[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
SUPPLANTING THE LAW AND LOCAL
EDUCATION AUTHORITY THROUGH
REGULATORY FIAT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON EARLY CHILDHOOD,
ELEMENTARY, AND SECONDARY EDUCATION
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, SEPTEMBER 21, 2016
__________
Serial No. 114-53
__________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Duncan Hunter, California Ranking Member
David P. Roe, Tennessee Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Matt Salmon, Arizona Joe Courtney, Connecticut
Brett Guthrie, Kentucky Marcia L. Fudge, Ohio
Todd Rokita, Indiana Jared Polis, Colorado
Lou Barletta, Pennsylvania Gregorio Kilili Camacho Sablan,
Joseph J. Heck, Nevada Northern Mariana Islands
Luke Messer, Indiana Frederica S. Wilson, Florida
Bradley Byrne, Alabama Suzanne Bonamici, Oregon
David Brat, Virginia Mark Pocan, Wisconsin
Buddy Carter, Georgia Mark Takano, California
Michael D. Bishop, Michigan Hakeem S. Jeffries, New York
Glenn Grothman, Wisconsin Katherine M. Clark, Massachusetts
Steve Russell, Oklahoma Alma S. Adams, North Carolina
Carlos Curbelo, Florida Mark DeSaulnier, California
Elise Stefanik, New York
Rick Allen, Georgia
Juliane Sullivan, Staff Director
Denise Forte, Minority Staff Director
----------
SUBCOMMITTEE ON EARLY CHILDHOOD, ELEMENTARY, AND SECONDARY EDUCATION
TODD ROKITA, Indiana, Chairman
Duncan Hunter, California Marcia L. Fudge, Ohio,
Glenn Thompson, Pennsylvania Ranking Minority Member
Dave Brat, Virginia Susan A. Davis, California
Buddy Carter, Georgia Raul M. Grijalva, Arizona
Michael D. Bishop, Michigan Gregorio Kilili Camacho Sablan,
Glenn Grothman, Wisconsin Northern Mariana Islands
Steve Russell, Oklahoma Suzanne Bonamici, Oregon
Carlos Curbelo, Florida Mark Takano, California
Katherine M. Clark, Massachusetts
C O N T E N T S
----------
Page
Hearing held on September 21, 2016............................... 1
Statement of Members:
Fudge, Hon. Marcia, L., Ranking Member, Subcommittee On Early
Childhood, Elementary, and Secondary Education............. 4
Prepared statement of.................................... 6
Rokita, Hon. Todd, Chairman, Subcommittee On Early Childhood,
Elementary, and Secondary Education........................ 1
Prepared statement of.................................... 4
Statement of Witnesses:
Canavero, Dr. Steve, Superintendent of Public Instruction,
Nevada Department of Education............................. 8
Prepared statement of.................................... 11
Gordon, Ms. Nora, Ph.D., Associate Professor, McCourt School
of Public Policy, Georgetown University, and Research
Associate, National Bureau of Economic Research............ 28
Prepared statement of.................................... 30
Owens, Mr. Ryan, Executive Director, Cooperative Council for
Oklahoma School Administration............................. 15
Prepared statement of.................................... 17
Sargrad, Mr. Scott, Director, K-12 Education Policy, Center
for American Progress...................................... 21
Prepared statement of.................................... 24
Additional Submissions:
Ms. Fudge:
Letter dated April 28, 2016, from The Leadership
Conference on Civil and Human Rights................... 58
Letter dated May 10, 2016, from Teach Plus............... 61
Letter dated May 27, 2016, from National Urban League.... 67
Letter dated August 31, 2016, from Civil and Human Rights
Coalition.............................................. 69
Letter dated August 31, 2016, from Teach Plus............ 70
Letter dated September 1, 2016, from Congressional
Hispanic Caucus........................................ 71
Letter dated September 1, 2016, from MALDEF.............. 72
Letter dated September 2, 2016, from National Council of
LaRaza (NCLR).......................................... 73
Chairman Rokita:
Slides................................................... 75
Questions submitted for the record....................... 83
Questions submitted for the record by:
Bishop, Hon. Michael D., a Representative in Congress
from the State of Minnesota............................ 83
Carter, Hon. Buddy, a Representative in Congress from the
State of Georgia...................................81, 83, 85
Curbelo, Hon. Carlos, a Representative in Congress from
the State of Florida...............................81, 83, 85
Grothman, Hon. Glenn, a Representative in Congress from
the State of Wisconsin................................. 81
Hunter, Hon. Duncan, a Representative in Congress from
the State of California................................ 81
Russell, Hon. Steve, a Representative in Congress from
the State of Oklahoma.................................. 85
Thompson, Hon. Glenn, a Representative in Congress from
the State of Pennsylvania..............................81, 85
Response to questions submitted for the record:
Dr. Canavero............................................. 87
Ms. Gordon............................................... 91
SUPPLANTING THE LAW AND LOCAL
EDUCATION AUTHORITY THROUGH
REGULATORY FIAT
----------
Wednesday, September 21, 2016
U.S. House of Representatives
Committee on Education and the Workforce,
Subcommittee on Early Childhood, Elementary, and Secondary Education
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:01 a.m., in
Room 2175, Rayburn House Office Building, Hon. Todd Rokita
[chairman of the subcommittee] presiding.
Present: Representatives Rokita, Thompson, Carter, Bishop,
Grothman, Fudge, Davis, Bonamici, and Clark.
Also Present: Representatives Kline, Scott, Polis, and
Adams.
Staff Present: Janelle Gardner, Coalitions and Members
Services Coordinator; Tyler Hernandez, Deputy Communications
Director; Amy Raaf Jones, Director of Education and Human
Resources Policy; Nancy Locke, Chief Clerk; Dominique McKay,
Deputy Press Secretary; Krisann Pearce, General Counsel; Mandy
Schaumburg, Education Deputy Director and Senior Counsel;
Alissa Strawcutter, Deputy Clerk; Leslie Tatum, Professional
Staff Member; Brad Thomas, Senior Education Policy Advisor;
Sheariah Yousefi, Legislative Assistant; Tylease Alli, Minority
Clerk/Intern and Fellow Coordinator; Jamitress Bowden, Minority
Press Assistant; Jacque Chevalier, Minority Deputy Education
Policy Director; Denise Forte, Minority Staff Director; Mishawn
Freeman, Minority Staff Assistant; Brian Kennedy, Minority
General Counsel; Alexander Payne, Minority Education Policy
Advisor; and Aneesh Sahni, Minority Education Policy Fellow.
Chairman Rokita. Good morning, and welcome to today's
hearing. When the committee last met to discuss the Every
Student Succeeds Act, we heard concerns from State and local
education leaders that the administration was not implementing
the law in a way that respects its letter and intent.
Since that time, the Department of Education has released a
regulatory proposal that I find so unprecedented and so
unlawful, in fact, that it demands its own examination, which
we are going to do today.
The proposal I am referring to is the department's proposed
``supplement not supplant'' regulation. This proposal changes
the longstanding policy that Federal funds supplement rather
than supplant State and local resources.
For years, the rule was applied differently depending on
how many low-income students the school served. As a result,
schools faced different requirements. Some are more onerous
than others.
That changed with the bipartisan Every Student Succeeds
Act, legislation that again was passed with overwhelming
support from both Republicans and Democrats.
Now, according to the law, the rule should be enforced
equally across every school. To do that, the bipartisan law,
again that the President signed, says districts only have to
show that funds are distributed in a way that does not take
into account Federal resources, and Congress deliberately chose
not to prescribe a specific approach or outcome. I remember
this. It was in the final negotiations.
The law also clearly prohibits the Secretary of Education
from interfering in the process. However, that is exactly what
the department and the Secretary is doing with their proposed
rule, and the consequences will be significant. It would be one
thing if it was a distinction without a difference, but I think
as we are going to hear today, the consequences will be
significant.
As Chairman Kline himself explained when the regulation was
proposed, it threatens to impose a multibillion regulatory tax
on schools across the country. To comply with the policy, many
school districts will have no choice but to change their hiring
practices and relocate their teachers. Other communities may
have to raise taxes because they simply do not have the
resources to meet this new burden. Some districts may have to
do both.
So regardless of how a district must cope with the new
regulation, the bottom line is that schools will be forced to
make decisions based on getting numbers to work and not on what
is in the best interest of their students, and the Federal
Government will have unprecedented control over local education
funding.
The department has said its proposal will provide
``flexibility,'' but it really just dictates a short list of
options, and frankly bad options at that. At the end of the
day, it will be America's poorest neighborhoods that are
impacted the most, and that is the last thing we intended as
Congress when it passed the Every Student Succeeds Act.
In fact, Congress considered similar reforms during the
debate of the legislation. We focused, for example, on a
separate provision you may recall, comparability; instead,
Congress specifically chose not to go down that road, not to
touch that provision, and flat out rejected adopting a policy
like the very one the department is proposing now.
The department insists that their supplement not supplant
proposal is not related to comparability, but even the
nonpartisan Congressional Research Service has explained how
this proposal is essentially an indirect way to amend the
comparability provision.
In short, this regulatory scheme is an attempt to
accomplish something Congress specifically chose not to do.
Anyone who was involved in passing the Every Student Succeeds
Act knows that, whether they are willing to say so or not.
Still, even if the department were confused about the
intent of the law, nothing excuses the fact that what it is
proposing is simply unlawful. Again, if you look at the quotes
on the screen, you can see that this language is taken directly
from the law, the Every Student Succeeds Act specifically
prohibits the Secretary from, quote ``prescribing the specific
methodology a local education agency uses to allocate State and
local funds to each school receiving the assistance,'' close
quote.
The department claims that is not what they are doing, but
with its limited list of options, it is clear that is exactly
what is happening. That is why we have called on the department
to throw this punitive policy out and to implement the law as
it was written and as intended.
For too long, our schools were forced to contend with a
failed top down approach to education, and that all changed
with the Every Student Succeeds Act, but it seems the
department has not learned this or chooses to ignore it, and is
intent on undermining those important bipartisan reforms.
We will do everything within this committee's power to
ensure that does not happen. This hearing is part of our
efforts to protect students, families, and taxpayers from this
unprecedented and unlawful regulatory scheme, and just as
importantly, to help every child receive an excellent
education, which I know that is why we are all here.
The best chance we have to accomplish that critical goal is
to ensure that the Every Student Succeeds Act is implemented
according to the letter and intent of the law as we wrote it.
I look forward to hearing from our witnesses today and how
this proposal is impacting their local communities across this
country.
With that, I will yield to Ranking Member Fudge, Ms. Fudge,
for her opening remarks.
[The statement of Chairman Rokita follows:]
Prepared Statement of Hon. Todd Rokita, Chairman, Subcommittee on Early
Childhood, Elementary, and Secondary Education
When the committee last met to discuss the Every Student Succeeds
Act, we heard concerns from state and local education leaders that the
administration is not implementing the law in a way that respects its
letter and intent. Since that time, the Department of Education has
released a regulatory proposal so unprecedented--and so unlawful--that
it demands its own examination.
The proposal I'm referring to is the department's proposed
``supplement, not supplant'' regulation. This proposal changes the
long-standing policy that federal funds supplement--rather than
supplant--state and local resources. For years, the rule was applied
differently depending on how many low-income students a school served.
As a result, schools faced different requirements--some more onerous
than others. That changed with the Every Student Succeeds Act--
legislation that was passed with overwhelming support from both
Republicans and Democrats.
