Mike Stein on the Teachers’ Bill of Rights

Coffee County teacher Mike Stein offers his thoughts on the Teachers’ Bill of Rights (SB14/HB1074) being sponsored at the General Assembly by Mark Green of Clarksville and Jay Reedy of Erin.

Here’s some of what he has to say:

In my view, the most impactful elements of the Teachers’ Bill of Rights are the last four items. Teachers have been saying for decades that we shouldn’t be expected to purchase our own school supplies. No other profession does that. Additionally, it makes much-needed changes to the evaluation system. It is difficult, if not impossible, to argue against the notion that we should be evaluated by other educators with the same expertise. While good teaching is good teaching, there are content-specific strategies that only experts in that subject would truly be able to appreciate fully. Both the Coffee County Education Association and the Tennessee Education Association support this bill.

And here are those four items he references:

This bill further provides that an educator is not: (1) Required to spend the educator’s personal money to appropriately equip a classroom; (2) Evaluated by professionals, under the teacher evaluation advisory committee, without the same subject matter expertise as the educator; (3) Evaluated based on the performance of students whom the educator has never taught; or (4) Relocated to a different school based solely on test scores from state mandated assessments.

The legislation would change the teacher evaluation system by effectively eliminating TVAAS scores from the evaluations of teachers in non-tested subjects — those scores may be replaced by portfolios, an idea the state has rolled out but not funded. Additionally, identifying subject matter specific evaluators could prove difficult, but would likely provide stronger, more relevant evaluations.

Currently, teachers aren’t required to spend their own money on classrooms, but many teachers do because schools too often lack the resources to meet the needs of students. It’s good to see Senator Green and Rep. Reedy drawing attention to the important issue of classroom resources.

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


 

2017 Education Issues Outlook

The 2017 session of the Tennessee General Assembly is underway and as always, education is a hot issue on the Hill. The bill filing deadline was yesterday and some familiar issues are back again. Namely, vouchers.

While the voucher fight may be the biggest education showdown this session, issues ranging from the scope of the state’s Achievement School District to a “Teacher Bill of Rights” and of course, funding, will also be debated.

Here’s a rundown of the big issues for this session:

Vouchers

Senator Brian Kelsey of Shelby County is pushing a voucher plan that is essentially a pilot program that would apply to Shelby County only. Voucher advocates have failed to gain passage of a plan with statewide application over the past four legislative sessions. The idea behind this plan seems to be to limit it to Shelby County in order to mitigate opposition from lawmakers who fear a voucher scheme may negatively impact school systems in their own districts.

In addition to Kelsey’s limited plan, Rep. Bill Dunn of Knoxville is back with the “traditional” voucher bill he’s run year after year. This plan has essentially the same requirements as Kelsey’s plan, but would be available to students across the state. It’s not clear which of these two plans has the best chance of passage. I suspect both will be set in motion, and as time wears on, one will emerge as most likely to be adopted. Voucher advocates are likely emboldened by the election of Donald Trump and the subsequent appointment of Betsy DeVos as Secretary of Education.

Of course, Tennessee already has one type of voucher. The legislature adopted an Individual Education Account voucher program designed for students with special needs back in 2015. That proposal goes into effect this year. Chalkbeat reported that only 130 families applied. That’s pretty low, considering some 20,000 students meet the eligibility requirements.

Achievement School District

Two years ago, I wrote about how the ASD’s mission creep was hampering any potential effectiveness it might have. Now, it seems that even the ASD’s leadership agrees that pulling back and refocusing is necessary. Grace Tatter of Chalkbeat reports:

Lawmakers are considering a bill that would stop the Achievement School District from starting new charter schools, rather than just overhauling existing schools that are struggling.

Rep. David Hawk of Greeneville filed the bill last week at the request of the State Department of Education. In addition to curbing new starts, the legislation proposes changing the rules so that the ASD no longer can take over struggling schools unilaterally. Instead, the state would give local districts time and resources to turn around their lowest-performing schools.

Tatter notes that the Tennessee Department of Education and the ASD’s leadership support the bill. This is likely welcome news for those who have raised concerns over the ASD’s performance and approach.

