Waiver Wave

The MNPS School Board unanimously approved a resolution calling for a one-year waiver of the use of TNReady/TCAP scores in both student grades and teacher evaluation. The request follows Knox County’s passage of a similar resolution earlier this month.

Here’s what I wrote about why that was the right move:

Right now, we don’t know if we have a good standardized test. Taking a year to get it right is important, especially in light of the frustrations of last year’s TNReady experience.

Of course, there’s no need for pro-achievement and pro-teacher folks to be divided into two camps, either. Tennessee can have a good, solid test that is an accurate measure of student achievement and also treat teachers fairly in the evaluation process.

To be clear, teachers aren’t asking for a waiver from all evaluation. They are asking for a fair, transparent evaluation system. TVAAS has long been criticized as neither. Even under the best of circumstances, TVAAS provides a minimal levelof useful information about teacher performance.

Now, we’re shifting to a new test. That shift alone makes it impossible to achieve a valid value-added score.

Now, two large Tennessee school districts are calling for a waiver from using test data in student grades and teacher evaluations. Will other districts follow suit? Will the General Assembly pay attention?

Here’s the text of the Nashville resolution:

WHEREAS, the Metropolitan Nashville Public Schools Board of Education is responsible for providing a local system of public education; and
WHEREAS, the State of Tennessee, through the work of the Tennessee General Assembly, the Tennessee Department of Education, the State Board of Education and local school boards, has established nationally recognized standards and measures for accountability in public education; and
WHEREAS, the rollout of the TNReady assessment in School Year 2015-2016 was a failure resulting in lost instructional time for students and undue stress for stakeholders; and
WHEREAS, due to the TNReady failure a waiver was provided for School Year 2015-2016
WHEREAS, a new assessment vendor, Questar, was not selected until July 6, 2016, yet high school students are set to take EOC exams from November 28-December 16; and
WHEREAS, there are documented errors on the part of Questar to administer similar assessments in New York and Mississippi; and
WHEREAS, score reports will be unavailable until Fall 2017; and
WHEREAS, Tennessee teachers will not be involved in writing test items for the assessment in School Year 2016-2017; and
WHEREAS, there is a reliance on using test items from other states, which may not align with Tennessee standards; and
WHEREAS, more than seventy percent of Metro Nashville Public School teachers do not produce individual TVAAS data; and
WHEREAS, the American Educational Research Association released a statement cautioning against the use of value added models, like TVAAS, for evaluating educators and using such data for high-stakes educational decisions;

NOW THEREFORE BE IT RESOLVED BY THE METRO NASHVILLE BOARD OF EDUCATION AS FOLLOWS:

The METRO NASHVILLE Board of Education opposes the use of TCAP data for any percentage of teacher and principal evaluations and student grades for school year 2016-2017 and urges Governor Haslam, Commissioner of Education Candice McQueen, the General Assembly and the State Board of Education to provide a one-year waiver.

For more on education politics and policy in Tennessee, follow @TNEdReport


 

 

Changes Are Coming To Nashville Middle Schools

Dr. Joseph heard a lot of critiques about Metro Nashville’s middle schools when he arrived in Nashville. He later found out that those critiques were spot on, according to Nashville Public Radio.

The newly-hired administrative team held 30 parent listening sessions over the first few weeks. And moms and dads kept talking about middle schools and how they’d like to see them add rigor, more advanced courses and even just a bit more homework.

As a former middle school principal, superintendent Shawn Joseph thought maybe parents were just misunderstanding their pre-teen children. But then he visited many of the district’s middle schools, and the concerns about academics were “validated.”

As a middle middleprepschool teacher, I’ve clearly seen the need for the transformation of middle schools. The district spent so much time transforming high schools that it felt like they forgot about middle schools.

While elementary schools are now getting more resources, middle schools got a new name in 2014 (Middle Preps) and were left alone. It’s like needing stitches and throwing a bandaid on it. It’s time for a real transformation and not just a quick fix. It didn’t work in 2014 and it won’t work now.

As I wrote in September following the release of ACT scores,

Preparing our students for graduation starts before the students even get to the high school level. MNPS transformed our high schools years ago towards the academy model. I think it’s time to start looking at the transformation of elementary and middle schools.

Elementary and middle schools need more supports in place to help close the gaps before students move on to high school. I don’t have all the answers, but I hope MNPS will be looking into ways to give more support to our lower grades.

It looks like Dr. Joseph is answering this call. I think too many students are still coming to middle school without basic skills that middle school teachers are not usually equipped to handle. I hope Dr. Joseph will continue to add more support to elementary schools while he is working to transform middle schools.

So when will these changes start to take place?

“Now is the time to give middle schools the love and attention they need to help strengthen our high school programs,” Joseph says.