Now, according to the law, the rule should be enforced equally
across all schools. Districts only have to show that funds are
distributed in a way that doesn't take into account federal resources,
and Congress deliberately chose not to prescribe a specific approach or
outcome. The law also clearly prohibits the secretary of education from
interfering in the process. However, that is exactly what this proposed
rule would do, and the consequences will be significant.
As Chairman Kline explained when the regulation was proposed, it
threatens to impose a multi-billion dollar regulatory tax on schools
across the country. To comply with the policy, many school districts
will have no choice but to change their hiring practices and relocate
their teachers. Other communities may have to raise taxes because they
simply don't have the resources to meet this new burden. Some districts
may have to do both.
Regardless of how a district must cope with the new regulation, the
bottom line is that schools will be forced to make decisions based on
getting the numbers to work--not on what's best for their students--and
the federal government will have unprecedented control over local
education funding.
The department has said that its proposal will provide schools
``flexibility,'' but it really just dictates a short list of bad
options. And, at the end of the day, it will be America's poorest
neighborhoods that are impacted most. That is the last thing Congress
intended when it passed the Every Student Succeeds Act.
In fact, Congress considered similar reforms during debate of the
legislation that focused on a separate provision, comparability.
Instead, Congress specifically chose not to touch that provision and
flat out rejected adopting a policy like the one the department is now
trying to impose.
The department insists their ``supplement, not supplant'' proposal
is not related to comparability, but even the nonpartisan Congressional
Research Service has explained how this proposal is essentially an
indirect way to amend the comparability provision. In short, this
regulatory scheme is an attempt to accomplish something Congress
specifically chose not to do. And anyone who was involved in passing
the Every Student Succeeds Act knows that--whether they are willing to
say so or not.
Still, even if the department were confused about the intent of the
law, nothing excuses the fact that what it is proposing is simply
unlawful. Again--[gesture to quote on screens] as you can see in this
language taken directly from the law--the Every Student Succeeds Act
specifically prohibits the secretary from ``prescribing the specific
methodology a local education agency uses to allocate state and local
funds to each school receiving assistance.'' The department claims that
is not what they're doing, but with its limited list of options, it's
clear that is exactly what is happening. That's why we have called on
the department to throw this punitive policy out and to implement the
law as it was written and intended.
For too long, our schools were forced to contend with a failed,
top-down approach to education. That all changed with the Every Student
Succeeds Act, but it seems the department hasn't learned its lesson and
is intent on undermining those important, bipartisan reforms. We will
do everything in our power to ensure that doesn't happen.
This hearing is part of our efforts to protect students, families,
and taxpayers from this unprecedented and unlawful regulatory scheme--
and just as importantly, to help every child receive an excellent
education. The best chance we have to accomplish that critical goal is
to ensure the Every Student Succeeds Act is implemented according to
the letter and intent of the law.
I look forward to hearing from our witnesses today and how they see
this proposal impacting their local communities and schools across the
country.
With that, I will yield to Ranking Member Fudge for her opening
remarks.
______
Ms. Fudge. Thank you, Mr. Chairman, and thank you all for
being here to provide testimony today.
Certainly, this is a bipartisan law, and I believe if fully
implemented, it will fulfill congressional intent and honor the
Elementary and Secondary Education Act's civil rights legacy to
promote and protect the right to educational opportunity for
our Nation's most vulnerable children.
Money matters. Poverty, especially when highly
concentrated, presents unique educational challenges. It takes
more money, not less, to provide equitable educational
opportunities in high poverty communities, which is why
Congress enacted Title I to serve as a supplemental funding
stream for our Nation's neediest schools.
Simply put, Title I is Congress' longstanding recognition
that equal is not always equitable. Unfortunately, the intent
of Title I has gone unrealized in school districts that
continue to spend less to educate children in high poverty
schools, perpetuating educational disparities within the
district, despite drawing dollars from the same tax base.
For too long, school district decisions on budget
allocation have gone unchecked, with schools serving high
poverty neighborhoods getting less than their fair share.
The supplement not supplant, or SNS, requirement that Title
I funds be in addition to State and local investment in schools
receiving Federal dollars was first adopted by Congress in
1969, and is the most important fiscal accountability provision
in the entire law.
In ESSA, Congress amended the provision. Compliance with
SNS can no longer be determined using cost test demonstrations
that allowed inequities to go unresolved. Congress did not
agree, however, to remove or waive compliance with the SNS
requirement.
To support enforcement of the requirement, the U.S.
Department of Education has a replacement proposed funds-based
standard for compliance. The replacement honors the intent of
Congress to permit for greater flexibility in how Title I
dollars are spent, while ensuring those dollars are in fact
supplemental to State and local investment.
According to the proposal, each school district, not the
Federal Government, determines its own formula for allocation
of State and local funds. If a district's Title I schools are
receiving their full share of State and local funds based on
the district's formula, Title I dollars are truly supplemental,
and the district is fully compliant with Federal law. That
seems to be reasonable to me.
The proposed rule seeks to address the annual underfunding
of high poverty schools. Meeting this new funds-based standard
for SNS compliance will likely be uncomfortable in some school
districts, those where inequities have gone unchecked. It will
likely drive hard conversations and new found accountability
and transparency for local budgeting processes.
While all of this may make compliance challenging, none of
it disqualifies the proposal as inappropriate or illegal.
This is just how my colleagues on the other side of the
aisle are characterizing the proposal, as part of a larger GOP
narrative, attacking the legitimacy of the executive branch.
While their outrage and chest pumping is loud and
distracting, I implore members of this subcommittee to not be
distracted from the real issue.
Nothing about the proposal supplants the law or local
authority as the title of this hearing would suggest, unless
they are speaking of the local authority to undermine
congressional intent by using Title I dollars to plug budget
holes that shortchange high poverty schools.
I respectfully remind my friends in the majority that SNS
is a Federal requirement to be enforced by the Federal agency.
Nothing in ESSA allows a local educational authority to
supersede that enforcement.
Let me be clear. Enforcement of the supplement not supplant
requirement is the responsibility of the department. It is my
expectation and the expectation of Congress that the Secretary
fulfill his responsibility to set an enforceable compliance
standard for the nearly 15,000 school districts across the
country.
In ESSA, Congress made it very clear that supplement not
supplant would remain a requirement. We chose to amend it, not
to eliminate it. At this point, I find the rhetoric of those
opposed disingenuous and devoid of any suggestion of what would
constitute an acceptable standard of compliance. Decrying the
standard put forth by the department without suggestion for
what the standard should be is the same as asking for no
standard and no enforcement.
That, my friends, was not the bipartisan agreement of ESSA.
With the enactment of ESSA, we have the opportunity to create a
more equitable system of public education. It would be
inexcusable for the Secretary to render the supplement not
supplant requirement meaningless without a Federal standard for
compliance.
I thank the witnesses for taking time out of their busy
schedules to participate in today's hearing, and look forward
to learning about their experiences and recommendations for
ensuring a smooth and successful transition to the new law in a
way that preserves the critical Federal role to promote
educational equity.
Thank you, Mr. Chairman. I yield back.
[The statement of Ranking Member Fudge follows:]
Prepared Statement of Hon. Marcia L. Fudge, Ranking Member,
Subcommittee on Early Childhood, Elementary, and Secondary Education
Thank you, Mr. Chairman. And thanks to our witnesses for appearing
before the subcommittee today to discuss the implementation of the
Every Student Succeeds Act, a bipartisan law that I believe, if
implemented with fidelity, will fulfill both Congressional intent and
honor the Elementary and Secondary Education Act's civil rights legacy
to promote and protect the right to educational opportunity for our
nation's most vulnerable children.
Poverty, especially when highly concentrated, presents unique
educational challenges. It takes more money, not less, to provide
equitable educational opportunity in high-poverty communities, which is
why Congress enacted Title I - to serve as a supplemental funding
stream for our nation's neediest schools. Simply put, Title I is
Congress' longstanding recognition that equal doesn't mean equitable.
Unfortunately, the intent of Title I has gone unfulfilled in school
districts that continue to spend less to educate children in their
high-poverty schools than in their lower-poverty schools, perpetuating
within-district educational disparities, despite drawing upon dollars
from the same tax base.
First adopted by Congress in 1969, the ``Supplement not supplant''
or ``SNS'' requirement that Title I funds be supplemental to state and
local investment in schools receiving federal dollars is the most
important fiscal accountability provision in the entire law. Congress
agreed, in ESSA, to amend the provision to no longer allow compliance
with SNS to be determined using current-practice cost test
demonstrations that have allowed within-district inequities to go
unresolved.
Congress did not agree, however, to remove or waive compliance with
the SNS requirement. And so, to ensure the integrity of the
requirement, the U.S. Department of Education has put forward a
proposal to replace the now disallowed cost test demonstrations with a
new standard for compliance. One that honors the intent of Congress to
allow for greater flexibility in how Title I dollars are spent while
also ensuring those dollars are, in fact, supplemental to state and
local investment.
According to the proposal, each school district, not the federal
government, comes up with its own formula for allocation of state and
local funds. If the district's Title I schools are receiving their full
share of state and local funds based on the district's own formula,
Title I dollars are truly supplemental and the district is fully
compliant with federal law. That seems like a reasonable standard to
me.
The proposed rule seeks to address, not ignore, the annual
underfunding of high-poverty schools in setting forth the standard for
compliance. Meeting this new standard for SNS compliance will
be uncomfortable in some school districts. It will likely drive
politically hard conversations and newfound accountability for local
budgeting processes. And while all of that may be challenging, none of
it inherently disqualifies the proposal as inappropriate or illegal.
As part of a larger narrative and attack on the role of the
executive branch, colleagues on the others side of the aisle are
characterizing the proposal as inappropriate and illegal. Nothing about
the proposal ``supplants'' the law or local authority as the title of
this hearing would suggest - unless they're speaking of the local
authority to undermine the spirit and intent of Title I by using it to
plug budget holes.
Let me be clear: enforcement of the supplement not supplant
requirement is the responsibility of Department, and it is my
expectation - and the expectation of House Democrats - that the
Secretary fulfill his responsibility to set an enforceable standard for
the nearly 15,000 school districts across this country. In ESSA,
Congress made it very clear that supplement not supplant would remain a
requirement. We chose to amend it, not eliminate it.
With the enactment of ESSA we have the opportunity to create a more
equitable system of public education. It would be inexcusable for the
Secretary to render the supplement not supplant requirement meaningless
without a federal standard for compliance and squander that
opportunity.
I thank the witnesses for taking the time out of their busy
schedules to participate in today's hearing, and look forward to
learning about their experiences and recommendations for ensuring a
smooth and successful transition to the new law in a way that preserves
the critical federal role in promoting educational equity.
Thank you, and I yield back.
______
Chairman Rokita. I thank the gentlelady. A quorum being
present and pursuant to Committee Rule 7(c), all members will
be permitted to submit written statements to be included in the
permanent hearing record, and without objection, the hearing
record will remain open for 14 days to allow such statements
and other extraneous material referenced during the hearing to
be submitted for the official hearing record.
I will now turn to the introduction of our distinguished
witnesses. First to testify will be Dr. Steve Canavero. He
serves as the superintendent of public instruction for the
Nevada Department of Education in Carson City, Nevada.
Prior to this position, Dr. Canavero served as the deputy
superintendent of student achievement at the Nevada Department
of Education, and as the first director of the State Public
Charter School Authority.
