[Senate Hearing 114-758]
[From the U.S. Government Publishing Office]




                                                          S. H. 114-758
 
 ESSA IMPLEMENTATION IN STATES AND SCHOOL DISTRICTS: PERSPECTIVES FROM 
                    THE U.S. SECRETARY OF EDUCATION

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                                   ON

   EXAMINING EVERY STUDENT SUCCEEDS ACT IMPLEMENTATION IN STATES AND 
   SCHOOL DISTRICTS, FOCUSING ON PERSPECTIVES FROM THE SECRETARY OF 
                               EDUCATION

                               __________

                             APRIL 12, 2016

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and Pensions
 
 
 
 
 
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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  LAMAR ALEXANDER, Tennessee, Chairman

MICHAEL B. ENZI, Wyoming           PATTY MURRAY, Washington
RICHARD BURR, North Carolina       BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia            BERNARD SANDERS (I), Vermont
RAND PAUL, Kentucky                ROBERT P. CASEY, JR., Pennsylvania
SUSAN COLLINS, Maine               AL FRANKEN, Minnesota
LISA MURKOWSKI, Alaska             MICHAEL F. BENNET, Colorado
MARK KIRK, Illinois                SHELDON WHITEHOUSE, Rhode Island
TIM SCOTT, South Carolina          TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah               CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas                ELIZABETH WARREN, Massachusetts
BILL CASSIDY, M.D., Louisiana

                       
                                       

               David P. Cleary, Republican Staff Director

         Lindsey Ward Seidman, Republican Deputy Staff Director

                  Evan Schatz, Minority Staff Director

              John Righter, Minority Deputy Staff Director

                                  (ii)

  




                            C O N T E N T S

                               __________

                               STATEMENTS

                        TUESDAY, APRIL 12, 2016

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Murray, Hon. Patty, a U.S. Senator from the State of Washington..     4
Burr, Hon. Richard, a U.S. Senator from the State of North 
  Carolina.......................................................    14
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    16
Bennet, Hon. Michael F., a U.S. Senator from the State of 
  Colorado.......................................................    18
Warren, Hon. Elizabeth, a U.S. Senator from the State of 
  Massachusetts..................................................    19
Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana...    21
Murphy, Hon. Christopher, a U.S. Senator from the State of 
  Connecticut....................................................    23
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................    25
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska....    26
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    28

                                Witness

King, Hon. John B., Jr., Ph.D., Secretary, Department of 
  Education......................................................     6
    Prepared Statement...........................................     8

                                 (iii)

  


 ESSA IMPLEMENTATION IN STATES AND SCHOOL DISTRICTS: PERSPECTIVES FROM 
                    THE U.S. SECRETARY OF EDUCATION

                              ----------                              


                        TUESDAY, APRIL 12, 2016

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:07 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Lamar 
Alexander, chairman of the committee, presiding.
    Present: Senators Alexander, Murray, Burr, Murkowski, 
Scott, Cassidy, Casey, Franken, Bennet, Whitehouse, Murphy, and 
Warren.