Joseph cautions that he doesn’t anticipate any “mid-year, shoot-from-the-hip shifts.”

“We’ll take a bite at the apple next year with more comprehensive plans in year two and three,” he says.

Good luck, Dr. Joseph.

For more on education politics and policy in Tennessee, follow @TNEdReport,


 

School Funding: A Matter of Safety

The Tennessean offered this opinion today on school bus safety:

The National Transportation Safety Board has shifted its position on the issue, recommending that the addition of lap/shoulder seat belts could enhance safety features already built into the buses, saving more lives.

This is an issue that has been left to individual states to decide. The Tennessee General Assembly should give McCormick’s proposed school-bus-seat-belt legislation a good debate, and then pass it.

Yes, catastrophic school bus accidents are rare, but when it comes to the safety of children, rarity and cost should not be an issue.

Six dead children and more than a dozen injured in Chattanooga makes that point quite well.

The article references the recent tragedy in Chattanooga and notes Governor Bill Haslam calling for a safety review:

Tennessee Gov. Bill Haslam last week promised he would mobilize state government for a thorough review of the school bus process that would include everything “from how we hire drivers, to how we ensure safety of the equipment, to whether there’s seat belts on those buses.”

Interestingly, in 2015, when legislation was proposed to add seat belts to school buses, Haslam’s Administration expressed skepticism, according to the Knoxville News-Sentinel:

Rep. Joe Armstrong says he will continue to push for passage of a law requiring seat belts on school buses this year despite skepticism voiced by officials of Gov. Bill Haslam’s administration and some fellow legislators.

So far, despite attempts by legislators including now-House Speaker Beth Harwell, no seat belt legislation has passed in Tennessee.

Instead, the General Assembly spends a fair amount of time helping districts save money by extending the life of buses. Andy Sher in the Chattanooga Times-Free Press reported in 2014:

School districts that own their own school buses may get some relief as a new bill approved by the Tennessee General Assembly will allow school buses to stay on the road longer.

The bill, which is projected to save local school systems an estimated $56 million in the 2014-2015 school year alone, was given final approval by the House on Monday following its passage last week by senators.

Sponsored by Rep. Ron Travis, R-Dayton, and Sen. Mike Bell, R-Riceville, the bill authorizes the use of conventional and Class D school buses until their 18th year of service. Buses that are older can go beyond that time limit provided they have less than 200,000 miles and are inspected twice annually.

The effort to extend the life of buses combined with the failure of efforts to require seat belts ultimately comes down to the issue of money versus safety.

So, in a state that significantly under-funds schools, districts are forced to choose.

While it is encouraging to see lawmakers and Governor Haslam now examining bus safety, we shouldn’t have to wait for a tragic accident to take steps that could save lives.

For more on education politics and policy in Tennessee, follow @TNEdReport


 

 

Voucher Vulture DeVos Tapped as Education Secretary

President-elect Donald Trump has reportedly offered Michigan-based voucher vulture Betsy DeVos the role of Education Secretary in his cabinet.

Education Week reports:

  1. DeVos is the chairwoman of the American Federation for Children, an advocacy and research organization which advocates for a variety of forms of school choice including vouchers and tax-credit scholarships. Fellow board members include Kevin Chavous, a former District of Columbia Council member, and Campbell Brown, a former CNN anchor and the founder of The 74, an education news organization that says the “public education system is in crisis” in the U.S.

Fortunately, we have a preview of what education policy could look like if DeVos has her way. Unfortunately, that outlook is pretty grim. In June, I wrote about Detroit’s experiment with school choice — an experiment designed and supported by DeVos. Essentially, the system DeVos champions is one based on chaos:

Chaos. Uncertainty. Instability. That’s what a free market approach to public education brought Detroit. And, sadly, it also resulted in academic outcomes even worse than those expected in one of the worst public school districts in the country.

Choice advocates would have us believe that having more options will lead to innovation and force the local district to improve or close schools. Instead, in the case of Detroit, it led to chaos. The same fate could be visited upon other large, urban districts who fall into the free market education trap. Another unfortunate lesson from Detroit: Once you open the door, it’s very, very difficult to close.

The National Education Association was quick to respond to the reports:

Every day, educators use their voice to advocate for every student to reach his or her full potential. We believe that the chance for the success of a child should not depend on winning a charter lottery, being accepted by a private school, or living in the right ZIP code. We have, and will continue, to fight for all students to have a great public school in their community and the opportunity to succeed no matter their backgrounds or circumstances.

“Betsy DeVos has consistently worked against these values, and her efforts over the years have done more to undermine public education than support students. She has lobbied for failed schemes, like vouchers — which take away funding and local control from our public schools — to fund private schools at taxpayers’ expense.