Dr. Canavero has a background in evaluation and planning,
and has worked as a teacher and principal. Welcome.
Next, Mr. Ryan Owens serves as executive director for the
Cooperative Council for Oklahoma School Administration in
Oklahoma City, Oklahoma. Prior to this position, Mr. Owens
served with the United Suburban Schools Association and the
Oklahoma Education Coalition, the Oklahoma Education Technology
Trust, and is an adjunct professor in the Colleges of Education
at Southern Nazarene University and the University of Oklahoma
at Tulsa. Welcome, sir.
Next, Mr. Scott Sargrad serves as the managing director for
the K-12 Education Policy team at the Center for American
Progress in Washington, D.C., and in this position, Mr. Sargrad
focuses on the areas of standards, assessments, school and
district accountability systems, and school improvement.
Prior to this position, Mr. Sargrad served as the deputy
assistant secretary for policy and strategic initiatives with
the Office of Elementary and Secondary Education at the U.S.
Department of Education. Welcome, sir.
Finally, Dr. Nora Gordon serves as associate professor of
public policy with the McCourt School of Public Policy at
Georgetown University, and as a research associate with the
National Bureau of Education Research.
Dr. Gordon's research focuses on fiscal federalism in
American education policy, and the current and historical
Federal role in elementary and secondary education. She is a
member of the expert panel to the Department of Education on
its study on the Title I formula as mandated by the Every
Student Succeeds Act. Welcome to you as well.
I will now ask our witnesses to raise your right hand.
There is no need for you to stand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
Let the record reflect that the witnesses all answered in
the affirmative.
Before I recognize you to give your testimony, let me
briefly explain our lighting system, and sometimes it is a
reminder for us up here, not just you all over there. You each
have five minutes to present your testimony. When you begin,
the light in front of you will turn green, of course. When one
minute is left, it will be yellow, and will turn red when your
time is over. Please respect those signals. When the red light
occurs, I will ask you to wrap up your remarks almost
immediately. Members, those of us here, will have five minutes
each to ask questions.
So with that, Dr. Canavero, I recognize you for five
minutes.
TESTIMONY OF STEVE CANAVERO, SUPERINTENDENT OF PUBLIC
INSTRUCTION, NEVADA DEPARTMENT OF EDUCATION
Mr. Canavero. Thank you, Chairman Rokita, Chairman Kline,
Ranking Member Fudge, and Ranking Member Scott, members of the
subcommittee for the opportunity to testify today, and for your
work to approve the Every Student Succeeds Act.
This new law will allow Nevada to build on our existing
education improvement efforts while at the same time setting
high standards for student success.
On behalf of the many chiefs like myself who are using this
opportunity present under the Every Student Succeeds Act to
transition our conversations away from Federal mandate to State
priorities and finding opportunities within the Federal law and
Federal funding to support our priorities, again, thank you.
One of the most important aspects of the Every Student
Succeeds Act is its focus on equity, as was mentioned here, its
civil rights legacy. We must ensure all students have the
opportunity to succeed and having access to the economic
opportunities that a quality education provides, and that
States, districts, and schools should be held accountable for
clear and measurable results.
In Nevada, Governor Brian Sandoval and the legislature have
taken a number of steps to promote equity and improve student
achievement. In 2005 alone, including additional financial and
program supports for English learners and for students living
in a poorest zip codes in Nevada; support for effective
literacy instruction to raise student achievement in reading;
several new programs for consistently underperforming schools,
including an Achievement School District, which allows the
State to intervene in failing schools; a Social Worker in
Schools Program; student access to technology and professional
development for teachers to utilize that technology in the
classroom; and addressing educator quality by providing PD and
improving the educator pipeline throughout the State.
Each of these programs represents a substantial financial
investment by the State to promote equity and achievement for
our 460,000 students and schools. All told, Nevada's
legislature invested roughly 340 million into additional
funding into education in 2016 and 2017 alone. That is
approximately a 10 percent increase in the State's education
budget all going to students who need it most. And we intend to
grow this investment on a biannual basis.
It was these investments and my Governor and State strong
commitment to equity that lead me to testify here today about
the Department of Education's proposed supplement not supplant
regulations. I know my fellow chief State school officers share
similar concerns.
The department's goals are laudable. It is clear
underperforming schools need more funding to support their
students' needs. However, imposing sweeping new Federal
mandates on how school districts must spend their State and
local funds in addition to the complicated way the proposed
regulations approach equity and school funding could actually
hurt State and local efforts to provide equity for all
students.
Here is a few reasons why. First, the regulations look only
at the amount spent in Title I schools versus non-Title I
schools. While the total dollars spent is important, it is not
the only measure of how we support students. These regulations
do not take into account other equity measures, such as
improved access to educational opportunities like advanced
placement, magnet schools, career and technical education
programs, the arts, or effective educators. By ignoring these
measures, the proposed regulations could harm State and local
efforts to promote these measures to benefit students.
In Nevada, our schools are providing these types of
opportunities for all kids, and we seek to expand them. I fear
the proposed regulations could result in significant
restructuring of these opportunities to allow students to
support a perverse incentive to lower the number of offerings
to make sure we are in compliance with the proposed fiscal
rules.
Second, districts will have to manage spending centrally to
comply with the proposed regulations. This means that any
decision that affects spending, which we know is virtually all
decisions, will have to be vetted through the district finance
office for compliance checks. This will affect everything from
school hiring and purchasing to curriculum.
In my State, we are working to return these decisions to
the local level, to those who understand students' individual
needs best. In fact, our State just approved a plan, a
bipartisan committee and the State board approved a plan for
the reorganization of Clark County School District, our largest
school district in Las Vegas, which shifts the major
decisionmaking around capital, human, financial, operations,
and academic planning from the central service of the district
to each school site.
Third and finally, I am concerned about what the
regulations do not say. For example, the rule does not define
many important terms like what it means to distribute ``almost
all'' of a district's money to schools, or what it means to
have a ``high proportion'' of disadvantaged students in a non-
Title I school to qualify for one of the exceptions.
Importantly, the rule does not address what State education
agencies should do if there is noncompliance. While these seem
like technical issues, they will have a significant impact on
my State's investments in an effort to promote equitable
opportunities for all kids.
I care deeply about equity. I am working closely with my
Governor and my State legislature to promote greater equity and
achievement for all kids in my State. We have made great
strides to create a more equitable education system, and I urge
the department to reconsider its proposed rule to interpret
supplement not supplant in a way that is both consistent with
the spirit of the Every Student Succeeds Act and promotes
equity.
Thank you, sir, for the time.
[The statement of Mr. Canavero follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Rokita. Thank you, Doctor. Mr. Owens, you are
recognized for five minutes.
TESTIMONY OF RYAN OWENS, EXECUTIVE DIRECTOR, COOPERATIVE
COUNCIL FOR OKLAHOMA SCHOOL ADMINISTRATION
Mr. Owens. Good morning, Chairman Rokita, Chairman Kline,
Ranking Member Fudge, and Ranking Member Scott, and honorable
members of this committee.
My name is Ryan Owens, and I am the executive director of
the Cooperative Council for Oklahoma School Administration.
Thank you for the opportunity to be here today. CCOSA
represents all of Oklahoma's public, private, and charter
school administrators. With more than 2,700 members actively
serving almost 700,000 students, we work each day to give voice
to the issues impacting educational attainment in the Sooner
State.
In the interest of brevity, I am not going to detail the
specifics of the proposed regulations. I am going to focus my
comments on the realities that school districts and
superintendents will face in implementing the proposed rule,
and what it could mean for the students they serve.
Over 66 percent of school sites in Oklahoma qualify as
Title I. Superintendents in Oklahoma and across the Nation are
acutely aware of the consequences of inequitable resource
allocation. Prescriptive regulations like these are not the
solution. These regulations create new administrative burdens
and encourage compliance-driven decisionmaking, which robs
communities of their ability to govern their local schools.
It would be far more helpful for the department to issue
technical assistance that instructs States and districts about
how to achieve the goal of equitable distribution of resources.
In seeking to equalize State and local spending among
schools, the proposed regulations, while noble in their goal,
reach far beyond the intent of ESSA, which merely requires LEAs
to demonstrate that Title I schools receive at least as much
State and local funds as they would otherwise receive if they
were not a Title I school.
Currently, in Oklahoma, site level administrators are given
the flexibility to assess student needs and determine the
amount of resources necessary to facilitate instruction. Under
the proposed regulation, district administration will have to
override school level decisions to ensure balanced resource
allocation between Title I and non-Title I schools without
regard to how those resources are used to benefit children.
The proposed rule is focused on teacher salaries as part of
the calculation for equitable resource allocation among Title I
and non-Title I schools. Destroying stability within classrooms
and among schools is a major concern as last-minute movement of
staff and other resources is likely in districts with multiple
sites.
Due to our State's budget crisis, Oklahoma schools have
eliminated over 1,500 teaching positions and we still have over
500 vacancies systemwide. How will Oklahoma districts using
long-term substitutes and larger class sizes satisfy a
requirement for equalized spending when the resource to be
measured, teachers, does not exist?
If the proposed rule becomes law, cost variability with
enrichment programs will no longer be tolerable due to the need
for uniform spending among Title I and non-Title I schools. For
example, John Marshall Mid-High School in Oklahoma City Public
Schools, a Title I school, offers students the opportunity to
participate in a Finance Academy where they learn about the
finance industry and work with university accounting students
to file income tax statements at no cost for eligible
Oklahomans. This is the type of specialized program at risk
under the proposed rule.
Another concern is enforcement of the proposed rule, and
what will happen to districts if they fall out of compliance.
The proposed regulation is silent about the meaning of key
terms, as was mentioned. We are all left confused about what it
means to allocate ``almost all'' of State and local funds to
school sites. The lack of clarity and the meaning of key terms
in the proposed rule increases the risk of uneven enforcement.
Recently, in Oklahoma, in one school, there was a
profoundly disabled student that was required to be served out
of State. The annual cost for these services exceeded $250,000.
Would these costs be included in a compliance calculation for
equitable fund distribution and, if so, how would a district
equalize the effect of such allocation?
Will local bond levies or maintenance of the physical plant
be included in these cost calculations and, if so, will the
proposed rule seek to override the decision of local voters by
equalizing construction and improvement among Title I and non-
Title I schools?
The proposed rule could undermine local support for future
bond issues as it could get harder to pass bond issues in
compliance with the rule.
ESSA recognized that those closest to students and schools
had the best hope for improving learning conditions. The
regulations proposed by the department take away the very
flexibility ESSA guarantees.
I respectfully ask that the department revisit the proposed
regulations and require of schools only what ESSA demands,
which is to demonstrate that Title I schools receive as much
State and local funds as they would otherwise receive if they
did not participate in Title I.
Thank you, Mr. Chairman.
[The statement of Mr. Owens follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Rokita. Thank you, Mr. Owens. Mr. Sargrad, you are
recognized for five minutes.
TESTIMONY OF SCOTT SARGRAD, MANAGING DIRECTOR, K-12 EDUCATION
POLICY, CENTER FOR AMERICAN PROGRESS
Mr. Sargrad. Thank you, Chairman Rokita, Chairman Kline,
Ranking Member Fudge, and Ranking Member Scott for the
opportunity to speak here today on the supplement not supplant
provision in the Every Student Succeeds Act.
