{INSERT LETTERHEAD/LOGO}

INSERT DATE XX/XX/XXXX

The Honorable John King

Secretary

U.S. Department of Education

400 Maryland Avenue, NW

Washington, D.C. 20009

RE: Title I-Improving the Academic Achievement of the Disadvantaged-Supplement Not Supplant

ED-2016-OESE-0056-0001

Dear Secretary King,

I am writing today in response to the Department of Education’s (USED) proposed regulations related to the ‘Supplement, not Supplant’ (SNS) provisions of Title I in the Every Student Succeeds Act (ESSA). The regulations represent new, far-reaching federal mandates dictating how local school districts spend their state and local funds and are in conflict with the spirit and intent of the underlying statute, which is premised on state and local control. The SNS provisions are one of three tests designed to ensure the integrity of federal Title I funds, with SNS in particular designed to ensure Title I dollars are in addition to—not in place of—state and local resources. SNS looks at the construct or methodology by which a district allocates state and local resources and ensures the methodology is blind to whether or not a given school qualifies for Title I dollars.

ESSA’s reform of SNS should not be an opportunity for USED to exert unprecedented influence over the more than 90% of K-12 funding generated by state and local districts. It must be an opportunity for the flexible, but high expectations for equity in ESSA to drive improvement in our nation’s schools.

The SNS regulations, as drafted, gloss over the realities of school finance, the reality of how and when funds are allocated, the extent to which districts do or do not have complete flexibility, the patterns of teacher sorting and hiring, and the likelihood that many students would experience the rule, as drafted, in a way that undermines true efforts aimed at increasing education equity. The rule, as drafted, will restrict—rather than support—the ways in which state and local resources can be used to most effectively and equitably support at-risk students.

I am {insert title} in {insert school district name, city, state}. {Insert introductory narrative about your district, including community type (urban/rural/suburban); poverty rate; enrollment. You can also add details about how your district is focused on addressing poverty and inequities and the importance of this being led at the state and local level.}

{Insert details specific to the SNS response: Work with your school business official or the person who handles financial reporting. What would it mean for your district to have to equalize per pupil spending? What local plans and programs do you have in place that would be impacted? Are there state and local policies that this proposal runs counter to? Are there instances where certain resources make more sense to allocate at the district level, instead of at the school or pupil level? You could use the four bullets in the black text on page 2 to get you started on what these impacts could mean for your district. You could also cut/paste any of the following items (be sure to format the text into black ink, with non-Italicized text).

  • My district does not currently use an approach to SNS compliance as outlined in Options 1 and 2 (weighted student funding formula or average district cost).
  • My district is not presently equipped with the data infrastructure to determine if we meet the requirements of the ‘special rule’.
  • My district is unable to determine if we would meet the requirements under the ‘special rule’, in large part because the terms and definitions within the rule are vague and not sufficiently defined.
  • If it were as simple as merely shifting funds from lower-need to higher-need schools, this conversation would be moot. In glossing over the fiscal realities of district and school budgeting and allocation, however, this proposal conflates SNS and comparability, turns a blind eye to the constant tension that funding one school or program is at the expense of another, tacitly approves the concept of ‘robbing Paul to pay Peter’, and limits—rather than supports—the ability of local districts to most effectively and equitably use state and local resources to support at-risk students. }

Because compliance with the proposed regulation would be based on spending thresholds, districts would have to centrally manage all decisions that affect costs. The proposal would force school personnel to make the difficult decision of compliance over meeting the needs of the students they serve. The proposed rule’s negative consequences could also include (but are not limited to):

  • Last minute shuffling of staff or other resources to meet federal compliance requirements, because schools often cannot reliably predict enrollment, programming, or staffing levels in advance. It could also impact fundamental contract and collective bargaining rights.
  • A “one-size fits all” approach to programming in schools because uniformity makes compliance with the federal spending benchmarks easier to meet. This could negatively affect specialized schools such as Career/Technical education, International Baccalaureate, or magnet schools, as well as CTE, IB, dual-immersion, magnet, or performing arts schools, as well as specialized programs within schools where costs may vary from traditional programs.
  • Cutting programs or initiatives that increase student choice and/or have inherent cost variability because their lack of predictability makes compliance with the proposed rule difficult. This could include student course choice and dual enrollment programs, performance pay programs for teachers, or programs that reimburse students for certain costs.
  • Undermining support for future levies or bonds. Because the rule mandates how funds must be allocated to schools, it may erode support for local levies or bond initiatives which are an important source of revenue in many districts.

From a technical perspective, the proposed regulations are an overreach. They exceed the legal authority of the department and ignore explicit statutory prohibitions. Specific prohibitions in the "supplement not supplant" provisions include subdivision 1118(b)(4), which says, "Nothing in this section shall be construed to authorize or permit the Secretary to prescribe the specific methodology a local educational agency uses to allocate state and local funds to each school receiving assistance under this part." In addition, section 1605 says, "Nothing in this title shall be construed to mandate equalized spending per pupil for a state, local education agency, or school".

The underlying statute, as drafted, can already enforce the SNS provision without this regulation; it includes language that provides a test an auditor can use to evaluate compliance. I am concerned that this prolonged regulatory process and any legal battles that follow would be a setback to state and local planning for ESSA implementation. It is of critical importance that USED review and revise its proposed regulation so the final rule ensures compliance with SNS without being overly focused on spending comparisons.

Thank you for considering this feedback and I look forward to reading a revised final rule.

Sincerely,

Insert Name

Insert Title