Teacher Bill of Rights

Senator Mark Green of Clarksville has introduced what he’s calling a “Teacher Bill of Rights.” The bill outlines what Green sees as some basic protections for teachers. If adopted, his proposal would have the effect of changing the way the state evaluates teachers. Among the rights enumerated in SB 14 is the right to “be evaluated by a professional with the same subject matter expertise,” and the right to “be evaluated based only on students a teacher has taught.”

While both of these may seem like common sense, they are not current practice in Tennessee’s public schools. Many teachers are evaluated by building leaders and others who lack subject matter expertise. Further, teachers who do not generate their own student growth scores (those who don’t teach in tested subjects) are evaluated in part on school-wide scores or other metrics of student performance — meaning they receive an evaluation score based in part on students they’ve never taught.

Green’s Teacher Bill of Rights will almost certainly face opposition from the Department of Education.

Funding

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Governor Bill Haslam is proposing spending over $200 million in new money on schools. Around $60 million of that is for BEP growth. $100 million will provide districts with funds for teacher compensation. And, there’s $22 million for English Language Learners as well as $15 million for Career and Technical Education.

These are all good things and important investments for our schools. In fact, the BEP Review Committee — the state body tasked with reviewing school funding and evaluating the formula’s effectiveness, identified teacher pay and funds for English Language Learners as top priorities.

Here’s the full list of priorities identified by the BEP Review Committee for this year:

1. Sustained commitment to teacher compensation

2. English Language Learner funding (to bring ratios closer to the level called for in the BEP Enhancement Act of 2016)

3. Funding the number of guidance counselors at a level closer to national best practices

4. Funding Response to Instruction and Intervention positions

5. Sustained technology funding

Haslam’s budget proposal makes an effort to address 1 and 2. However, there’s no additional money to improve the guidance counselor ratio, no funds for the unfunded mandate of RTI and no additional money for technology.

Oh, and then there’s the persistent under-funding of schools as a result of a BEP formula that no longer works. In fact, the Comptroller’s Office says we are under-funding schools by at least $400 million. Haslam’s budget does not address the funding ratios that create this inadequacy.

Then, of course, improving the ratios does nothing on its own to achieve a long-standing BEP Review Committee goal: Providing districts with teacher compensation that more closely matches the actual cost of hiring a teacher. The projected cost of this, according to the 2014 BEP Review Committee Report, is around $500 million.

The good news is we have the money available to begin addressing the ratio deficit. The General Assembly could redirect some of our state’s surplus dollars toward improving the BEP ratios and start eating into that $400 million deficit. Doing so would return money to the taxpayers by way of investment in their local schools. It would also help County Commissions avoid raising property taxes.

Stay tuned as the bills start moving next week and beyond. It’s expected this session could last into May, and education will be a flash point throughout over these next few months.

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


 

Haslam To Fully Fund BEP

During the State of the State address on Monday, Governor Haslam announced that he is fully funding the Basic Education Program (BEP). Here’s what chalkbeat had to say:

In conjunction his seventh State of the State address, Haslam released a $37 billion proposed budget for 2017-18, including almost $230 million more for schools following a historic increase last year. Haslam said it’s one of the largest education funding increases in the state’s history and amounts to fully funding schools under the state’s funding formula known as the Basic Education Program.

Here’s what Haslam said during his address:

We’re fully funding the Basic Education Program including $22 million in additional dollars to help schools serve high need students and $15 million for career and technical education equipment. One hundred million dollars ($100 million) is included for teacher salaries, bringing the three year total since FY 16 to more than $300 million in new dollars for teacher salaries and more than $430 million in new dollars for salaries since 2011. Tennessee has shown it will not balance the budget on the backs of teachers and students. In fact, under the legislature and this administration, Tennessee has increased total K-12 spending by more than $1.3 billion.

It’s great the Governor Haslam is finally fully funding the BEP, which will allow for more resources going into the classrooms to help our students and teachers. For years, legislators, parents, bloggers, and local education officials have asked the Governor to fully fund the BEP. He finally listened.

Thanks for finally coming through, Governor Haslam.