And I just want to note that I bring here today my
perspective as a former teacher and special ed aide as well.
That is how I started my career in education, and that is
something I bring with me wherever I go.
As you all know, in 1965, Congress designed Title I of the
Elementary and Secondary Education Act to provide additional
resources to disadvantaged students in poor schools. Within
years, it was clear that poor students did not receive their
fair share of resources.
To address this inequity, Congress soon after approved the
first supplement not supplant provision to ensure that
districts did not use Federal money to replace State and local
dollars.
On September 6 of this year, the Department of Education
issued draft regulations on ESSA's updated supplement not
supplant provision taking another important step towards
fulfilling the law's requirements.
But before I dive into the research and policy, I just want
to step back and note that we are not considering here just dry
academic questions. Even as we sit here today, in too many
schools across the country, too many low-income students are in
crumbling schools without access to effective and experienced
teachers. They do not have rigorous courses. They do not have
the wrap around services that they need to be successful.
In fact, just two weeks ago in Baltimore, on a hot
September day, every school closed early because those schools
did not have air conditioning and those students lost valuable
learning time.
As Ranking Member Fudge said earlier, money matters in
education. It matters particularly for students from low-income
families. This is common sense, and it is supported by a
growing body of research.
For low-income students, a 10 percent increase in spending
increased adult wages by nearly 10 percent. Another study found
that greater State spending on low-income students dramatically
improved student learning in both reading and in math. Students
in poorer schools, however, continue to receive less than their
richer peers.
The Department of Education found in approximately 1,500
school districts across the country, about 5,700 schools
receive on average $440,000 less per year than wealthier
schools in the same district. That is a lot of money, $440,000
could let a school hire 8 new guidance counselors, it could
give a $10,000 bonus to 40 teachers.
This inequity also happens across districts, and while
there is significant variation between States, high poverty
districts on average spend 15 percent less per pupil than low
poverty districts.
In Pennsylvania, where I grew up, poorer school districts
spent 33 percent less per pupil than wealthier districts in the
State.
As a result of these policies, children of color often
suffer the most. Compared to high poverty and high minority
schools,w wealthier and low minority schools offer more
rigorous core programs. Wealthier schools are twice as likely
to offer a full range of math and science courses, they offer
three times as many AP courses, and they are twice as likely to
offer dual enrollment opportunities.
But again, these are not just facts and figures. Every day
real kids walk into real schools with so few resources that
every single one of us would find them unacceptable for our own
child.
In one Detroit elementary and middle school, black mold
covers the gym floor and ceilings are full of exposed wires. In
the William Penn School District, just down the road from where
I grew up, students like Jameria Miller ``race to class to get
the best blankets'' because they needed to stay warm since the
school's metal walls have no insulation.
From the passage of the original ESEA in 1965, the Federal
Government's role has been to protect historically
disadvantaged students and ensure they have the same
opportunities as their more advantaged peers. Beginning with
the original supplement not supplant provision, the Federal
Government has had a responsibility to enforce this requirement
of the law, and today's ESSA is no different.
Districts have historically shown compliance with the
supplement not supplant requirement by ensuring that every
service purchased with Title I funds was ``supplemental'' and
would not have been provided otherwise, and this meant that
districts often limited their spending to programs they could
easily show were supplemental and not necessarily programs that
were the most impactful, and Congress rightly with the new law
stopped that shortsighted practice. They did not make districts
justify every purchase.
Now instead, districts must demonstrate that their methods
of funding make sure that poorer schools get their fair share.
Recognizing that these historical funding inequities are a
problem without an easy solution, the new regulation provides
multiple options for districts to demonstrate compliance, and
States can develop their own compliance tests.
There is additional flexibility for schools serving lots of
students with disabilities, lots of English learners, districts
with small schools or schools with a single grade span. And
there is plenty of time to comply.
While this change will require extra efforts from school
districts, it does not mean that they will have to use
completely new strategies to distribute their school funding.
Ninety percent of districts will already be in compliance. That
does not mean we can rest on our laurels. Those 10 percent of
districts have to do the hard work to show they are fairly
supporting low-income schools, and they have to do that with
State and local funds before the Federal dollars, but this hard
work is worth it.
We know these funding inequities remain. We know that money
matters, and the department's regulations give flexible options
and time to comply so that districts can be thoughtful about
investing as part of their broader plan to support students in
need.
Thank you again for the opportunity to be here today.
[The statement of Mr. Sargrad follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Rokita. Thank you. Dr. Gordon, you are recognized
for five minutes.
TESTIMONY OF NORA GORDON, ASSOCIATE PROFESSOR, McCOURT SCHOOL
OF PUBLIC POLICY, GEORGETOWN UNIVERSITY, AND RESEARCH
ASSOCIATE, NATIONAL BUREAU OF ECONOMIC RESEARCH
Ms. Gordon. Chairman Kline, Chairman Rokita, Ranking Member
Fudge, and members of the subcommittee, thank you for the
opportunity to testify today.
For decades, compliance with supplement not supplant was
tested by looking at each individual Title I expenditure. When
this rule was in place, in 2014, in the course of my academic
research, I interviewed district Title I managers across four
States and found that compliance, not the effective use of
funds, was their central concern. But despite their concern and
attention to compliance, administrators were confused about
what was and was not legal. What districts did understand was
that Title I should only support extra things that were
different from the core curriculum.
This led to districts purchasing staff or services with
Title I that were often unaligned with a core curriculum
because they were easy to audit under the old rule rather than
because of student needs.
Meanwhile, research suggests that effective school
improvement requires comprehensive strategies and alignment to
good curriculum, not an assortment of add-ons.
The problems with the old supplement not supplant rule have
been around and documented by researchers since the 1970s. When
it looked like reauthorization of ESSA might be possible in
2012, the left-leaning Center for American Progress, Mr.
Sargrad's organization, and the right-leaning American
Enterprise Institute jointly published recommendations
describing how supplement not supplant should be fixed.
CAP and AEI stated that the test currently in use should be
replaced, and I quote, ``with a simpler, more objective test,
specifically: if districts can document that the manner in
which they allocate state and local resources to schools is
``Title I neutral,'' they should be clear of suspicion around
supplanting of nonfederal funds with Title I dollars.''
ESSA's new supplement not supplant test follows those
recommendation and transforms what was already an option for
schoolwide programs under No Child Left Behind and makes it the
compliance standard for all Title I schools.
As Ranking Member Fudge noted, ESSA absolutely does not
waive the requirement to supplement not supplant. It is just
the opposite; that language in the statute itself contains a
compliance standard which could set an auditable test for
supplement not supplant.
The standard as presented in plain language, which may
contribute to very common misperceptions that the law has no
test and without regulation supplement not supplant, cannot be
enforced. In short, districts have to explain how they are
funding their schools and show that this method ensures that
each Title I school receives all of the State and local funds
it would have if it did not participate in Title I.
In July 2015, the department itself explained how a
district could pass such a test for its schoolwide schools. The
language of ESSA simply expands the schoolwide approach to
supplement not supplant under No Child Left Behind to all Title
I schools.
The department's proposed rule takes an entirely different
approach to supplement not supplant than the statute's language
or the department's own previous guidance on the topic. It
mandates that Title I schools get a certain baseline of State
and local funds measured in dollars. This approach essentially
requires ad hoc adjustments in school level resources instead
of a consistent and transparent allocation methodology.
The goal of greater equity here is critical. Mr. Sargrad's
testimony highlights how high the stakes are on getting equity
right, but the department's approach does not get it right. It
has major potential negative policy and practical implications,
including districts needing to cut entire programs, like music,
art, or PE, in order to get the money they need to make the
numbers come out right; putting more expensive but less
effective teachers into Title I schools; the potential to
reduce local support for public schools and the taxes that
support them; the possible loss of State and local funds for
low-income schools that do not participate in Title I, and
there are many of these schools.
I just want to briefly turn to the cost-benefit analysis
the department has offered and state this is a superficial
analysis, and the data it is based on are not reliable. The
department does not know and cannot know how districts will
respond to the rule. This is the whole issue, how will
districts respond, and that is what will determine the cost and
the benefits to students.
ESSA also contains a critically important new reporting
provision that requires districts to report per pupil spending
data at the school level. This will result in much greater
transparency, but it will take time to implement.
The department should help districts develop good
transparent systems that generate reliable spending information
rather than proposing a complicated rule that could hurt the
very students it aims to help.
[The statement of Ms. Gordon follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Rokita. Thank you very much. I am going to
recognize myself for 5 minutes of questioning. I find it very
interesting, Dr. Gordon, that not only is the department going
in a completely opposite direction of what Congress intended in
this bipartisan law, but what you are saying is it is going
against its own guidance previously issued. Is that right?
Ms. Gordon. It is changing the direction. It is much more
specific than its previous guidance.
Chairman Rokita. Right. I want to focus also on this issue
of congressional intent, Dr. Gordon. Your testimony highlighted
this 2012 recommendation by the Center for American Progress
and the American Enterprise Institute.
The recommendation, which is quoted up on the screen here
on the slide, was to simplify the long-standing supplement not
supplant provision so that school districts would only have to
show the State and local funding allocations to schools are,
quote ``Title I neutral,'' unquote.
You mentioned in your testimony that the gentleman sitting
to your right is from the Center for American Progress.
It seems to me that this report, this idea, from a left
leaning group, organization, and a right leaning group actually
is what we did in the law. Is that correct, Title I neutral?
Ms. Gordon. Yes.
Chairman Rokita. Due to the reforms adopted by Congress
last year, specifically in Section 1118, the law now includes
this recommendation, again, shown on the screen, to ensure
States allocate funding in a Title I neutral manner. Is that
correct?
This recommendation that we are showing on the screen is
what you believe to be what we wrote into the law and signed by
the President?
Ms. Gordon. Yes.
Chairman Rokita. Now, is it true that the identical
language originated in the bipartisan proposal that was
negotiated by Senator Alexander and Senator Murray? Did you
follow those negotiations?
Ms. Gordon. Yes.
Chairman Rokita. And is this the same thing?
Ms. Gordon. Yes.
Chairman Rokita. In fact, as you point out in your
testimony, the bipartisan committee report for the Senate bill,
now showing that on the screen, explains the congressional
intent for this language. Are you familiar with this language?
Is this what we . . . ?
Ms. Gordon. Yes.
Chairman Rokita. Alright. It is certainly what I remember.
Dr. Gordon, given the clear legislative history behind this
provision and the unambiguous bipartisan explanation of the
provision contained in the Senate committee report, is there
any conceivable honest way to argue that Congress intended this
provision to be implemented in the way that the department is
now proposing?
Ms. Gordon. Not that I can imagine, no.
Chairman Rokita. That was the question. Thank you very
much. I appreciate that. Dr. Canavero, do you have anything to
add to this discussion we are having, this line of questioning?
Mr. Canavero. Chairman Rokita, I do not have anything to
add. I will just say obviously we are supportive of the
language that is the law. We believe that is a fair test for
demonstrating compliance for Title I, and we applaud the
changes in ESSA that allow a more schoolwide determination as
opposed to the classic and historic compliance-based
expenditure test that we have been working under so far.
Chairman Rokita. Well, I thank you for being for it. We all
have been for it. We all voted for this thing. The only ones
that do not seem to be for it now is the department, which
again is why we are here.
Mr. Owens, do you have anything to add?