In fact, the American Federation for Children by way of its Tennessee affiliate, the Tennessee Federation for Children, has spent millions of dollars in Tennessee lobbying for vouchers and supporting pro-voucher candidates for the General Assembly. In four consecutive legislative sessions, those efforts have failed. However, with renewed pressure from the federal government under DeVos, Tennesseans can likely expect an even more aggressive push for dangerous voucher schemes in 2017.

We’ve already seen voucher front group Tennesseans for Student Success spend hundreds of thousands of dollars to elect pro-voucher candidates.

And then there are the reports of voucher lobbyists hiding behind ethics law loopholes to host pro-privatization lawmakers at beach vacation retreats.

To be sure, Betsy DeVos is an advocate of education policies that have failed and she’ll likely seek an expansion of these failed policies through the use of the Department of Education.

MORE ON VOUCHERS:

Million Dollar Baby

Lessons from Louisiana on Vouchers

For more on education politics and policy in Tennessee, follow @TNEdReport


 

 

 

Nashville Teachers Vote for Conferencing

Teachers in Nashville overwhelming voted to enter into contract negotiations by way of Collaborative Conferencing according to a press release from the Metro Nashville Education Association (MNEA).

According to the release, 85% of teachers selected MNEA as the bargaining agent, meaning no other organization will represent Nashville teachers at the bargaining table. Under the rules for collaborative conferencing, any organization representing teachers that earns the support of at least 15% of teachers can play a role in the bargaining process.

MNEA President Erik Huth described the vote as an “overwhelming” victory for teachers and MNEA and noted that his organization has represented Nashville teachers for over 50 years, pre-dating collective bargaining.

According to MNEA, the next step in the process is training for both board members and teacher negotiators.

For more on education politics and policy in Tennessee, follow @TNEdReport


 

 

Why Doesn’t 4=4?

For the past two years, Gov. Haslam has proposed and the General Assembly has adopted education budgets that included four percent increases in state appropriations for the instructional salary component of the BEP. That means Tennessee teachers have received four percent raises in back-to-back years, right?

Wrong.

Instead, some teachers have seen no raise at all or very small salary increases while the average has hovered in the 2-2.5% range.

What’s going on?

I’ve attempted to explain this phenomenon here and here.

Those posts point to the State Board’s insistence on flexibility for local districts as a part of the equation. And, to be sure, the State Board’s refusal to adjust the state salary schedule by the same percentage as the salary appropriation does play a role.

But, there’s a bigger problem. The state is simply under-funding teaching positions through the BEP formula. I wrote about the Comptroller’s Office of Research and Education Accountability (OREA) study and pointed to a $400 million difference between the BEP-generated allocation of teaching positions and the actual number of teachers hired by local school systems. Since then, OREA has been informed by the Department of Education that some of those positions not funded by the state are entirely funded by federal dollars. The revised estimate, then, is that school districts in Tennessee are paying for between 12-18% of their teaching positions exclusively through local funds.

Yes, local districts are hiring between 12-18% more teachers than the state pays for through the BEP.  Imagine your school district with a teaching force reduced by an average of 15%. Could your schools function? Would students be well-served?

Since districts are responsible for 100% of the cost of any teacher hired beyond the BEP, they must make their available salary dollars stretch. So, when a district receives a 4% increase in salary funds, those funds are spread out among both the BEP-generated teachers and another 15% of teachers the district requires but which are not paid for at all by the state.

Stretching those dollars turns a 4% salary component increase into a raise of around 2% for most teachers. Some districts use 100% of their BEP salary allocation increase to hire new teachers, which means existing staff get no raise at all.

Fortunately, Governor Haslam just held budget hearings and Commissioner of Education Candice McQueen presented her proposed budget, including a recommended increase in the BEP. In fact, the issue of salary is discussed during the hearing when Finance Commissioner Larry Martin brings up BEP components. You can watch that discussion at around the 38 minute mark here. 

Unfortunately, McQueen is not proposing a solution to the BEP funding problem.

Grace Tatter reports:

Earlier in the day, Commissioner Candice McQueen asked for a 1.4 percent increase in education spending next school year, mostly to accommodate a projected 1.8 percent increase in student enrollment statewide, a driving component of the state’s school spending formula, called the Basic Education Program, or BEP.

In addition to wanting $58 million more for the BEP, McQueen asked for an extra $4.4 million for the state’s Read to Be Ready literacy initiative; $379,000 more on educator preparation programs; and $2 million to train teachers on new standards for science and the fine arts. She also is requesting $28.9 million for rural education programs.

It’s nice to see normal growth funded through the BEP, but districts will need a lot more than their share of $58 million to make up for the teacher funding shortfall under the current formula.