Where do the funds go?

  • $100 million more for teacher salaries
  • $22 million more for English Language Learners
  • $15 million more for career technical education
  • $4.5 million more for the Read to be Ready initiative
  • $6 million (one time) for charter school facilities

I know many teachers will be extremely happy when they read the news. I know I am.  Now that it is fully funded, it’s time to make sure it’s fair.

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


 

Sargent Proposes BEP Changes

State Representative and House Finance Chair Charles Sargent will change how the state divvies up the school funding formula, known as the BEP.

Franklin Home Page reports:

In his first bill, Sargent said breaking down the figures and math with the BEP formula is simply complicated. But essentially, what he wants to accomplish is making sure districts receive their fair share of money.

New money would go into the BEP formula, and would provide a baseline for what the state has to provide per district. School districts should receive 80 percent of the average funding per pupil.

Essentially, no district would receive less than 80% of the state’s average per pupil expenditure.

The story also notes that Sargent wants the state to begin fully funding growth for districts:

Sargent said his second bill is a little bit less complex. Simply, he said he wanted the state to pay for growth entirely for districts. Right now, it only pays a partial percentage. And for districts that growing quickly like Williamson, it could be a game changer. The district grew last year by 1,800 students. In the next five years, that number will expand to 10,000 new students in WCS.

At the present time this last year, we funded anything over 1.4 percent growth,” Sargent said. “So if your district grew 2.4 percent, we paid for one percent of the at increase. But really, we need to fully fund all growth.”

With the state experiencing a significant budget surplus, it will be interesting to see if these proposed changes or other improvements to the BEP are adopted.

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


 

 

Not Even Licensed

A new report out of Memphis indicates that 66 bus drivers from Durham School Services were not properly licensed.

Durham is the same company that operates buses in Chattanooga, where a recent crash resulted in 6 deaths.

Jennifer Pignolet of the Commercial Appeal reports:

The company that runs school transportation for Shelby County Schools and other districts contracted with a Memphis driving academy not authorized to license school bus drivers.

Sixty-six drivers actively employed by Durham School Services across Shelby County will have to retake their commercial driver’s license test over winter break after the Tennessee Department of Safety and Homeland Security suspended operation of Private First Class Driving Academy.

Her story also notes:

Durham has previously come under fire from local school officials. An examination of police records in late 2014 found that Durham school bus drivers had been involved in at least 32 wrecks in Shelby County during the school year, a 27 percent increase over the previous year. Bus drivers were cited in 18 of those incidents.

I previously noted reports of Durham’s safety record which raised questions about the vendor when compared with similar bus operators.

Specifically:

According to federal safety data, Durham School Services has been involved in 346 crashes in the past two years. These accidents have resulted in 142 injuries and 3 fatalities. During that same time period, the company was cited 53 times for “unsafe driving conditions”. According to data compiled by the Federal Motor Carrier Safety Administration, “93% of motor carriers in the same safety event group have better on-road performance” than Durham.

The repeated issues with Durham School Services raise questions about both the vendor and about outsourcing essential school services generally. An earlier piece noted that the push to outsource bus services may be the result of under-funded schools systems searching for financial answers.

Unfortunately, outsourcing bus services may have immediate financial benefits, but rarely results in long-term savings. The issues around Durham’s performance also raise troubling questions about safety.

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


 

 

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.

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


 

Show Us the Money

WSMV reports state revenues came in at $108 million above projections in September:

Corporate franchise and exercise taxes came in at $76 million more than expectations in the month, which reflects economic activity in August. Sales taxes collections were $24 million higher than the amount budgeted for the month and reflect a 4.5 percent growth rate compared with the same year-ago period.

The surplus from September alone would be enough for the state to add 3500 teachers using the current funding formula. That’s 25% of the total needed to properly fund our state’s schools according to a recent report from the Comptroller’s office.

The report indicated:

The state is considerably underestimating the number of educators needed to run Tennessee schools according to its own requirements, says a state comptroller’s report released Wednesday.
And local governments are paying the difference. Statewide, districts employ about 12,700 more educators than the state funds, according to the comptroller’s Office of Research and Education Accountability, or OREA.