Mr. Owens. Thank you, Mr. Chairman. I think again the test
that is created in statute is the one that should drive the
work of the department, which is very clearly whether the Title
I schools receive all the State and local funds to which they
were entitled, which is far and away very different than trying
to look at an equalization of expenditures of State and local
resources.
Chairman Rokita. Thank you. And I will yield back and
recognize the chairman of the full committee, Mr. Scott, for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Chairman Rokita. Long time before you retire. Mandy days.
Excuse me, the ranking member of the full committee, Mr. Scott.
Mr. Scott. There is no objection.
Chairman Rokita. The gentleman did not notice.
Mr. Scott. It just came so naturally, I did not notice.
Thank you, Mr. Chairman. Mr. Sargrad, when you talk about to
which entitled, is it not a fact that schools attended by low-
income students are chronically underfunded?
Mr. Sargrad. Yes, that is right.
Mr. Scott. When we wrote the law, is there any question
that we intended a change in the way it would be calculated,
that is to say we required new rulemaking to make sure we had a
new standard?
Mr. Sargrad. Yes, that is very clear.
Mr. Scott. How did you interpret the effect of that new
standard?
Mr. Sargrad. That it moved from an activities and services
based test to a funds based test, to ensure that schools
received all the funds they are entitled to.
Mr. Scott. And how low can you get in terms of underfunding
before you get out of compliance, according to the old
standard?
Mr. Sargrad. There is no limit, you could be significantly
underfunded.
Mr. Scott. You mentioned a lot of district to district
comparisons, what about within the district comparisons? Are
there districts that have students going to low-income schools
receiving significantly less per student than those going
across town within the same district?
Mr. Sargrad. Yes, there are significant gaps in many
districts.
Mr. Scott. How does the new standard deal with that?
Mr. Sargrad. It simply ensures that the Title I schools
receive the State and local funds that they are entitled to.
Mr. Scott. And that would mean that they would receive the
funds and then the Title I funds would be on top of that, would
supplemental to what they should have gotten in the first
place?
Mr. Sargrad. That is right.
Mr. Scott. Mr. Canavero, you indicated that the financial
standard by itself is too narrow. Is that right? You ought to
consider other activities like AP courses, CTE courses, arts,
effective teachers, things like that ought to part of the
calculation?
Mr. Canavero. Correct, sir.
Mr. Scott. Does that mean total dollars spent, should you
not at least have the money equal before you get into the other
activities? If you ought to consider other things, ought not
the money get straight before you go to the other activities?
Mr. Canavero. Certainly, sir. The notion of providing these
opportunities to all students is critical.
Mr. Scott. Within the district, are there disparities in
terms of funding before you get to the Title I funds?
Mr. Canavero. Are you asking specifically what the district
within Nevada or general?
Mr. Scott. Within school districts. Are there school
districts that before you get to the Title I money fund schools
attended by low-income students, are they getting more or less
generally than those attended by high-income students?
Mr. Canavero. The only detailed knowledge I have is within
my State, and generally speaking, they are all funded equally.
Mr. Scott. All of the Title I schools get equal funding
before you get to the Title I funding?
Mr. Canavero. That is correct, sir, and there are obviously
some nuisances related to cost of teachers within those
programs or as I mentioned in my testimony, the creation of
choice based programs that are meant to break down historic
enrollment patterns, related magnet schools in particular,
signature academies, whatever you want to call them.
Mr. Scott. Does the teacher calculation reflect the fact
that traditionally more effective teachers tend to teach at the
schools attended by high-income students rather than low-income
students, and so the payroll at schools attended by high-income
students would be higher than those attended by low-income
students?
Mr. Canavero. Historically, the discussion has not been
around effectiveness and pay, it has been around tenure and
pay, the longer they have been in service. What we find in
Nevada in particular is that under a significant shortage of
teachers, those shortages, however, are not equally spread. We
found that they are disproportionately spread with some hard to
fill schools such as those with students in poverty and
communities in poverty.
Mr. Scott. And so the payroll at the low-income school will
be significantly lower than that at a high-income school?
Mr. Canavero. It may be.
Mr. Scott. Generally speaking.
Mr. Canavero. Yes.
Mr. Scott. Thank you, Mr. Chairman. I yield back.
Chairman Rokita. I thank the gentleman. Now, let me take
this opportunity in high honor to introduce the chairman of the
full committee, a great American, and most importantly, a
benevolent and forgiving leader, Mr. Kline, for 5 minutes.
Chairman Kline. Clinging fearlessly to my job and title for
a few more weeks, I thank the chairman.
The discussion here fundamentally is about what happens
when the Congress takes a bill, works it through, passes it,
the President signs it into law, and you have a new law, and an
administration, any administration, then goes through the
regulatory process and starts to promulgate regulations to
allow for the implementation of that law.
The issue is that the administration, any administration,
is not allowed to decide what parts of the law it wants to
enforce and what parts it wants to change and what parts it
wants to leave out. The administration is not allowed to
rewrite law.
And so, there are some of us who feel like that is in fact
what is happening here with this administration and this
Secretary's implementation of the Every Student Succeeds Act.
So, Dr. Gordon, I want to come back to you and go through a
pretty step by step series of questions and answers so this
will be perfectly clear, at least to me and you. I am going to
go down the same line that Chairman Rokita was taking up in his
questions.
So, Dr. Gordon, the Center for American Progress and the
American Enterprise Institute had a specific proposal
addressing supplement not supplant, and that proposal was
adopted by Congress. Is that correct?
Ms. Gordon. Yes.
Chairman Kline. And these two organizations also
recommended Congress address actual per pupil spending of State
and local funds through the law's comparability provision. Is
that correct?
Ms. Gordon. The Center for American Progress did, yes.
Chairman Kline. Right. Okay, right. Does the department's
regulatory proposal that we are discussing today reflect the
goal behind that proposal?
Ms. Gordon. The comparability proposal?
Chairman Kline. Yes.
Ms. Gordon. Yes.
Chairman Kline. But did Congress change comparability or
any other provision in any way consistent with that proposal?
Ms. Gordon. No.
Chairman Kline. No, that is right. In fact, in the Senate,
Senator Bennet offered a specific amendment on comparability
that reflected the goals of the organizations' proposal. Did
the Senate adopt the Bennet amendment?
Ms. Gordon. No.
Chairman Kline. No. In the House, our colleague, the
ranking member of this subcommittee, also offered an amendment
with similar goals. Did the House adopt the Fudge amendment?
Ms. Gordon. No.
Chairman Kline. No. So Congress explicitly rejected
proposals to address actual per pupil spending in the law, but
did adopt the AEI/CAP recommendation to make this information
transparent, right?
Ms. Gordon. It adopted the CAP/AEI recommendation about
having a methodology based test of supplement, not supplant.
Chairman Kline. Thank you. I probably had too many words in
my question. Thank you. So, to summarize, Congress was aware of
recommendations to address actual per pupil spending, as we
just noted, in both the House and Senate, but on multiple
occasions, flatly rejected this idea selecting instead to
require States and school districts make per pupil spending
public, yet here we are today examining a regulatory scheme put
forth by this administration that Congress explicitly rejected,
and that I believe will wreak havoc on communities across the
country.
So, Dr. Gordon, again, staying with you, is there any
conceivable way to interpret the law's supplement not supplant
or comparability provisions as requiring any form of equalized
spending between Title I and non-Title I schools?
Ms. Gordon. No.
Chairman Kline. Exactly. Thank you very much. I yield back.
Chairman Rokita. I thank the gentleman. Ms. Clark, you are
recognized for 5 minutes.
Mrs. Clark. Thank you, Chairman Rokita, and Ranking Member
Fudge, and to all the panelists for being here today.
First, I want to give Mr. Sargrad a chance to respond to
the line of questioning we have had for Dr. Gordon. If you
could tell us about CAP's role in this definition and how you
see the implementation of the current supplement but not
supplant rolling out, and is it in line with your research?
Mr. Sargrad. Thank you, yes. So there are a couple of
things that I would want to say to this, the first is that just
like in the law, Congress decided to change to a funds based
supplement not supplant test but did not go into specific
details about how the department might enforce that requirement
and how precisely districts would comply, our recommendation
also was a policy recommendation that I think we anticipated,
although I was not at the Center for American Progress in
2012--we anticipated an administration would need to go through
rulemaking to interpret and to make sure atthe districts were
complying.
The second point that I would make is that the
recommendation around distribution of funds being Title I
neutral, is that if that method results in shortchanging Title
I schools, it seems pretty clear that is not Title I neutral,
and so that is a key piece of the recommendation and a key
piece of how we believe the law should be implemented.
Mrs. Clark. Thank you. I wanted to follow up also with Dr.
Canavero. In your testimony, you stated that, quote ``One of
the most important aspects of the ESSA is its focus on
equity,'' and I could not agree more. And you have set forth
some of your victory schools program where I believe the State
of Nevada put 25 million dollars into low-income schools, as
you described different programs, social workers, arts, other
programs that you felt were necessary.
But absent from your list of your State's ongoing effort to
implement is your State's effort to implement the most
expansive private school tuition tax credit in the Nation, one
that gives 51 hundred dollars to private school tuition
regardless of family income. This in a state where you are the
seventh highest percentage of children living in poverty in
Nevada, and at least according to the Ed Week report card, the
lowest ranking school system in the country.
I am curious, how do using these public funds intended for
public education, as we are here talking about how we can best
serve our lowest income students, how does that further your
State's focus on educational equity?
Mr. Canavero. Thank you for the opportunity to respond,
Representative Clark. So that is obviously a legislative
directive from the State legislature that is presently tied up
in the courts. And so, to the extent that I can control the
legislature, which I cannot, that is what it is.
I can tell you definitively that in a State with a
Republican Governor and a Republican controlled legislature, in
2015 to raise taxes to fund education, acknowledging the need
in our State, the undeniable need in our State to improve
outcomes for students, given all that you have just suggested
and more, fundamentally reflects, I think, the general
commitment of our State and our leadership in our State to
making things work, and to become, I think, at the end of the
day the fastest improving State in this Nation.
We recognize the challenges before us and we placed major
investments down to remediate those efforts.
There are a number of other . . .
Mrs. Clark. Is it not true, Dr. Canavero, that the Nevada
State Treasurer has estimated that this program if fully
implemented, and at this point 80 percent of the applicants for
this tax credit are higher income, only 11 percent are in your
40th or below in income levels, so only 11 percent really
beginning to touch the bottom 40th of earners, that could
divert up to $200 million from public schools.
Do you think there is a feeling in Nevada, in the State
legislature, that equal amounts of tax credit builds equity
into the system?
Mr. Canavero. I think that is a question that the
legislature and individual legislators could answer. It is not
within the Department of Education, as you recognize. It is
within the Treasurer. To the extent it is implemented, it is
implemented, and obviously, I follow the State's laws.
Mrs. Clark. Thank you. I yield back.
Chairman Rokita. I thank the gentlelady. Mr. Thompson, you
are recognized for 5 minutes.
Mr. Thompson. Chairman, thank you. Thank you for members of
the panel for being here on this important topic.
Let me bring our discussion right back to where it is
supposed to be, on the United States Department of Education,
and quite frankly, the intent of Congress. Because that is the
friction point we have at this point. My question I will open-
up to all.
Most of you have talked to some extent about the potential
impact on special programs, things like career and technical
education, magnet schools, art programs, physical education
mentioned. I am sure there may be others. Be curious to hear
what others you have concerns about with how the department is
moving ahead contrary to the intent of Congress.
