We will have this year six hearings on the implementation of this law. There is a coalition of organizations that includes the nation's governors, the National Education Association, the American Federation of Teachers, the chief state school officers. These are people who don't always agree on education policy. They helped pass this law, and they're equally determined to make sure it is implemented correctly.

And they're not just working at a national level. The governors in Tennessee and in other states are working with coalitions of those same organizations and others to make sure that the law is implemented properly. On April 12, we had a hearing in the Senate education committee, and I talked with the newly confirmed education secretary about this. I urged the president to appoint an education secretary because I wanted someone there who is accountable to the Senate, and he was confirmed.

His responsibility is to discharge his duties faithfully according to the law. But based upon this first regulation, no one seems to be taking that seriously. Let me be specific about it. There is a provision in the law that goes back to about 1970 which says that if you're going to get money from the federal government – we call that Title I money – that you've got to provide at least comparable services with state and local funding in schools that can get the money and schools that don't, except teacher salaries may not be included in that computation. That is in the law, Mr. President. That's been there for decades now. Now we had a debate in our committee, and on the floor about whether we should change that law. The Senator from Colorado, Senator Bennett, feels very well strongly about it.

He said we ought to change the law and say that teachers' salaries should be included in comparing spending in Title I schools and non-Title I schools. I had a different proposal. I said “well, I agree with your point, Senator Bennet, but my proposal, called Scholarship for Kids takes the federal dollars in Tennessee or Pennsylvania or Maryland, and lets the state decide to create $2,100 scholarships – that's the amount it can be – and follow each low-income child to the school that the child attends. Neither Senator Bennet's proposal nor my proposal could be adopted by the Senate. So we did not change the law. We then put specifically into the law a provision that said the Department of Education may not write a regulation in such a way that requires parity or equal spending among school districts. That's in the law as well.

Yet what happens? In the first regulation that the Department of Education sought to do in what we call the negotiated rule-making process, they came up with a scheme because, as the departing secretary said, his lawyers are “smarter” than the people in the Senate, or the people who work here. They came up with a scheme and requirements that would violate the law and the method they chose to require is prohibited by another provision in the law. I don't call that being clever. I call that just ignoring the law. And I'm not going to put up with it. I'm not going to allow a Department of Education to sit here and watch us—in both bodies of Congress by big bipartisan majorities, supported by governors as well as teachers unions—decide we don't want Washington dictating every little thing that happens in the schools, and then as soon as the president himself signs the law, they start rewriting it over in his own department.

If this one provision that the department came up with were adopted, these are some of the consequences. It would, number one, require a complete costly overhaul of almost all of the state and local finance systems in the country. Maybe they need to be overhauled, but we did not decide that they needed to be, and no one is elected in the Department of Education to require that. Number two – it would require forcing of thousands and thousands of teachers to transfer from one school to another school. Perhaps they should transfer, but there are 100,000 public schools, there are 3.5 million teachers, and we did not decide in our law that they had to transfer and the department can't decide that either. It would 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. We heard from superintendents, from school boards that this nit-picking, mother-may-I approach of the department bureaucrats was wasting the time of superintendents and teachers so into the law we wrote more flexibility. The department now wants to take it back.

According to the Council of Great City Schools, this new proposed rule would cost $3.9 billion just for the 69 urban school systems to eliminate the difference in spending between the schools. So, Mr. President, I would like to ask consent to include within the record following my remarks today a copy of a statement that Congressman Kline of Minnesota, the chairman of the house education committee, and I made concerning the report of the Congressional Research Service that says that likely the department has, “Exceeded its statutory authority and appears to go beyond what would be required under a plain language reading of the statute.”

The Wall Street Journal has said among other things, “the administration is now rewriting the parts of the law it doesn't like.” A law passed with big bipartisan majorities. This is an intolerable situation. This is complete flouting of the specific bipartisan intent of large majorities of the Senate and the House by a small group of people in a single department who know better than to do this. They're ignoring what we have written into law. They are not elected to anything. If they'd like to be in the Congress or the Senate, they can resign their positions and the elections come up this year. They can run and they can try to change the law. It took us eight years to debate. We debated these provisions, very good people.

I mean, the Senator from Colorado, who weighed in on this whole question of parity of spending between school districts is a former distinguished superintendent of the Denver school district. He feels very passionately about it. I used to be the United States Secretary of Education myself. I have a different proposal about how to fix it, and I feel pretty passionately about it. But I feel even more passionately that if we're going to decide the answer to the question, we're going to decide it here and it's not going to be decided down the street by regulations that are not authorized by law and in a method that is specifically prohibited by the provisions of a law that was signed by the president in December.

So this is the first such regulation, but there will be more. And I would hope that the Secretary of Education and the men and women who work for him would stop and take a deep breath and realize that we were serious when we passed this law, that we have the broad support of the entire education community across the board, and that I'm not going to rest until I make sure that this law is implemented in the way it was written. And that means that we're going to continue to hold the remainder of our six hearings this year, that I'm going to work with the coalition of governors, teachers organizations, chief state school officers and others to put a spotlight on what's happening in the department. That I'm going to urge the state departments of education to begin to write their own state education plans, which they then later submit to the department in order to obtain their federal dollars under the law, and that if the regulations are not consistent with the law, I don't believe they should follow them.

That means the state should ask for a hearing, and if the department persists, then the state should go to court and sue the department. And if it persists, we have our own remedies here in the United States Senate and the United States House of Representatives. We have something called the Congressional Review Act. It only takes 51 of us to overturn a final rule that we believe is not consistent with the law. We can do that. I will be at the head of the line in trying to do it. And we have an appropriations process, and the United States Department of Education has to come before us and be accountable to us for all of the money they receive. So I expect from here on out for those who write the rules to follow the law.

It's not just me saying this; it's not just Congressman Kline saying this. We have the nonpartisan Congressional Research Service that has examined this report, and I hope my colleagues will look at this. They have concluded that the regulation the department proposed does not follow the plain language reading of the statute that was enacted and signed into law only last December, and is likely against the law. This is the first shot across the bow. I will be watching every single one of these regulations, and I hope this does not happen a second or a third time or there will be a large number of us seeking to do anything we can do to make sure that the law is implemented the way it should be.

This was the most important law passed by the United States congress last year. It affected 50 million children, 3.5 million teachers and 100,000 public schools. It restored to the people closest to the children the authority for dealing with those children. Everybody wanted that. Virtually everybody wanted that except a few people in the United States Department of Education who can't keep their hands off America's 100,000 public schools. They need to do that. They need to learn to do that. They are supposed to create an environment in which teachers and students and school boards can succeed. They're not supposed to serve as a national school board. So, Mr. President, Congressman Kline, the chairman of the house committee and I released this report today. I call it to the attention of my colleagues. I call it to the attention of the governors and teachers organizations and all who care about our schools, and I can guarantee you that we're going to keep our eye on the ball and make sure that future regulations are within the authority of the law that we passed, and that this law, the most important law passed last year by this Congress and signed by the president, is implemented the way Congress wrote it.