An increase of teaching positions of 15% through the BEP formula would cost $367 million. That’s without a salary increase. Of course, our state ended last year with a surplus of over $900 million and is starting this year with revenue coming in well over projections.

Here’s what Governor Haslam has to say about that:

Haslam said the increase would be substantial, although not as much as the state could afford with its considerable surplus. That’s because any pay hike must be sustainable in lean years, he said.

“We will continue to invest in education whenever we can, but we would like to be thoughtful,” Haslam told reporters after hearings on the budget for 2017-18.

If Haslam and the DOE were actually being thoughtful, they’d propose adjusting the BEP formula in a way that provides personnel funding that matches school system needs. Instead, teachers can likely expect that whatever raise is proposed and adopted will be cut in half as a result of the inadequacy of the BEP.

As for those “lean years,” we’re now in our third consecutive year of very significant surpluses. Investing 50% or so of last year’s surplus could beef up the BEP formula and still leave half a billion for other priorities or the rainy day fund.

The BEP is broken. A state experiencing significant budget surpluses should be able to fix it. What’s missing?

For more on education politics and policy in Tennessee, follow @TNEdReport


 

Elissa Kim Appointed to the State Board of Education

The State Board of Education got a new member today. Elissa Kim, the former Nashville School Board member, has been appointed to the State Board of Education as the 5th congressional district representative. Elissa Kim served one term on the Nashville school board.

Elissa Kim previously worked as the Executive Vice President of Recruitment at Teach for America, and she was a teacher in New Orleans before that. Kim replaces Carolyn Pearre, whose term expired this year after serving on the board since 2002.

Welcome aboard!

For more on education politics and policy in Tennessee, follow @TNEdReport.


 

Red Flags Rising

MNPS parent and blogger TC Weber has written several pieces about new Director of Schools Dr. Shawn Joseph. His latest compares Dr. Joseph’s start to that of former MNPS Director of Schools Pedro Garcia. It’s an interesting approach and well-researched. No matter your thoughts on TC’s conclusions, the parallels are worth considering.

Here’s how he starts:

It has been an interesting couple of months here in Nashville. Back in July, we got a brand new Director of Schools, Dr. Shawn Joseph. Everybody broke their arms clapping themselves on the back because it appeared we had a found a good old fashioned champion of public education for a superintendent. While in some ways that may be true, it appears that we may have gotten something else. The jury is still out on exactly what kind of director we’ve hired, but it’s safe to say that a number of red flags have arisen.

Over the last several months, I’ve written several posts outlining these red flags that have arisen since Dr. Joseph was hired.

Read more to see the issues TC identifies as potential red flags.

For more on education politics and policy in Tennessee, follow @TNEdReport


 

Tennesseans Against Liberals?

Just a group of moms and dads and teachers and administrators and engaged community members working together to make Tennessee schools great. Sounds nice, right?

That’s how the issue advocacy group Tennesseans for Student Success describes itself. Here’s the official description from their website:

Tennesseans for Student Success is made up of moms and dads, teachers and parents, administrators and education leaders, and community and elected officials. If you are interested in joining our work, we have a place for you to be a part of this historic work.

We hope you’ll join us in one of our Coalitions for Student Success. Our students are more prepared for their next steps than they have ever been before. Tennessee’s kids are now better prepared for life after school, but there is more work to be done. We need your help as we all work to spread the message of student success in counties and communities across the state.

See, a perfectly positive group spreading the message of student success all across Tennessee.

And then there’s this:

img_7748-mov

 

They sure don’t like that Gloria Johnson. You know, the former state rep. running for her old seat. The one who stood up to Bill Haslam and to special interests seeking to privatize public schools by way of vouchers.

Their involvement in the 13th district House race is more interesting in light of a twitter encounter back in August relative to the Nashville School Board races.

Here’s that tweet:

img_1351

 

So, they don’t endorse candidates? True, the ads against Gloria Johnson don’t technically ask voters to vote against her. But, the message is pretty clear.

Then, there’s this press release from after the August primary:

“Every election day brings the possibility of changing course in the General Assembly. As Tennessee’s students, teachers, parents, administrators, community leaders, and education advocates continue their work to make sure every child in the state has the opportunity to succeed, it is paramount Nashville stay focused on student success. Tennessee kids are the fastest improving in the nation in education and every elected official must be committed to that work.

“Tennesseans for Student Success this summer spent time across the state engaging with voters about our advocacy for all Tennessee classrooms. From school tours in Knoxville to Days of Action in Brentwood to reading events in Bolivar, we worked to advance and protect education reform throughout the state.