Can you explain more about why these programs will be at
risk and how those programs are addressing equity concerns?
Let's start with Dr. Canavero, please.
Mr. Canavero. Certainly. Thank you, Representative
Thompson. In my testimony, I did mention career and technical
education, career and technical academies, magnet schools.
These are not provisions within the exceptions that are
currently listed within the regulations.
My concerns are as follows: they are expensive. Magnet
school programs are expensive. Career and technical academies
are expensive. Career and technical education is expensive, and
rightfully so given the infrastructure that needs to be built
out in order to provide students the opportunity for either
real world experience in a career/tech-ed or skill based work,
or whether it is in a magnet school specifically focused on
law, for example, or culinary.
Magnet schools themselves, if my memory serves me
correctly, began in the 1970s in response to there was a clear
opportunity to increase or decrease segregation in our schools,
and they provided an opportunity, open enrollment opportunity
to students. Typically, they are theme based. An opportunity to
enroll students outside of a traditional attendance boundary.
That is indeed what we see across our State, is that there are-
they have waiting lists. We could do and obviously fill more.
If we utilized the level funding test, in my testimony, my
fear is that school districts will be incentivized to lower the
offerings at magnet schools or career and technical education
programming in order to equalize the funding across, even
though those opportunities are made available to and many
students participate in the magnet school and career/tech
academies across our State from low-income.
Mr. Thompson. Just to follow up on that, you mentioned the
cost of career and technical education. Truly, if we are
meeting market demands and we are educating, and my
understanding was career and technical education, the dropout
rate there is much lower than in traditional education
settings, but there is a cost, if it is welding, medicine
related, agriculture, machining.
If those are where the costs occur obviously with this
equalization that the Department of Education is trying to
pursue, essentially if you do not have state-of-the-art
equipment, you are not really preparing the students with the
competencies to go right into the workforce. That is my
concern. Is that accurate?
Mr. Canavero. Representative Thompson, that is accurate,
and that is the genesis really and the nature of my testimony.
Again, reflecting absent additional dollars in the system, you
would need to make decisions that may mean that you have to
lower or reduce course offerings or reduce expansion of magnet
programs or reduce career and technical academies or reduce
career/tech ed in order to meet the fiscal test proposed.
Mr. Thompson. Thank you. Mr. Owens, any thoughts/impacts on
the types of programs we have been reflecting on?
Mr. Owens. Thank you, Representative Thompson. I would just
echo Dr. Canavero's statements regarding the career technical
component. In Oklahoma, we have Statewide open enrollment, open
transfer, so students can move freely between districts, when
they get within the open enrollment process, to access the
programs that are most beneficial to them and meeting their
needs.
So again, any of those programs that have cost variability
components really become intolerable under a rule that really
promotes uniformity of spending. So the example I cited in my
testimony that the Financial Academy, at the Title I school,
John Marshall Mid-High, has a banking center inside the school,
it brings students from universities in to help Oklahomans do
their taxes, those costs that you can't control at a district
level become programs that have to be wiped away.
Mr. Thompson. Thank you, Chairman. I yield back.
Chairman Rokita. I thank the gentleman. Ms. Bonamici, you
are recognized for 5 minutes.
Ms. Bonamici. Thank you very much, Chairman Rokita and
Ranking Member Fudge. Implementing the Every Student Succeeds
Act is going to further the goals of equity, and I am glad that
seems to be something everyone agrees on is going to help all
of our children across the country, students of color, low-
income students, Native students, English learners, students
with disabilities.
And certainly the supplement not supplant requirement plays
a critical role in achieving this goal. I know educators,
parents, and students in high poverty schools are frequently
shortchanged, and reports show that about 40 percent of Title I
schools receive less personnel funding per pupil than non-Title
I schools, and schools that serve almost entirely students of
color receive about $700 less per student than schools that are
predominantly white.
There is a disparity that needs to be addressed, and it is
especially troubling if we know that in some cases, it is not
just equal funding that is equitable, the schools serving
communities of concentrated poverty actually need additional
resources and support. I think that is the goal.
When Congress added this supplement not supplant
requirement to ESSA back in 1970, I was not here then, but I
think that was certainly the goal, so that those high needs
schools would receive that additional support, and for decades
Congress has stood by that principle.
I am a former State legislator and I think many of us are,
and understanding that need to send that message that these
Federal dollars are not to replace your K-12 investment.
We had a hearing in June, and Chairman Kline noted that the
law, that ESSA, requires districts to show that funds are
distributed fairly before they receive Title I dollars. And I
do not think anyone disagrees with that, I mean that is
certainly the intention here.
And to uphold our intention, Congress expects the
Department of Education to enforce the supplement not supplant
requirement, so there need to be some clear standards. I do not
think anyone would disagree with that.
I wanted to ask you, Mr. Sargrad, one concern that we have
heard is that this supplement not supplant requirement could
force districts to reassign teachers in ways that may not be in
the best interest of students. As the law supports a move to
greater equity, I want to make sure it does not create undue
disruption for hard working educators, and given your expertise
as a teacher and an official responsible for overseeing Title
I, how will States and districts be able to create greater
parity in school funding while also minimizing that uncertainty
for educators and making sure that school staffing decisions
are really driven by the needs of the students.
And if when you are discussing this, could you talk about
the difference between like large urban districts. I have 25
school districts in my congressional district, and they really
differ. Some of them are very large and some of them are very
small and rural. So would you talk about that as well, and how
this might affect the difference between rural and urban
schools, but really with a focus on whether this is going to
create undue disruption for educators.
Mr. Sargrad. Thank you, Representative Bonamici, I am happy
to talk about that. I absolutely agree with a lot of what folks
have said here today, that forcing transfers of teachers is a
bad idea. It is bad practice and it is not a good idea for
students and it is not a good idea for teachers.
But this proposed regulation will not require districts to
do that. There are multiple ways that districts can get
additional resources to poor schools without moving teachers
around. They could pay teachers more. They could provide
incentives for teachers to teach in these hard to staff low-
income schools. They could invest in these schools in wrap
around services and make sure every low-income school has a
guidance counselor and a school nurse and librarian, which many
of them do not. They could extend the school day or extend the
school year in these schools to make sure students have enough
time to learn what they need to learn to be prepared for
college or for a career.
And they can change their systems for funding, and they can
move to things like weighted student funding formulas that
provide additional resources for students with disabilities,
low-income students, and English language learners.
So there are lots of ways to get these resources to the
low-income schools, and I think the proposed rule does give
time for districts to figure this out, and they do not have to
make decisions right away about how they are going to do this,
but they can be thoughtful about how they are going to make
sure these schools get the resources that they need.
And I think to your question about the differences in
districts, I think that is a really important point. And I
think there are huge differences between a large urban district
and a small rural district or a mid-sized suburban district,
and they do have different options on how to comply with some
of these requirements.
And I think it is absolutely right there is not a single
test here. I think the fact that there are multiple options and
there is additional flexibility for specific unique
circumstances, and that there is an option for States to be
able to develop their own test here is very important.
Ms. Bonamici. Thank you very much. I see my time has
expired. Thank you, I yield back. Thank you, Mr. Chairman.
Chairman Rokita. I thank the gentlelady. Mr. Grothman, you
are recognized for 5 minutes.
Mr. Grothman. Sure, Mr. Canavero, I have a couple of
questions. But first, I would like to congratulate your State;
I was not aware they had passed a program allowing poorer kids,
all kids, to attend schools of their choice. There are so many
backward looking people who hate these programs because they
think that if they send their children to a private school,
they should not have the school watered down with other kids.
Maybe they do not want their children going to school with, and
I think it took a lot of guts of your legislature to do that,
so you can say I congratulate them for looking out for the
kids.
I used to be in the State legislature, and I understand the
interplay between State and local authority. Your testimony
discusses ambiguity for the States in balancing their Federal
enforcement obligation with the realities of State and local
laws that may limit a district's ability to comply or a State's
ability to enforce compliance.
Can you describe the kind of State and local laws you are
talking about and how they might conflict with this rule, and
can you describe the process that State and locals will have to
undertake to come into compliance with the department's
proposal?
Mr. Canavero. Certainly, Representative. So there are a few
examples here, one that I pull from my interactions with other
chiefs and with the [l1]CCSSO, the Council of Chief State
School Officers, relates to levies or bonds that are specific
to providing and raised by a district for a specific activity
or tied to a specific program.
And, if in fact that bond issuance or that levy conflicts
with the adjustment of resources that would be required under
the regulations or otherwise directed differently, how the
local system, how the local school district, would balance that
tension between what the levy requires or what that bond
commitment requires as acted on by the voters versus how to
remain compliant with the Federal rules. So that would be one.
The other maybe specific to Nevada is related to--it is
part of the ambiguity that we seek to get clear on, is related
to State initiatives around investments in schools, and what
that would translate to for a local education agency or a
school district in identifying their weights in compliance with
this particular provision.
So there would be some tension there specifically the laws,
that is something we continue to review, as a chief in my
State, we continue to review, but knowing again from a national
discussion, there is some concern related to the ability for
districts to both fulfill the obligations of a levy or a bond
issuance and be compliant.
Mr. Grothman. Okay. I have a question. Does this
requirement apply not only within a district but to a State as
a whole?
Mr. Canavero. My review of the regulations requires the
LEA, the district, to be compliant. Obviously, there is a State
role to be played here. You heard earlier the role that a State
could play which is to create its own algorithm.
Mr. Grothman. I'll give you a question. They only give us 5
minutes. One of the things that surprises me, at least in
Wisconsin, maybe Wisconsin is an anomaly, I do not think there
are significant differences at all from school to school within
a district.
There are differences in spending between districts, but I
would think for an average district, if they have 5 or 10
elementary schools, they probably all get almost identical
amounts of money. Is that the norm, or are there districts
around the country - I will ask any of you in which- really,
within the same district, different elementary schools are
getting wildly different amounts of money?
Mr. Sargrad. I would say that this is part the key piece of
this supplement not supplant provision, and the department's
regulation, that in 90 percent of districts, this is probably
not an issue, but in 10 percent of districts, there are
significant differences between low-income and high-income
schools, and for those students, those differences really
matter.
Ms. Gordon. I could just add to that, the districts where
there are differences, it may not be apparent because they may
have similar staffing, so you may see schools within a district
that all have relatively similar teacher/people ratios, and
what is driving the differences is largely the teacher
salaries.
Mr. Grothman. Would it not sometimes be inadvertent? I can
imagine the districts I have, usually the longer you teach, the
higher your salary goes, so just by chance one district may
have teachers averaging $60,000 a year and the other $45,000,
and it really does not have anything to do with quality. Is
that true?
Ms. Gordon. Yes, that is what is driving the difference,
pay scale.
Mr. Grothman. Seems to be a lot of paperwork, too. I would
be surprised if districts that I am aware of even know if there
is a difference in costs from school to school. I do not know
if they even break things down that way.
Ms. Gordon. Many districts do not have dollars at the
school level.
Chairman Rokita. The gentleman's time has expired. I thank
the gentleman. Mr. Polis, you are recognized for 5 minutes.
Mr. Polis. Thank you, Mr. Chairman. I want to thank the
witnesses for being today, and Ranking Member Fudge and
Chairman Rokita. Last fall, I had the opportunity to be on the
conference committee to reauthorize ESEA, and when we were in
our final negotiations, one theme remained consistent: ESEA is
a civil rights law first and foremost; it was created with the
idea that all students regardless of where they come from,
their race or ethnicity, deserve a fair shot.