                 Opening Statement of Senator Alexander

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order. Senator Murray 
and I will each have an opening statement, and then we'll 
introduce our witness. After our witness testimony, Senators 
will have 5 minutes of questions.
    Welcome, Mr. Secretary. Thank you for being here.
    Mr. Secretary, I urged the President to appoint an 
Education Secretary because I thought it was important to have 
a confirmed Secretary accountable to the U.S. Senate when the 
Department was implementing the new law fixing No Child Left 
Behind. You've sworn to discharge your duties faithfully--
that's your oath of office--and you've said in hearings here 
that you would, ``abide by the letter of the law.'' This 
hearing is about whether your employees are doing that or not 
doing that.
    I don't think I need to rehearse the fact that this bill 
passed by a huge margin, 359 to 64 in the House and 85 to 12 in 
the Senate. The President signed it and called it a Christmas 
miracle. The reason we were able to achieve such unusual 
unanimity and consensus is, to put it bluntly, that local 
school boards, classroom teachers, and States had gotten tired 
of the U.S. Department of Education telling them so much about 
what to do.
    That wasn't just Republicans complaining or Governors 
complaining. You often hear that kind of thing when it comes to 
giving responsibility to those closest to the children. This 
came from the school superintendents, from the National 
Education Association, from the American Federation of 
Teachers, from the chief State school officers--almost 
everybody involved in education. There hasn't been a broader 
coalition in a long time.
    They objected to the fact that the Department had become a 
national school board, telling Kansas what its academic 
standards had to be, telling Tennessee how to fix failing 
schools, telling Washington State how to evaluate teachers. The 
legislation we passed not only got rid of those things, but we 
went further in a remarkable way and have explicit prohibitions 
on what a future Secretary might do.
    This was all a dramatic change. It's called the biggest 
devolution of responsibility for education from the Federal 
Government to States in 25 years. It's not worth the paper it's 
printed on if it's not implemented properly.
    This is the second hearing in what will be at least six 
hearings on oversight of the implementation of the new law. 
Already, we're seeing disturbing evidence that the Department 
of Education is ignoring the law that the 22 members of this 
committee worked so hard to craft.
    It wasn't easy to pass the law. There were crocodiles 
lurking in every corner of the pond. One of those--and I see 
Senator Bennet here, and we've had vigorous discussions over 
this--was called the issue of comparability. That's a provision 
that was put into the law first in 1970 that says that school 
districts have to provide at least comparable services with 
State and local funding to title I schools and non-title I 
schools.
    The law also says that school districts, quote, ``shall not 
include teacher pay when they measure spending for purposes of 
comparability.'' This committee has debated several times 
whether or not teacher pay should be excluded. Senator Bennet, 
for example, not only felt strongly about this, but he had a 
proposal to change it. It wasn't adopted. I felt strongly about 
it. I offered an amendment to change it. It was defeated.
    Ultimately, we made two decisions about this issue as 
reflected in the law we passed last year. First, we chose not 
to change the comparability language in the law, so the law 
still says teacher pay may not be included in that computation. 
Second, we added a reporting requirement that school districts 
should report the amount they spend on each student, including 
teacher salaries, so that parents and teachers could know what 
is being spent and could make their own decisions about what is 
fair and what is equitable, rather than the Federal Government 
mandating it.
    The one thing that the law that the President signed in 
December did not do was change the law that says teacher 
salaries may not be included when you're computing 
comparability. Here's what your department did on April 1. You 
tried to do what Congress did not do last year, and you tried 
to do it by regulating another separate provision in the law.
    In a proposed rulemaking session, here's what you proposed: 
forcing districts to include teacher salaries in how they 
measure their State and local spending and require that State 
and local spending in title I schools be at least equal to the 
average spent in non-title I schools.
    If that were adopted, your proposal would require a 
complete, costly overhaul of almost all the State and local 
finance systems in the country, something we did not pass in 
the law. It would force teachers to transfer to new schools, 
something we did not pass in the law. It would require States 
and school districts to move back to the burdensome practice of 
detailing every individual cost when the purpose of the law as 
expressly written was to relieve some of that burden.
    According to the Council of Great City Schools, your 
proposed rule would cost $3.9 billion just for their 69 urban 
school districts to eliminate the differences in spending 
between schools. I'm not interested today in debating whether 
it's a good idea or a bad idea to include teacher salaries when 
computing comparability. The plain fact is that the law 
specifically says the Department on its own cannot do it.
    Mr. Secretary, not only is what you're doing against the 
law, but the way you're trying to do it is against another 
provision in the law. To accomplish your goals on 
comparability, you are using the so-called ``supplement not 
supplant'' provision that is supposed to keep local school 
districts from using Federal title I dollars as a replacement 
for State and local dollars in low-income schools.
    According to a Politico story published on December 18, the 
former Secretary of Education said, ``Candidly, our lawyers are 
much smarter than many of the folks who were working on this 
bill,''. I don't know whether that means the 22 Senators on the 
committee or all the staff sitting behind us. I'm not sure how 
smart we are, but we're smart enough to write a law in plain 
English, and we're also smart enough to anticipate that your 
lawyers would attempt to ignore what we wrote and try to move 
around it.
    We included specific prohibitions in the so-called 
supplement not supplant provision that would prohibit you from 
doing the very things you are proposing to do.
    Section 1118(b)(4) says,