“As we celebrate the victories of Senator Dolores Gresham, Senator Steve Dickerson, Representative Charles Sargent, Representative Jon Lundberg, and Representative John DeBerry we are grateful voters considered the message of student-centered, commonsense education reform and voted for what’s best for their children, their teachers, their classrooms, and their futures.”

Hmm. All the candidates they are celebrating are also lawmakers who support school vouchers. While the candidate they are warning voters about, Gloria Johnson, opposes vouchers.

So, what’s the story? Is Tennesseans for Student Success a nonpartisan issue advocacy group just trying to help our schools? Or do they believe that liberals can’t also support student success? Or are they a front group for a Haslam Administration that supports school vouchers?

For more on education politics and policy in Tennessee, follow @TNEdReport


 

 

Supplemental Letter

25 Republican House and Senate Education Committee members, including Tennessee’s Lamar Alexander, sent a letter to Education Secretary John King expressing displeasure with proposed rules on what it means for federal Title I funds to “supplement, not supplant” state and local funds.

The legislators contend the proposed rule violates the intent of ESSA and could damage local districts and impact spending flexibility.

Here’s what they had to say:

The Honorable John B. King, Jr.
Secretary
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202

Re: RIN 1810-AB33
Proposed Rule on Implementing the Supplement, Not Supplant Provision Under Title I of the ESEA

Dear Secretary King:

We respectfully submit these comments in response to a Notice of Proposed Rulemaking (NPRM) to create new regulations to implement programs under Title I of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA), which was published in the Federal Register on September 6, 2016. As Members of the United States Senate Committee on Health, Education, Labor and Pensions (HELP) and House of Representatives Committee on Education and the Workforce, we are writing to express our strong concerns about the U.S. Department of Education (“the Department”) proposals to regulate the supplement, not supplant (SNS) requirement found in section 1118(b) of ESSA.

ESSA was signed into law by President Obama on December 10, 2015, after passing the U.S. House of Representatives (359 – 64) and Senate (85 – 12) with overwhelming bipartisan support. The new law represents a broad consensus to restore to States, Local Educational Agencies (LEAs), educators, and parents the responsibility for making important decisions about how to improve educational opportunities and outcomes for all students.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, the U.S. Supreme Court established that the test for reviewing an agency’s interpretation of a statute consists of two related questions. First, the question is “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter” because the court and agency must “give effect to the unambiguously expressed intent of Congress.” Second, if “Congress has not directly addressed the precise question at issue” or “if the statute is silent or ambiguous” the question is “whether the agency’s answer is based on a permissible construction of the statute.”

Unfortunately, the NPRM does not reflect the clear and unambiguously expressed intent of Congress. In the new law, Congress directly spoke to the issue by both clarifying and simplifying how LEAs demonstrate compliance with the SNS requirement under Title I of ESEA. The NPRM draws broad and inaccurate conclusions about what Congress intended when amending the SNS provision that are not supported by the statutory text and violate clear and unambiguous limitations on the Secretary’s authority. While the NPRM includes some provisions that accurately reflect the statute, it includes additional requirements on LEAs that are unlawful, unnecessary, and could result in harmful consequences to LEAs, schools, teachers, and students.

The intent of Congress in amending the SNS requirements under Title I of ESEA is clear and unambiguous in directly speaking to the issue of how LEAs must demonstrate compliance. As the Court has held, that should be “the end of the matter” for the Department, which through rulemaking should “give effect to the unambiguously expressed intent of Congress.” Instead, the NPRM violates this principle in imposing new requirements that reflect the Department’s own construction of the statute. We therefore strongly urge the Department to rescind this additional language and work with Congress in a bipartisan, bicameral way to implement ESSA as Congress clearly intended. The following outlines areas of agreement, and then describes the ways in which the Department’s proposal violates the letter and intent of the statute and could lead to negative results for low-income students and schools if it were implemented.
1. General Requirements in Compliance with ESSA and Congressional Intent
Sections 200.72(a) and (b)(1)(i) of the NPRM are consistent with the statute and Congressional intent by providing appropriate regulatory clarification that will enable LEAs to satisfy the requirements of the law. Consistent with section 1118(b)(1) of ESSA, the NPRM requires LEAs to use Title I, part A funds only to supplement the funds that would, in the absence of such funds, be made available from state and local sources for the education of students participating in Title I programs, and not to supplant such funds. This general requirement has been in ESEA since 1970 and is maintained under ESSA. Additionally, the NPRM repeats statutory language eliminating the non-regulatory “cost-by-cost” test. Accordingly, LEAs are no longer required to identify that an individual cost or service supported with Title I, part A funds is supplemental under ESEA. Finally, the NPRM also repeats statutory language that prohibits any requirement for LEAs to provide services with Title I, part A funds through a particular instructional method or instructional setting. Therefore, we recommend the Department maintain sections 200.72(a) and (b)(1)(i) of the NPRM.
2. Additional Requirements in Violation of ESSA and Congressional Intent
Section 200.72(b)(1)(ii) of the NPRM violates the “unambiguously expressed intent of Congress” and clearly contradicts provisions of the law that have existed since 1970 by outlining new and prescriptive methodologies from which LEAs must choose to distribute state and local education funding in order to demonstrate compliance with the SNS requirement under Title I, part A. Specifically, the NPRM would require each LEA to allocate “almost all State and local education funds to all of its public schools – regardless of Title I status” in a way that meets one of three federally prescribed tests. While the NPRM includes a “State-determined option for compliance” that the Department reasons is intended to “maximize flexibility for innovative approaches,” an LEA can only exercise this option if the methodology for distributing state and local funds is as rigorous, and results in substantially similar amounts of state and local funding for Title I schools in the district, as the other federally prescribed options. Furthermore, exercising this option must be ultimately approved by federal peer reviewers and the Secretary. Section 200.72(b)(1)(iii) also includes a “special rule” that provides a fourth option for how an LEA could comply with the new regulatory requirement, which is essentially the same Department proposal that was rejected during negotiated rulemaking. These new requirements on how state and local funds are distributed, which are not included in the law, violate the plain language of the statute, including limitations on the Secretary’s authority, and conflict with the unambiguous intent of Congress in amending the SNS requirement.
i. Section 1118(b)(2) of ESEA Does Not Require a Particular Funding Outcome