And the issue we are discussing today really goes to the
core of ESEA's role in fulfilling that mission. And I think it
is important that the discussion today is around making sure
that the money provided in ESEA for the neediest schools
actually gets to these schools.
I briefly wanted to address the quote that Chairman Rokita
put on the wall regarding a congressional prohibition around a
specific methodology. Now, you know, I am not an attorney but
the simple read of the congressional intent there is a specific
methodology is prohibited, not several particular approaches
that are dictated, not several specific or parameters.
If Congress had not wanted the department to give several
possible approaches, the prohibition would have been against
guidelines at all being issued, against several different
approaches being outlined.
But the particular bar is a specific methodology, and of
course, there is not a specific methodology in the department's
proposed regs. There are in fact several very contrary to the
word ``a'' proposed approaches.
I also wanted to follow up on Mr. Thompson's question to
Dr. Canavero. I join Mr. Thompson in being a big fan of
vocational and career programs. I wanted to ask Dr. Canavero if
he is aware in Nevada of instances of Title I funds being used
for some of the things Mr. Thompson mentioned, like for
instance, the physical equipment for welding programs or shop
programs.
Mr. Canavero. Thank you, Representative Polis. I am not.
Mr. Polis. Reclaiming my time, the point being made is that
would be an unusual, perhaps not explicitly prohibited use of
funds, but in general, to the extent Title I funds are used for
equipment, it is equipment for Title I programs, it would not
be used for-really ever-it would be very difficult to use for
welding programs-oh, I see Mr. Thompson has left- or for other
types of programs.
The point being that of course we recognize the need for
the physical investment in vocational and career education
programs. I would also point out that in many cases this is
done in partnership with those who already have that equipment.
That is kind of the new way of doing that, community colleges
and others that have that equipment.
It is rare, not unheard of, for school districts to have to
purchase this equipment themselves these days, but of course,
it would be even rarer still for any Title I funds to be used
for that, almost impossible under previous guidelines and
current guidelines. I did want to point that out.
I wanted to go to Mr. Sargrad for a question. In your
testimony you mentioned that 90 percent of school districts
already meet the requirements under the proposed supplement not
supplant. Now, we have heard various instances of doom and
gloom about the proposed regulations.
For clarity, can you again explain how most school
districts already comply with these proposed standards, and
realistically, what do you think the effect of these
regulations would be?
Mr. Sargrad. Thank you, Representative Polis. So the
department estimates, as you mentioned, that approximately 90
percent of districts have no Title I schools that are receiving
less than their non-Title I counterparts. And that means that
in a small subset of districts and with a certain number of
schools, this is a significant problem, and as I mentioned, the
department also estimates that these differences are about
$440,000 per school.
But for the remainder of districts, they are already
spending enough money in their non-Title I schools to meet this
requirement, and combined with the flexibility that the
regulation provides on a 5 percent buffer year to year on the
spending, combined with flexibility for students with
disabilities and English learners.
Mr. Polis. Mr. Owens, it is my understanding your
organization, and I do not know if you personally as well, but
along with many State superintendent associations, are
supportive of the department's 2015 guidance on schoolwide
programs, and that guidance actually provides the same two
examples the department has included in its regulation.
The proposal also includes a State determined option for
compliance, very similar to those 2015 guidance, and I was
wondering why your organization or perhaps you can address it
on a personal level as well, why you are supportive of those
options in the 2015 guidance but not those same examples and
options in the current proposed regulation.
Mr. Owens. Thank you, Representative Polis. As I understand
the 2015 guidance and regulations, it provides much more
flexibility to my members to assess the needs of their students
and deploy resources accordingly, which is not as - the
flexibility is not as visible to us in the proposal today from
the department in terms of the methodologies that would be
prescribed for districts that result in uniform spending per
student.
Mr. Polis. Thank you.
Chairman Rokita. Thank you. The gentleman's time has
expired. I will now recognize Mr. Bishop for 5 minutes.
Mr. Bishop. Thank you, Chairman Rokita. Thank you for this
informative hearing today, and thank you to the panel for your
testimony and your time, really appreciated it.
I know a number of the members of this committee were State
legislators, I have heard them indicate that, and I think we
have all seen the heavy hand of the Federal Government as a
State legislator. Many times these programs were forced down
upon State legislatures, they call them ``incentives,'' but
they are in the form of a mandate, many case, an unfunded
mandate.
As a State legislator, I knew how very damaging they were
to what we were trying to do on behalf of our local school
districts. I am also a parent, so I have three children in
public schools today, and I am very concerned about the state
of our public schools, and that is why I was very proud of what
we did with the ESEA, which was a direct attempt at making sure
we ended these failed top down policies, and we reduced the
Federal rule, and really restored local control to K-12
education, which was a bipartisan effort.
It was the intent of Congress. I thought the law was clear
and unambiguous. We made every effort to try to drill down and
polish to ensure that there would be no questions as to
interpretation, but of course, now we are seeing that.
We had the director in several times expressing our
concerns about implementation. And now we are faced with an
implementation question. I am sure this is going to continue as
time goes on.
I have a question and I guess I do not know who to ask it
to, and please feel free to weigh in if you would like to, but
I would like to begin with Dr. Gordon, because I noticed in
your bio you focus on fiscal federalism and American
educational policy and the current historical Federal role in
elementary and secondary education, which I think is specific
to this question.
The department has estimated that all but about 1,500
school districts around the country will be in compliance with
what they are calling the ``special rule.'' In your testimony,
you questioned this data. How valid do you think the estimate
is?
Ms. Gordon. To clarify, that estimate comes from the 2013
civil rights data collection, which is now publicly available
for anyone who would like to try to replicate, and I have spent
some time with preliminary estimates with these data.
I do not question there would be about 1,500 districts who,
if you believed those numbers, which is an issue because many
school districts in that data collection are being asked to
report spending at the school level in dollars, and they do not
have the data infrastructure to generate those numbers, so they
are reporting something, something that is measured with error,
but if you take those data as a starting point, I think that is
probably correct that you would find about 1,500 districts that
are not in compliance.
What I disagree with, there are not 90 percent of districts
who are in compliance, rather the majority of that 90 percent,
the rule does not apply to them because they are so small they
do not have one Title I school and one non-Title I school
within the same grade span, so it is not that most districts
meet this rule. Rather, the rule does not apply to many
districts.
Mr. Bishop. Okay. But we agree that 1,500 is a good number
in terms of those that are not in compliance?
Ms. Gordon. Ballpark.
Mr. Bishop. Okay. The department also estimates that this
would cost about $800 million and $2.2 billion for those 1,500
districts to come into compliance with the special rule. Again,
how valid is that number?
Ms. Gordon. I have not tried to replicate that number, but
just to give some background on what I think is the methodology
because they have not shared details of how they calculate that
number, which you cannot replicate without knowing some of the
assumptions, I think the lower number comes from assuming that
you are just moving the money from non-Title I schools into
non-Title I schools, and the higher number comes from assuming
you are going to keep all Title I schools the same and level
up.
Mr. Bishop. In any case, the compliance number is
astronomical, especially for a local school district who is
already tied up and having difficulty making ends meet to begin
with.
Ms. Gordon. I think what should receive more attention,
actually in the proposed rule they discuss how there are 500
districts who are going to have greater costs, and it would be
interesting to see their data on what the costs are going to be
for those districts.
Mr. Bishop. It is unfortunate because communities will be
forced to relocate teachers, raise taxes or both, and America's
poorest neighborhoods will probably be hit the hardest.
Thank you. My time is up. I yield back.
Chairman Rokita. I thank the gentleman for yielding. Ms.
Adams, you are recognized for 5 minutes.
Ms. Adams. Thank you, Mr. Chair, Ranking Member Fudge, and
thank you to the panelists for your testimony.
Mr. Sargrad, what in your estimation would happen without
an enforceable standard for compliance with the supplement not
supplement requirement that can be used by State auditors, and
what happens if it is left completely open for interpretation?
Mr. Sargrad. Thank you, Representative Adams. I think that
is a great question. There are two things that I think could
happen. One is that districts will continue to be confused by
this requirement just as they have been in the past. I think
you have heard from a number of us today that the old
supplement not supplant requirement really did not serve kids
well because districts were so concerned about these audit
requirements and there was not clear guidance and there were
not clear regulations on this.
The second thing is that you could continue to see these
inequities persist at the district level. As we have mentioned,
this represents 1,500 districts, but there are a lot of
students that there in those districts and a lot of students
that this money could do real good for.
And if the department cannot enforce this requirement and
districts continue to perpetuate those inequities, those
students are going to lose.
Ms. Adams. Thank you. Dr. Canavero, the proposed rule
simply asks each LEA to come up with an allocation formula for
State and local funds, to apply that formula, and then to prove
that the Title I schools within the district receive the
funding they deserve under the LEA's own allocation formula.
Can you help me understand why this is bad or an
inequitable policy?
Mr. Canavero. Certainly, thank you, Representative Adams.
So number one, I do not think it is disputable, and I would
suggest that I think Nevada has taken great strides to ensure
that schools receive additional funds, in particular, schools
serving communities in poverty, English language learners,
insomuch as the State has passed additional funding for gifted
and talented pupils, as well as special education, or students
in special education.
The challenge we have with the regulation or the issue I
have with the regulation is trying to reconcile what it is
suggesting and offering versus the path that the State is
pursuing and the course that we have charted.
The issues related to what I find to be ambiguous language
about ``almost all'' and others related to the special rule or
the exemptions that may or may not apply.
In particular cases for me, when we look at funding English
learners in non-Title I settings, which is as we work our way
towards distributing the weight across more and more students
as we invest as a State, what we find is that the English
learners may be in concentrations of 30 percent at a non-Title
I school, and it is unclear whether or not the additional
expenses at that school within a district would have to come
down if in fact the Title I school that does not receive the EL
funding is not in locked step with that EL school.
So just recognizing the auditing of this process as was
mentioned earlier, I am having a tough time figuring out how I
would advise my districts related to auditable standard,
related to the language that, for example, high proportion or
most, I believe, versus the auditable standard that would be
applied to the language in the law, which is very similar to
the auditable standard that was created under the schoolwide
allocation for Title I schools, which is something districts
are comfortable with, States know. That seems a little bit more
predictable than the potential auditable standard that is
created or not created under the regulations.
Ms. Adams. Okay. Thank you. Mr. Owens, you argued that
allowing district administrators to override school level
decisions to ensure there is a balance. However,
superintendents are tasked with overriding school level
decisions all the time in order to balance competing demands
and make sure that all children are served.
So are there times when superintendent decisions should
override school level decisionmaking?
Mr. Owens. Thank you, Representative Adams. Certainly, the
superintendent is the last voice for children at a school
district, and if they ever exercise their authority to override
a school level decision, it should be done based on the best
interest of an individual child, not in an effort to be in
compliance with a Federal regulation.
Ms. Adams. Alright. Thank you very much. I yield back.
Chairman Rokita. I thank the gentlelady. Ms. Davis, you are
recognized for 5 minutes.
Mrs. Davis. Thank you, Mr. Chairman and ranking chairman as
well. I am very sorry that I missed all of your discussion
before this. But as a former school board member for nine
years, I am just trying to understand. Certainly, the situation
in San Diego, California is different, for example, then in
Oklahoma.