          ``Nothing in this section shall be construed to 
        authorize or permit the Secretary to prescribe the 
        specific methodology a local educational agency uses to 
        allocate State and local funds,''

and section 1605 says, ``Nothing in this title shall be 
construed to mandate equalized spending.''
    Mr. Secretary, I'll have more to say about this in my 
question time, and I'm going to ask you about this. I want you 
to know and, particularly, those lawyers who think none of us 
are very smart up here--I want them to know that I'm smart 
enough, and I believe there are others, too, to use every power 
we have to make sure the law is implemented the way we wrote 
it, including our ability to overturn such rules when they 
become final, and including using the appropriations process.
    If you try to force States to follow these regulations that 
ignore the law, I'll encourage them to request a hearing, which 
they have a right to do, with the Department. If they lose, 
I'll encourage them to go to court.
    I'm not the only one who can read the law. You're going to 
come up against a coalition that's as broad as anything we've 
ever had in education of Governors, teachers organizations, 
chief State school officers who are tired of your Department 
telling them so much about what to do about the 50 million 
children and 100,000 public schools. They've already sent you a 
letter about that.
    Wisconsin Superintendent Tony Evers, a well-respected State 
chief school officer and a member of the rulemaking committee, 
said last week that congressional intent isn't necessarily 
being followed here. The School Superintendents Association 
says that the prohibitions in the law, in tandem with Congress' 
deliberate act of leaving comparability unchanged, makes a 
seemingly tight case against expanding supplement not supplant.
    You've testified here that you will abide by the letter of 
the law. It's not abiding by the letter of the law to require 
local school districts to use teacher salaries and equalize 
spending between title I and non-title I schools. It's not 
abiding by the letter of the law to use supplement not supplant 
provisions to achieve your goals for comparability when 
Congress debated this issue and chose to not make any changes 
in the law.
    I'm making such a point of this today because we're at the 
beginning of the implementation of a law that affects, as I 
said, 3.4 million teachers and 50 million students in 100,000 
public schools. The States are busy working on their plans for 
title I money. They have a clear law that changes the direction 
of what Federal policy is.
    I'm determined to see that the law is implemented the way 
we wrote it. It's important at the beginning of this 
implementation to make sure that you as well as those who work 
for you in the Department understand that. They are not elected 
to anything, and you are confirmed by the U.S. Senate to 
faithfully execute the laws, and you said you will abide by the 
letter of the law in your confirmation proceeding, and I expect 
that to be the case.
    Senator Murray.

                  Opening Statement of Senator Murray

    Senator Murray. Thank you, Mr. Chairman.
    Secretary King, thank you for being here today. This is an 
important time for the Department of Education, from expanding 
access to pre-K for our youngest learners to helping students 
and families with growing college costs, and, of course, as you 
are working hard to implement the new K-12 law.
    I remember hearing from a parent named Duncan Taylor last 
year. His son is in school at Highline Public Schools in 
Washington State. He's an active member of the PTA and 
volunteers in his son's school that serves students from very 
diverse backgrounds. He said he saw up close and personal how 
No Child Left Behind wasn't working for teachers and students 
in the classroom, and it wasn't working for schools or our 
communities.
    Here in Congress, on an issue as important as education and 
on a law as broken as No Child Left Behind, we were able to 
work together, break through the gridlock, and pass the Every 
Student Succeeds Act with strong bipartisan support.
    As a reminder, here is what our law does: The Every Student 
Succeeds Act gives States more flexibility. It also includes 
strong Federal guardrails for States as they design their 
accountability systems. It preserves the Department's role to 
implement and enforce the law's Federal requirements and, 
importantly, reduces reliance on high-stakes testing, and it 
makes significant new investments to improve and expand access 
to preschool for our Nation's youngest learners, to name just a 
few provisions in the law.
    Reauthorizing this law was not the finish line. It was a 
starting point for the Department and for our schools, 
districts, and States to begin the hard work of transitioning 
away from No Child Left Behind and to turn the page. While the 
Department goes through this process and as States develop new 
systems and polices, I will be closely monitoring several 
issues to make sure our law lives up to its intent to provide 
all students with a high-quality education.
    The Elementary and Secondary Education Act is, at its 
heart, a civil rights law. We know from experience that without 
strong accountability, kids from low-income neighborhoods, 
students of color, kids with disabilities, and students 
learning English too often fall through the cracks. I expect 
the Department to use its full authority under the Every 
Student Succeeds Act to make sure every student does have 
access to a quality education.
    While we were writing this law, we were deliberate on 
granting the Department the authority to regulate on the law 
and hold schools and States accountable for education.
    That includes things such as ensuring States and districts 
take action every year to improve student achievement in any 
school that has groups of students who are not achieving 
academically.
    It includes enforcing the State-level cap on the use of 
simplified alternate assessments for students with the most 
significant cognitive disabilities and ensuring Individual 
Education Program, or IEP, teams have the tools they need to 
identify which students with a disability should take that 
assessment. I will be taking a close look at any guidance or 
regulations from the Department for school interventions and 
supports which will be critical to helping low-performing 
schools improve.
    In March, the Leadership Conference on Civil and Human 
Rights and 54 civil rights organizations sent a letter to the 
Department on the importance of accountability and the 
authority of the Department to regulate on this and other 
critical issues. I want to underscore what they wrote, 
particularly about the Department's vital role to make sure 
this law,