Section 1118(b)(2) of ESEA, as amended by ESSA, reads as follows:

(2) COMPLIANCE- To demonstrate compliance with paragraph (1), a local educational agency shall demonstrate 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.
The unambiguously expressed intent of Congress in adding the new paragraph (2) to the SNS provision was to clarify how LEAs should demonstrate compliance. This language replaces the test, established in non-regulatory guidance, that required most LEAs to demonstrate that each cost (i.e. material or service) charged with Title I funds was supplementary, which was criticized for being opaque, confusing, burdensome, incentivizing fragmented spending decisions, and otherwise in conflict with the purposes of Title I and the original intent of SNS. Instead, the plain language of ESEA now requires only that LEAs demonstrate that their methodology for allocating state and local dollars does not take into consideration a school’s receipt of Title I funds, which effectively means that the methodology must only demonstrate Title I neutrality. In other words, school districts cannot construct a methodology for distributing state and local funds to schools that deliberately reduces the amount of such funds that are allocated to Title I schools because they are also receiving Title I dollars. In doing so, Congress has directly spoken to the precise question at issue in setting forth an unambiguous auditable standard that does not require or support further regulatory clarification. That should be the end of the matter for the Department.

When the Senate passed its version of ESSA, entitled the Every Child Achieves Act, (S. 1177), which was approved unanimously by the Senate HELP Committee and passed the full Senate 81-17, it included language identical to paragraph (2) above, as well as a committee report negotiated between HELP Committee Republicans and Democrats. This report explained the unambiguously expressed intent of Congress in how LEAs must demonstrate compliance with SNS under Title I, saying:
Specifically, the bill allows States and LEAs to comply with SNS for title I, part A funds if they can document that the manner in which they allocate State and local resources to schools is “Title I neutral,” or that the methodology does not account for the title I funds that schools will receive. Additionally, the bill removes requirements in regulation that force LEAs to identify individual costs or services as supplemental. Instead, the way in which State and local resources are allocated to a school must be examined as a whole to ensure that the methodology does not account for title I funds the schools will receive. This language will provide more flexibility for schools to utilize title I funds to implement comprehensive and innovative programs. LEAs will be able to demonstrate SNS compliance in a much less burdensome and restrictive way, while still making clear that Federal dollars are supplemental to State and local dollars and not be used to replace them.
The plain language and unambiguously expressed intent of this provision is to provide more flexibility to LEAs in complying with SNS by demonstrating that their methodology for distributing state and local funds does not account for the Title I funds, and, therefore, any federal Title I dollars that a school receives is clearly supplemental to the state and local funds that they would otherwise receive. Compliance is established once this methodology is demonstrated. Thus, this should be the end of the matter. However, the regulatory clarification proposed in the NPRM goes well beyond the requirement set forth clearly in statute and unambiguously expressed intent of Congress. The Department’s proposal prescribes four new standards from which school districts must choose, which collectively require either a specific methodology for distributing state and local funds or specific funding distribution outcomes. Congress deliberately chose not to create any such standards and added a paragraph on how an LEA would comply with the SNS provision to clarify that intent.
ii. The NPRM Violates Clear Prohibitions on the Secretary’s Authority
In ESSA, Congress spoke directly to limit the Secretary’s authority to regulate. First, section 1118(b)(4) of ESEA prohibits the Secretary from prescribing any specific methodology for allocating state and local funds. Second, section 8527(a) states:
Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government, including through a grant, contract, or cooperative agreement, to mandate, direct, or control a State, local educational agency, or school’s … allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.
Based on these clear prohibitions, that should have been the end of the matter for the Department. Instead, section 200.72(b)(1)(ii) of the NPRM violates the statute and the unambiguously expressed intent of Congress in two ways.