But it seems that you are asking for a very clear rule on
this, and at the same time, asking for perhaps no rule, and I
wonder if you could clarify for me what you feel is absolutely
best.
One of the things I know is that nothing makes people
crazier, of course, when they are trying to follow the rules
and having difficulty with it, and on the other hand you have
just from a governance point of view the problem of a school
board member who is trying to balance out very, very close
numbers perhaps, percentages of young people in one group or
another who need to be served, and it is minuscule in many
cases, and yet they are having to decide and direct resources.
How would you do that? Because we are struggling with this,
obviously. What needs to be done? How clear or on the other
hand, how muddled? Which makes more sense?
Mr. Owens. Thank you, Representative Davis. In my
testimony, what we suggest from Oklahoma is that the U.S.
Department of Education, if the numbers are accurate, and I do
not have the capacity to evaluate whether it is 10 percent of
schools that would be out of compliance with the special rule
or 20 percent, I do not know what that number is, but if the
number is at that 10 percent mark, would it not make more sense
for the Department of Education to provide individualized
special treatment for districts that have been identified as
not investing an appropriate amount of State and local funds in
their Title I schools because they received Title I funds,
rather than passing a sweeping regulation that impacts so many
districts that either do not fall under the rule but
nevertheless have to do the paperwork associated with it to
show they are in compliance.
I am king of a simple think, I like analogies, so for me,
it is as if we are going to buy a new car because we have a
flat tire, when we could just replace the tire.
So if we know there is just a small percentage that are out
of compliance, we should direct our energy and our effort
there.
Mrs. Davis. Mr. Sargrad, could you respond as well? Because
I think the issue that we are all grappling with is how do you
limit the inequities that children are going to experience
because funds are either going towards substitute teachers or
obviously we have teachers who are newer to teaching, and those
schools may not be getting the funds. Where do you fall on
that?
Mr. Sargrad. I think, just to do a different analogy, maybe
I would say what we want to do is to make sure just like the
FDA is responsible for ensuring that all food is safe, we want
to make sure the Federal Government has the responsibility for
making sure all districts are spending the amount of money in
their poor schools that those students deserve.
We do not tell the FDA to not monitor food safety across
the country because it might only be in a handful of places
there is a problem.
I think it is again a critical Federal role to make sure
that all districts are meeting the responsibility that the law
lays out, to say they are using the Federal funds to supplement
and not supplant the local and State dollars.
Mrs. Davis. Anybody else want to comment, especially in
terms of fairness issues? What is fair?
Ms. Gordon. Thank you. Thank you for your question,
Representative Davis. I think this is exactly the crux of the
matter is, is this rule, which is in the statute itself, so
simple that people do not realize it is a rule.
And so rather than showing - and if you go back to the July
2015 guidance that the department issued when the language now
in the law applied under No Child Left Behind schoolwide
programs - there was no kind of going back and checking the
numbers in individual schools, it was about the methodology.
So this was something Mr. Sargrad described as funds based,
but it was really about what is the methodology that you are
using to distribute the funds. It could be you have staffing
methodology and then you pay the actual salaries of the
teachers who wind up in the different schools.
So I would just refer you to that guidance to see how even
though it is one plain language sentence in the statute, it is
an auditable standard rather than the rule.
Chairman Rokita. The gentlelady's time has expired. I thank
the gentlelady. Ms. Fudge, you are recognized for 5 minutes.
Ms. Fudge. Thank you, Mr. Chairman. I sit here and listen
to them talk about congressional intent. I thought the intent
of the law was equity, that the intent of the law is to at
least give every child a fighting chance. The intent of the law
was to make sure every child has an equal opportunity to
succeed. That is the intent, so I don't know what - if maybe we
were in different meetings, but that is my recollection.
Especially as we look at schools becoming more and more
segregated across this country, and as we look at the fact that
data continues to show that poor kids are getting shortchanged,
so I do not know what we are fighting about if the real intent
of the law is equity. I just do not understand for the life of
me why if we give poor children their fair share, it is a
problem.
Mr. Sargrad, and I am going to use the words of Mr. Owens,
he indicates that if we give poor children their fair share,
the sky is going to fall, but his words, and I quote, ``It will
destroy the stability within classrooms and amongst schools,
and likely lead to the elimination of programs and initiatives
that increase student and/or parent choice.'' Do you agree with
that?
Mr. Sargrad. Thank you, Ranking Member Fudge. I do not
agree. I think that these special programs and these additional
services that Mr. Owens and Dr. Canavero have talked about,
career and technical education, arts and physical education,
those are key and they are just as key for low-income students
as they are for high-income students.
So I see no reason why non-Title I schools should have
those opportunities and Title I schools should not.
Ms. Fudge. Let me further ask this question. For what
reason would schools not want to give us this information?
Mr. Sargrad. I cannot see a reason why they would not want
to. I think the information is certainly complicated, and I
think Congress was right to include new transparency
requirements in the law around this kind of spending.
And so, with those requirements, school districts are going
to need to be more transparent around spending, and that will
help them comply with this new supplement not supplant
requirement.
Ms. Fudge. What do you believe the intent of the law was,
Mr. Sargrad?
Mr. Sargrad. I think the intent is very clear, to protect
equity and improve achievement for all students, and
particularly, disadvantaged students.
Ms. Fudge. Okay. Dr. Canavero and Mr. Owens, you have both
testified that the new standard for compliance in the proposed
rule is unacceptable. I have not heard either of you suggest
what an acceptable standard would be. I can assure you it was
not Congress' intent to allow compliance with this important
requirement to be subject to the whims of more than 15,000
school districts.
So what in your judgment is a satisfactory standard? Dr.
Canavero and then Mr. Owens.
Mr. Canavero. Thank you, Ranking Member Fudge. You know, I
go back to some comments that Mr. Owens made in relation to the
issue and the problem statement that is being attempted to
solve here through this policy. I do not believe anybody or at
least I do not disagree that additional funding is necessary
and I think the track record in our State demonstrates that is
something we support, and that all students absolutely
fundamentally deserve an opportunity to succeed and claim those
opportunities in the future.
What would be a reasonable standard, I think, is what you
are asking.
Ms. Fudge. That is the question.
Mr. Canavero. It is related to, I think, honing in,
utilizing the data that are available, and I tried to find the
dataset and I could not, I would love to find it if someone can
send it to me, utilizing the dataset that is available to
attack the problem.
If there is a problem of inequitable spending in 10 percent
of the school districts, utilizing the very policy and
enforcement action available to U.S. Ed to get after that--
Ms. Fudge. What is the answer? You are reciting the
problem. What is the answer? Mr. Owens, do you have an answer?
Mr. Owens. Thank you, Ranking Member Fudge. I believe that
is the answer, if the department--
Ms. Fudge. And you would do it how? Tell me how you would
do that if that is the answer.
Mr. Owens. You could use the language from the statute
itself where the LEA has to demonstrate to the State Department
of Education that each Title I school received at least as much
State and local funds as it would have otherwise received
absent its status as Title I.
Ms. Fudge. Is that not the same thing the rule says?
Mr. Owens. Well, the rule has a heavy focus on the spending
within Title I schools and non-Title I schools as adjusted for
personnel or per pupil, and without auditable standards around
what that looks like, there is confusion at the district level
as to how the State will interpret. There is confusion at the
State level as to how the Federal department will interpret.
Ms. Fudge. Thank you, Mr. Owens, but what I am hearing you
saying is what the rule is saying. Thank you so much all of you
for your testimony. Mr. Chairman, I yield back.
Chairman Rokita. I thank the gentlelady. The gentlelady is
recognized for her closing.
Ms. Fudge. Thank you, Mr. Chairman. I thank you for this
hearing today. I thank you all for being here. I would like,
Mr. Chairman, to submit for the record a letter from a
coalition of 31 civil rights education and child welfare
organizations in support of the department's original proposed
supplement not supplant regulation.
Chairman Rokita. Without objection.
Ms. Fudge. Thank you, Mr. Chairman. With that, I would just
suggest this. If in fact the intent is what we have all agreed
it is, just as we have talked at least from my perspective,
then I would hope that we would not continue to shortchange
students because we do not want to fill out a piece of paper. I
yield back, Mr. Chairman.
Chairman Rokita. I thank the gentlelady. Let me again thank
the witnesses for their testimony. From my perspective, it is
pretty clear again what Congress' intent was. We had these
discussions. We agreed on a solution. Some amendments were
filed. Some were successful, some were not.
What is not at issue here is congressional intent and what
the law is, regardless of any one person's or one
organization's or 31 organizations' opinion.
We are either going to live in a country where we all are
equal under the law, and the law is followed, or we are going
to live in a country that is dictated by bureaucrats, which one
is it going to be? We are all after the same goal, and that is
equity and that is improving the lives of our best and most
precious asset, our children. No one disputes that. No one is
not trying to get that done.
And again, we agreed on what the new approach should be,
and it is nothing at all what the Department of Education is
now trying to propose and the authority it is trying to usurp.
I want to go back, again, to this issue of congressional
intent. We understand that executive agencies are responsible
for implementing the laws, not making them. They are not
allowed to take the plain language of statutes and rewrite it.
And I want to direct everyone in the room back to the
screen. On the screen, this came up in my questioning as well,
it is the 2012 recommendation from the Center for American
Progress and the American Enterprise Institute. Reading the
last half, it says, quote, ``If districts can document that the
manner in which they allocate State and local resources to
schools is Title I neutral, they should be clear of suspicion
around supplanting non-Federal funds with Title I dollars.''
Right?
A left leaning group and a right leaning group came
together and agreed that this makes sense, why? For the benefit
of our children.
The next slide on the screen is the statutory language from
the Every Student Succeeds Act that Congress again adopted and
the President signed in response to this recommendation. It
says, quote, ``To demonstrate compliance with paragraph one, 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'' meaning
Title I, close quote.
And finally, the next slide is the Senate committee report
produced by Ranking Member Murray and Chairman Alexander. Most
of us participated in that conference committee. It explained
the congressional intent. It says, quote ``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,'' close quote.
So the statutory language says that the school districts
will be considered in compliance with supplement not supplant
if they can demonstrate that the method, to Dr. Gordon's point,
that the method they use to allocate funds does not consider
whether or not a school receives Title I funds. The statute
very specifically does not require any particular funding
outcome, Mr. Sargrad. That is the law. That is what we
intended.
Funding outcomes are not considered here. and there is
nothing in the statute or the history of this provision to
support what the department is proposing.
Again, I want to thank the witnesses for their testimony.
When we negotiated this final legislative language and the
President signed it, I thought we were out to a good start. I
thought we were really breaking ground. I still think that
today. I am optimistic. The leadership here, by all four of
you, is emblematic of that. And you are going to be on the
front lines of this.
I do not believe that Washington has better answers than
you do, especially you, Dr. Canavero, and you, Mr. Owens. You
have the right intent, you have the right heart and the right
brains for this kind of work, and the colleagues that you
represent. And that is what we intended in Congress, is to give
you that responsibility and that authority back to protect and
grow our best assets.
And that is why we are going to continue this approach, and
we are going to continue in this oversight phase of ESSA to
make sure that we remain a country where all of us live under
law that were passed by this body and not the Executive Branch.
Thank you very much for your time today. This hearing is
adjourned, seeing no other business before it.
[Whereupon, at 11:43 a.m., the subcommittee was adjourned.]
[Additional submissions by Ms. Fudge follows:]
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