          ``includes serious protections for vulnerable 
        students and creates important leverage for parents, 
        communities, and advocates to continue their push for 
        equity and accountability for all students.''

    The letter further states that the law is clear. The 
Department has the authority and responsibility to issue 
regulations and guidance and to provide guidance and technical 
assistance for the implementation of the Every Student Succeeds 
Act.
    And, finally, I will continue to be very focused on the 
competitive grant program to expand access to high-quality 
preschool. That means the Department of Health and Human 
Services should work closely with the Department of Education 
so more students get the chance to start kindergarten ready to 
learn. It's up to all of us to uphold the legacy and promise in 
the Every Student Succeeds Act.
    Dr. King, I'm looking forward to hearing from you on the 
steps needed to implement the new bipartisan law in a way that 
will help provide a quality education to all of our children.
    Thank you very much.
    The Chairman. Thank you, Senator Murray.
    I'm pleased to welcome the United States Secretary of 
Education to our hearing today. I'd like to thank him for being 
here. He has a busy schedule. I'm pleased to introduce Dr. John 
King, Jr., who was confirmed March 14th. Prior to becoming 
Secretary, Dr. King served as Commissioner of Education for the 
State of New York, overseeing not only the State's elementary 
and secondary schools but institutions of higher education and 
numerous other educational institutions.
    He has also served as a Managing Director for a nonprofit 
charter management organization, Uncommon Schools, and as a co-
founder and co-director for curriculum and instruction of 
Roxbury, MA, Preparatory Charter School.
    Dr. King, welcome.