We are now in our third consecutive year of revenue growth well above projections. It’s time for the state to step up and invest in schools. Three more months with surpluses like September would provide enough revenue ($400 million) for the state to adequately fund teaching positions through the BEP. And don’t forget, we have more than $900 million in surplus funds from the budget year that ended on June 30th.

The money is there. Will it be invested in our schools?

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


 

 

That’ll Be $400 Million

The Comptroller’s Office of Research and Education Accountability is out with a new report that suggests Tennessee is underfunding its schools by at least $400 million. That’s because the BEP (the state’s funding formula for schools) fails to adequately fund education personnel.

Grace Tatter has more:

The state is considerably underestimating the number of educators needed to run Tennessee schools according to its own requirements, says a state comptroller’s report released Wednesday.
And local governments are paying the difference. Statewide, districts employ about 12,700 more educators than the state funds, according to the comptroller’s Office of Research and Education Accountability, or OREA.

Back in March, I wrote about this, and estimated the state was underfunding teachers by about 15%:

If districts only hired the BEP number of teachers, they could reduce local costs, but they’d also likely have some pretty unhappy parents on their hands. So, yes, the Governor’s proposed changes do direct additional funds to districts. But the changes do not address the underlying problem with the BEP. Doing so would cost another $250 to $300 million. That would be the cost of adjusting the ratios by 10-15% for teachers. That’s not to mention nurses, counselors, and other positions. And it doesn’t include capital funding.

Turns out, I underestimated the problem. The real number is around 22%, as Tatter notes:

The median percentage of additional teachers funded with local money was 22 percent. That translated to 686 more teachers in Knox County and 499 more in Rutherford County in 2014-15.

So, what does this mean? It means the state is underfunding local districts by about $394 million. That’s because the updated BEP formula funds teachers at $44,430 per unit. The state pays 70% of this cost.

That doesn’t include the cost of insurance for the additional 12,700 teachers. Nor does it include a salary adjustment to begin making up for the teacher wage gap. That cost is about $500 million.

So, to add proper state funding for needed teachers and provide adequate salaries, we’d need $894 million.

Then, there are the additional priorities identified by the BEP Review Committee. These priorities include providing teachers and schools the resources they need to adequately educate Tennessee’s students.

If your local property taxes have gone up recently to cover the cost of schools, you can blame the state for shorting our state’s school districts by nearly $900 million.

Incidentally, our state has a $925 million surplus — we could invest every dime of that into schools, meet the current need, and not raise state taxes one cent. Oh, and doing so would both improve public education and keep your local property taxes low.

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


 

 

 

MNPS Funding Suit DENIED

Jason Gonzales reports:

A judge has denied a request from Metro Nashville Public Schools asking the courts to command Tennessee to fully provide education funding to local school districts.

The district’s petition, filed Sept. 1, contends that the state’s constitution requires the Tennessee General Assembly to fully fund education in the state under its Basic Education Program. Commonly known as the BEP, it’s the formula the state uses to calculate how much it costs to educate an individual student in Tennessee.

Apparently agreeing with the state’s attorneys who said:

In its response to Nashville’s petition, the state says Nashville should follow the other districts in asking the court to address their right to education funding, rather than for a direct order to pay more money. “(Nashville) seeks a writ of mandamus that would require the General Assembly to provide funding to ELL teachers and translators in the ratios provided in (Tennessee Code),” the response reads. “… However, (Nashville) is not entitled to that writ.”

Chancellor Ellen Hobbs Lyle’s order says:

While the state has been sued for proper education funding, those cases didn’t request the courts force the state to immediately appropriate funds, Lyle said in the court papers. Therefore, Lyle said there is no law to enforce.

“Such law must first be adjudicated before the writ can issue,” Lyle said.

In short, until a decision is rendered on the adequacy of the formula, the state can’t be compelled to fund the formula. Lawsuits filed by Shelby County and Hamilton County both claim the state’s funding formula is inadequate and seek a judgment based on that claim. Those cases are still moving forward.

More on School Funding:

Haslam on Tennessee School Funding History

Just Kidding

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