First, the NPRM violates section 1118(b)(4) by prescribing the methodologies that LEAs may use to distribute state and local education funding. The Department reasons the NPRM is consistent with this prohibition because it provides a menu of options from which school districts can choose. However, in doing so, the NPRM creates a set of finite conditions for compliance with SNS, the practical effect of which is to prescribe specific methodologies that states and school districts must choose from to allocate State and local funds to all public schools. The proposal is also in violation of the intent of this prohibition, which was added to protect against any federal interference with school district funding methodologies, so long as those methodologies comply with paragraph (2) as discussed above.

Second, under the proposal, the Secretary is violating section 8527(a) by mandating, directing, and controlling how state and local resources are allocated, or alternatively, mandating states and LEAs spend additional funds not paid for under the statute. The fact that the NPRM will “mandate, direct, or control” the allocation of State or local resources or how a state or LEA spends its funds is not in dispute. The NPRM itself estimates that LEAs not in compliance would have to reallocate $800 million in State or local funds, or spend $2.2 billion in new State or local funds, or do a combination of both, in order to comply. The prohibition on such a mandate in section 8527(a) is not new to the law and its meaning is clear – federal officers may not mandate, direct, or control how States and LEAs spend or allocate their own dollars. This understanding of section 8527(a) was confirmed by a federal district court in School District of the City of Pontiac v. Secretary of the United States Department of Education. Therefore, by prescribing the methodologies that LEAs may use to distribute state and local education funding and effectively mandating, directing, and controlling how state and local resources are allocated, the NPRM violates clear prohibitions in the law and the unambiguously expressed intent of Congress to limit the Secretary’s authority to regulate.
iii. The NPRM is Not Supported by the Legislative History
The NPRM is not supported by the legislative history of ESSA in amending the SNS requirements. The Department reasons the proposed regulations “would ensure that Title I funds are used to fulfill their statutory purpose,” including to provide all children with a fair and equitable education, rather than to make up for “inequitable allocation of State and local funding to title I schools.” Many states have examined and are continuing to examine whether their own state and local funds are being allocated equitably to Title I and non-Title I schools. However, SNS has never required, nor is it intended to require, equity or fairness in the allocation of state and local education dollars.

As explained in a 2008 report, published by the Center for American Progress, under SNS “[a] district could provide half as much money for poor schools as middle-class schools, get Title I money, and then keep its own spending the same, using the new Title I dollars entirely for special programs in high-poverty schools.” The fact that Title I schools have received less state and local money than non-Title I schools would not violate the SNS requirement. The Department has maintained this interpretation of SNS since 1970.

The amendments made under Title I of ESSA do not alter this understanding of the purpose and intent of the SNS provision. The purpose of section 1118(b)(2) was not to prescribe how state and local funds must be distributed to Title I schools in comparison to non-Title I schools. Instead, it was to replace a complicated test for compliance issued by the Department in non-regulatory guidance with a simplified statutory requirement regarding how LEAs may comply with SNS. The Title I neutral test established by this provision is not new to the program. Guidance issued by the Department as recently as 2015 permitted LEAs to utilize a Title I neutral test to demonstrate compliance with SNS in schools operating a schoolwide program. Specifically, as articulated in the guidance, “the supplement not supplant requirement for a schoolwide program is simply that the school receive all non-Federal funds it would receive if it did not receive Title I funds.” The Title I neutral test does not change the purpose or expand the scope of SNS. As explained in a 2012 report by the Center for American Progress and the American Enterprise Institute, which recommended amending the SNS provisions in ESEA to provide the Title I neutral test for compliance that Congress ultimately included in ESSA:
It is important to note that this proposed test would not look at whether the amount of state and local money a Title I school receives is equitable. Given the significance of the problems caused by the current supplement-not-supplant test, this issue should be addressed on its own, separate from other Title I fiscal issues.
The legislative history of ESEA demonstrates Congress was aware of and considered language to address concerns about equity and fairness in the allocation of state and local education funds. Congress considered but did not approve proposed language that would have required spending in Title I schools to be measured against spending in non-Title I schools using actual per-pupil amounts. This proposal had been debated for years leading up to the enactment of ESSA. For example, the Senate HELP Committee debated but did not approve an amendment to ESEA’s comparability provision offered during Committee consideration of the Every Child Achieves Act by Sen. Michael Bennet (D-CO) that would have required LEAs to demonstrate that combined state and local per-pupil expenditures, including personnel and non-personnel expenditures, in each Title I school were not less than the average combined state and local per-pupil expenditures in non-Title I schools. Additionally, the House Education and the Workforce Committee debated and defeated a similar amendment offered by Rep. Marcia Fudge (D-OH) during Committee consideration of the Student Success Act. Instead, Congress added a new provision in section 1111(h)(1)(C)(x) that requires states and LEAs to publicly report actual per-pupil expenditures. Congress recognized the need for public scrutiny of funding allocations among schools. But Congress also recognized any mandates regarding actual per-pupil funding differences similar to what is proposed in the NPRM would cause far more harm than good for low-income students and chose not to enact them. Nobody involved in the negotiations that led to ESSA can plausibly argue that Congress intended to provide statutory authority for the requirements laid out in this NPRM.