    STATEMENT OF HON. JOHN B. KING, Jr., Ph.D., SECRETARY, 
                    DEPARTMENT OF EDUCATION

    Secretary King. Thank you so much. Chairman Alexander, 
Ranking Member Murray, and members of the committee, thank you 
for inviting me to speak about how the Department of Education 
intends to implement the Every Student Succeeds Act. I commend 
Congress for passing this law with strong bipartisan support.
    The passage of this law is a major accomplishment as we 
build on efforts to expand educational excellence and equity in 
partnership with States, districts, communities, and educators. 
ESSA presents us with a moment of both opportunity and moral 
responsibility. The new law reauthorizes the original 
Elementary and Secondary Education Act of 1965, which was a 
civil rights law that must be viewed in the context of the 
Civil Rights Act of 1964 and the Voting Rights Act of 1965.
    Responsibility to ensure that implementation of the new law 
lives up to its civil rights heritage rests with leaders in 
States and with all of us. ESSA advances equity by upholding 
critical protections and maintaining dedicated resources for 
America's most disadvantaged students. Importantly, the law 
maintains expectations, and action will be taken to improve 
opportunities for students in schools that chronically 
underperform, that do not improve low graduation rates, and 
that do not ensure progress for all student groups.
    The new law also embodies much of what the Obama 
administration has supported over the last 7 years. For the 
first time, ESSA enshrines in law high, State-chosen learning 
standards that will prepare all students for college and 
careers. The law supports local innovation and builds on the 
Administration's historic investments in quality preschool.
    ESSA also requires that information on student progress is 
shared through annual statewide assessments while supporting 
State efforts to reduce and improve State and local tests. 
Importantly, ESSA builds on work already underway to raise 
expectations for students and establish locally tailored 
systems for school improvement in States.
    The law rightly shifts responsibility for developing 
strategies to support the highest-need students and schools to 
State and local decisionmakers and away from the one-size-fits-
all mandate of No Child Left Behind. It creates opportunities 
for States to reclaim the goal of a rigorous, well-rounded 
education for every child.
    At the same time, ESSA maintains a crucial Federal role in 
constructing guardrails to protect our children's civil rights. 
We take that responsibility very seriously. ESSA is an 
important and complex law with new pieces related to data 
reporting, accountability, support systems and programs. At the 
Federal level, our role is supporting States and districts to 
improve opportunity for students, investing in research and 
scaling what works, ensuring transparency, and providing 
safeguards to ensure educational equity.
    Ultimately, we all want quality implementation of the law 
that builds on the progress of the last decade and supports 
States, districts, and schools in helping every student to 
succeed.
    ESSA implementation will require an incredible amount of 
work to know how to best support States, districts, and 
educators. We've sought input on areas in need of regulation, 
guidance, and technical assistance and received lots of 
feedback via our notice in the Federal Register, public 
meetings, and ongoing outreach to stakeholders. At the same 
time, the Department is engaging in this process with an 
understanding that we cannot and, indeed, should not attempt to 
provide guidance or regulations for every area of law where 
ambiguity exists.
    We are prioritizing where our support for implementation is 
most needed. For example, we plan to issue guidance in late 
summer or early fall on the changes in the law that impacts 
some of our most vulnerable students, homeless students, 
students in foster care, and English learners, and to encourage 
best practices as States and districts make use of some of the 
new funding opportunities in the law.
    Most recently, the Department engaged in negotiated 
rulemaking on assessments and the requirement that Federal 
title I funds be used to supplement not supplant State and 
local investments in education. The Department has proposed 
regulatory text that would support States and districts in 
measuring the progress of all students, including our students 
with disabilities and English learners, by ensuring that annual 
statewide assessments are valid, reliable, fair, and of high 
technical quality so that schools can provide good information 
on student performance for parents and educators.
    The Department also proposed regulatory text that would 
support States and districts in measuring the progress of all 
students and that would help ensure that title I funds are 
truly supplemental while also maintaining district flexibility 
to choose their own methodology to allocate State and local 
funds. The sessions have been productive, and we hope the final 
outcome will be a set of regulations that support high-quality 
implementation of the new law and protect equity and 
transparency.
    In addition, we recently announced that we will begin the 
regulatory process on accountability, which would include 
components relating to reporting and consolidated State plan 
submission and the new title I, part B innovative assessment 
demonstration authority. These regulations will respond to some 
of the key areas in which the Department received public 
comment and on which regulations would serve to support 
implementation.
    For example, we seek to leverage the consolidated aspect of 
State plans to streamline requirements, reduce burden on 
States, and encourage them to think comprehensively about 
systems and supports across programs. That's the type of 
approach that I know I would have found helpful when I was a 
State chief.
    As we continue to meet with stakeholders to identify other 
areas where guidance and technical assistance may be needed, we 
look forward to a robust discussion on the new law. Education 
is the path to quality and opportunity that is at the heart of 
the American dream, and together we can ensure the dream is 
within reach for every child.
    Thank you. I'm glad to take your questions.
    [The prepared statement of Secretary King follows:]

          Prepared Statement of Hon. John B. King, Jr., Ph.D.
    Thank you Chairman Alexander, Ranking Member Murray, and members of 
the committee. I appreciate the invitation to testify today regarding 
how we are implementing the Every Student Succeeds Act (ESSA), which 
the President signed into law on December 10, 2015.
    I have seen and lived the hard work and challenges faced by State 
leaders, principals, teachers, and other educators at all levels of our 
education system. And I have no greater responsibility than supporting 
their efforts to ensure that all children, regardless of where they 
live or their background, receive the education they need to succeed in 
school and in life.
    I want to take a moment to acknowledge the hard work of this 
committee in passing this law, and thank you for your work. In an era 
when bipartisan successes are too few and far between, you and your 
staff worked tirelessly to reauthorize an outdated piece of 
legislation, compromising where needed and always keeping the focus on 
what was best for kids. That is a great testament to each of you and 
particularly to the leadership of Chairman Alexander and Ranking Member 
Murray.
    My colleagues will tell you that as a former social studies 
teacher, I rarely miss an opportunity to put our work in its historical 
context. As you all know, the Every Student Succeeds Act reauthorized 
the original Elementary and Secondary Education Act (ESEA), which was 
signed by President Lyndon Johnson in 1965. From its inception, ESEA 
was a civil rights law. It was signed into law following the Civil 
Rights Act of 1964, and in the same year as the Voting Rights Act of 
1965, by a President who believed that ``full educational opportunity'' 
should be ``our first national goal.'' ESSA honors the law's civil 
rights heritage, and the responsibility to ensure that its 
implementation also honors that heritage rests with each State, 
district, and school--but also with all of us here.
    ESSA advances equity by upholding critical protections for 
America's disadvantaged students. The law maintains dedicated resources 
and supports for students from low-income families, students with 
disabilities, English learners, Native American students, foster and 
homeless youth, and migrant and seasonal farmworker children. What's 
more, the law maintains the expectation that, in schools where students 
chronically underperform, in high schools that have low graduation 
rates over extended periods of time, and in schools where groups of 
students are not making progress, action will be undertaken to improve 
opportunities for students. With ESSA, Congress has reinforced the 
Federal commitment to holding our Nation's schools accountable for the 
progress of all students, while striking a new, improved Federal-State 
partnership that moves away from the one-size fits all approach of No 
Child Left Behind (NCLB).
    ESSA also reflects many of the priorities that this Administration 
has put forward over the last 7 years, moving forward a vision grounded 
in equity--to ensure that every young person in America receives an 
education that will prepare him or her with the knowledge and skills 
needed to succeed in college and future careers. It creates high 
expectations for students and for schools, and it invests in local 
innovation--including evidence-based and place-based interventions--
consistent with many of our Administration's ideas and priorities. The 
law requires that all students in America be taught to high academic 
standards and shares vital information about their progress and 
performance with educators, families, students, and communities on an 
annual basis, through statewide assessments. ESSA also encourages a 
smarter approach to testing, moving away from a sole focus on 
standardized tests to drive decisions around the quality of schools and 
allowing for the use of multiple measures of student learning and 
progress--along with other indicators of student success--to make 
school accountability decisions. Our Administration is pleased that 
ESSA includes provisions consistent with President Obama's principles 
around reducing the amount of classroom time spent on standardized 
testing, encouraging States to limit the amount of learning time 
devoted to these assessments and supporting efforts to audit, 
streamline and improve assessments at the State and local level.
    In addition, this new law builds on the work already underway in 
States to raise expectations for students, develop their own strong 
State systems for school improvement, particularly in the lowest-
performing schools and schools with chronically low graduation rates, 
and drive opportunity and better outcomes for every child. ESSA 
empowers State and local decisionmakers to develop their own strategies 
for supporting the students and schools most in need based on evidence, 
rather than imposing the top-down approach of NCLB. By providing States 
and districts with more flexibility to innovate and implement locally 
driven reforms, ESSA moves beyond NCLB in a way that will drive 
stronger outcomes for all kids.
    The new law builds on and sustains our historic investments in 
increasing access to high-quality preschool--one of the most powerful 
things we can do to ensure opportunity for students, by giving our 
youngest learners a strong start. And it creates an opportunity for 
States to reclaim the goal of a well-rounded education for all 
students. We have long understood that English Language Arts and Math 
test scores alone do not tell us all we need to know about our 
students' progress, or their readiness for college and careers. Under 
the new law, States have an opportunity to broaden how they consider 
what makes a school successful for the 21st century while maintaining 
focus on key academic outcomes. That may mean States measuring how 
students--all students--are doing in Advanced Placement and 
International Baccalaureate courses. It may mean States taking a closer 
look at chronic absenteeism, post-secondary enrollment, placement in 
remedial college coursework, or school climate as additional measures 
of how schools are serving all students.
    The possibilities are exciting and expansive, but their real-world 
impact for children will depend on implementation. And that is what you 
have invited me here today to discuss. So let me speak briefly about 
the Federal role in education. Education is, and should remain, 
primarily a State and local responsibility. What we do at the Federal 
level is support States and districts to improve opportunity for all 
students, invest in local innovation, research and scale what works, 
ensure transparency, and protect our students' civil rights, providing 
guardrails to ensure educational opportunity for all children.
    We at the Department take that responsibility very seriously. This 
is an important and complex law, with a lot of new pieces--new data-
reporting requirements, new opportunities for state-designed 
accountability and support systems, new programs. Everyone--from the 
parent whose first child just enrolled in pre-school to the district 
superintendent--has questions about how this all comes together in 
practice. As someone who is a parent of public school children, and who 
has been a teacher, a principal, and a State commissioner of education, 
I can tell you that the prospect of a new law of this magnitude and 
scope is both exciting and daunting. There is an incredible amount of 
work to be done at all levels to implement the law.
    That is why, since the bill was signed into law, we have been 
listening to the many stakeholders who care about implementation--
including civil rights leaders, teacher and principal representatives, 
State and school district leaders, parents and many others--to hear 
their questions and concerns and identify where regulations, guidance, 
or technical assistance might be most needed. We published in the 