Beyond the addition of this reporting provision, the issue of equitable funding between Title I and non-Title I schools was never raised during the subsequent Congressional negotiations that resulted in ESSA. During this process, the White House and the Department provided a list of priorities for Congressional consideration. This was not among those priorities. No member of the Conference committee ever proposed to amend either the comparability or SNS provisions under ESEA to address differences in actual per-pupil spending between Title I and non-Title I schools.

The NPRM does not reflect the plain language of ESEA or the unambiguously expressed intent of Congress in amending the SNS provisions in Title I of ESSA. As held by the U.S. Supreme Court, if “Congress has directly spoken to the precise question at issue” and “the intent of Congress is clear, that is the end of the matter.” ESSA clearly reflects the intent of Congress to clarify and simplify how LEAs must demonstrate compliance with the SNS requirements of Title I-A and places clear limitations on the Secretary’s authority to regulate beyond those requirements in statute. In requiring a particular funding outcome, prescribing the methodologies that LEAs must choose from to demonstrate compliance with SNS, and mandating, directing, or controlling how state and local funds are distributed to schools, the NPRM violates the unambiguously expressed intent of Congress. Furthermore, the NPRM is not supported by the legislative history of the SNS provision that has been in the law since 1970 or the amendments made to it under ESSA. Rather than deferring to Congressional intent, the Department, through the NPRM, seeks to impose its own construction of the statute, which does not stand up to scrutiny.
3. Potential Negative Impact of the Proposed Rule
The NPRM, if implemented, will have a harmful impact on low-income students, teachers, schools, and LEAs. First, the NPRM gives the federal government unprecedented control over state and local education finance systems and requires states to govern LEAs’ compliance, possibly in violation of some state and local laws. This will create chaos for State and local education systems and distract them from the important work of raising student achievement, especially for the most disadvantaged. Rather than improving academic outcomes, the NPRM would force state and local leaders to focus on arbitrary compliance targets.

Second, the NPRM would undermine school-based budgeting reforms. State and local leaders around the country have recognized that one of the best ways to improve school performance is to hire good principals and provide them the autonomy to hire the staff and develop the programs that will best meet the needs of their students. The prescribed methodologies set forth in the NPRM will likely require district office staff to make final decisions about which teachers and programs are placed in which schools. This is the only way to ensure spending is distributed in compliance with the NPRM. Staffing and program decisions will be based on a “numbers game” that focuses on meeting regulatory spending targets rather than the needs of students.

Third, most communities will not have the option of raising spending to comply with the NPRM. Therefore, because staff salaries are by far the largest cost within LEAs, the NPRM will force LEAs to transfer teachers out of their current schools to other schools chosen by the district. This will force many LEAs to violate collective bargaining agreements. But more importantly, it will likely exacerbate existing teacher shortage crises and in some cases force LEAs to place less effective teachers in higher need schools. Driving staffing decisions by arbitrary compliance requirements will harm low-income students.

Fourth, the NPRM ignores the reality of how certain costs critical to school operations, such as costs for school construction, transportation, and employee benefits and pensions, are accounted for by districts. The NPRM would force “almost all” state and local funds to be allocated directly to the school level, making it impossible for districts to reserve funds for these important functions. We are not aware of any LEAs that currently distribute “almost all” state and local funds to the school level – thus, this NPRM would drastically upset how local schools finance these costs.

It is unfortunate that, once again, the Department has refused to adhere to the letter and intent of the law, or listen to the many stakeholders who helped shape ESSA, are responsible for implementing the new law, and have already articulated the problems this NPRM would create. Congress will do everything in its power to ensure that this proposed rule never becomes final.

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