Federal Register on December 22nd a request for information, broadly 
seeking input on areas in title I in need of regulation. And as part of 
that notice, we held two regional meetings to seek public input: one on 
January 11th in Washington, DC, and one on January 19th in Los Angeles. 
In response to our notice, we received hundreds of comments, submitted 
on behalf of approximately 1,000 groups and individuals. We heard from 
teachers, principals, and other school leaders. We heard from State 
chiefs and district superintendents, from parents and students. In 
addition, over the past several months, we have held well over 100 
meetings with stakeholders from across the education system, including 
parents and teachers, school leaders, State officials, and civil rights 
groups, to listen to their thoughts and concerns about implementation 
of the ESSA.
    In general, the comments reflected support for the new law. Many 
commenters expressed the need for regulations and guidance from the 
Department in order to better understand how to implement the 
provisions of the new law by July 2017. Among the most common areas of 
interest were: accountability, assessments, school improvement, data 
reporting, fiscal requirements, consolidated State plans, and family 
engagement. For example, the Leadership Conference on Civil and Human 
Rights, along with 36 other civil rights organizations, recommended 
that the Department promulgate regulations relating to, the 1 percent 
cap on the alternate assessment for students with the most significant 
cognitive disabilities (including criteria for a waiver of that cap), 
and the inclusion of English learners in content assessments. The 
National Education Association requested that the Department regulate 
on data requirements relating to compliance with the requirement that 
funds under title I, part A be used to supplement, and not to supplant, 
State and local funds. The Business Roundtable called on the Department 
to ensure that there is regulatory guidance in place to prevent student 
achievement gaps from growing and students from exiting high school 
ill-equipped to succeed in college and the workplace. Department of 
Education staff at all levels are continuing to meet with groups, and 
engage in listening sessions across the country, from rural communities 
north of Seattle in Washington State to Columbia, SC.
    We also are looking across our existing regulations and guidance to 
figure out what is still useful and what needs to be updated. We know 
that States, districts, and educators are eager to move forward with 
implementing the new law, and we want to be responsive to that sense of 
urgency. When it comes to building new systems, the 2017-18 school year 
is actually not that far away. To that end, on February 4th, we 
published a notice announcing our intent to engage in negotiated 
rulemaking on assessments under ESEA section 1111(b)(2) relating to 
statewide assessments, and the requirement under section 1118(b) of the 
ESEA that Title I, Part A funds be used to supplement, and not 
supplant, State and local funds. The negotiation sessions began in late 
March and will continue through April 19 at the Department of 
Education, and are open to the public. The negotiating committee 
represents a wide range of constituencies, including parents, State and 
district administrators, teachers, principals, other school leaders 
(including charter school leaders), paraprofessionals, tribal 
leadership, and members of the civil rights and business communities. 
The Department has proposed regulatory text that would support States 
and districts in measuring the progress of all students, including our 
students with disabilities and English Learners, by ensuring that 
annual statewide assessments are valid, reliable, fair, and of high 
technical quality, so that schools can provide good information on 
student performance for parents and educators. The Department's 
proposal with regard to ``supplement, not supplant''--based on feedback 
from the committee--will help districts ensure that title I funds are 
truly supplemental, while also maintaining districts' authority to 
choose their own methodology to allocate State and local funds. The 
sessions have been productive and we hope that the final outcome will 
be a set of regulations--which will also be subject to public notice 
and comment before they are final--that support high-quality 
implementation of the new law and protect equity and transparency, 
particularly for our most vulnerable student populations.
    In addition, we recently announced that we will begin the 
regulatory process on accountability, which would include components 
relating to reporting and consolidated State plan submission and the 
new title I, part B innovative assessment demonstration authority. As 
part of this process, the Department will put out proposed regulations 
for public comment this summer, with a goal of releasing final 
regulations by late fall to support full implementation of the law by 
2017-18. These regulations will respond to some of the key areas in 
which the Department received public comment, and on which regulations 
may serve to support implementation. For example, the law allows for 
States to submit consolidated State plans, but historically this 
exercise has involved submitting various different plans stapled 
together. Through regulation, we will seek to leverage the consolidated 
aspect of these plans to streamline requirements, reduce burden on 
States, and encourage them to think comprehensively about systems and 
supports across programs. As a former State chief, I know I would have 
found this approach very helpful, and I am glad we will be able to do 
this.
    We also recognize the need to provide guidance on how States and 
local districts may implement the many provisions throughout ESSA. We 
are early in this process, as we are still receiving feedback from 
across the country and plan to continue to meet with stakeholders in 
the coming months to help identify the appropriate areas in which 
guidance might be useful.
    I want to underscore that the Department is engaging in this 
process with an understanding that we cannot, and indeed should not, 
attempt to provide guidance or regulations for every area of the law 
where ambiguity exists. We are focusing on the things that matter the 
most.
    Through the rulemaking process, we have directed our attention to 
three areas where we believe it is critical to provide clarity to 
States, districts, and schools: assessments; accountability; and the 
equitable allocation of resources. And I assure you that we will take 
seriously and give every consideration to the feedback we receive 
through the notice-and-comment period.
    Our goal is a renewed Federal-State partnership that will support 
local school districts and their schools in their charge of helping 
every student succeed. As we announced in December, our Nation's 
graduation rate is at a record-high 82 percent, but achievement gaps 
persist and too many students complete their schooling without the 
knowledge and skills needed for future success. We need to keep the 
progress going for all kids, and so we are going to keep the 
conversation going--with stakeholders at every level, and with all of 
you here. And as we hear from the field, we will continue to identify 
opportunities to support our States and districts through regulations, 
guidance, and technical assistance where it is most useful.
    Ensuring a world-class education for every child is both a 
demanding challenge and an urgent imperative for our Nation, our 
communities, and our children. I know that members of the committee 
share those beliefs--and I look forward to continuing to work with this 
committee to ensure that in America, education is, as it must be, the 
great equalizer.
    Thank you, and I am happy to answer any questions that you have.

    The Chairman. Thank you, Dr. King. We'll now have a round 
of 5-minute questions. I'll try to stick close to the 5-minutes 
and hope others will as well.
    Preliminarily, Dr. King, we're talking about title I plans. 
Title I are Federal dollars States may apply for, submitting a 
plan, and that constitute about 4 percent of all the money that 
State and local governments spend on 100,000 public schools. 
There's more Federal money than that, but it's not covered by 
title I. We're talking about for that amount of money what 
instructions you can give.
    And, second, I would ask you this. You mentioned guidances 
coming out later. You agree, do you not, that guidances are 
merely illustrative and are not intended to be legally binding 
upon local school districts?
    Secretary King. That's right. As we've discussed, guidance 
is intended to provide clarity and to provide examples of best 
practice. We do not believe guidance has the force of law. It 
does often include our interpretation of the law, again, to 
provide clarity.
    The Chairman. Thank you, Dr. King. Let's talk about 
comparability. There is a provision in the Act, as I mentioned 
in my opening comments, first put there in 1970 that says 
school districts have to provide at least comparable services 
with State and local funding to title I schools and non-title I 
schools.
    The law also says on comparability in Section 1118(c)(2)(b) 
for purposes of this subsection in determining that 
computation, ``staff salary differentials for years of 
employment shall not be included in such determination.'' Do 
you agree, yes or no, that the law prohibits requiring local 
school districts to use teacher salaries when demonstrating 
that they are providing title I schools with at least 
comparable services as non-title I schools?
    Secretary King. You are referencing the comparability 
section as opposed to supplement not supplant section.
    The Chairman. That's correct.
    Secretary King. Yes, I believe that's an accurate depiction 
of the comparability section of the law.
    The Chairman. You've had a chance to study the law. In your 
opinion, did Congress make any changes in the comparability 
section when we reauthorized the law last year?
    Secretary King. I don't believe there were changes to the 
comparability section. There were changes to supplement not 
supplant.
    The Chairman. I'm just asking you did we change Section 
1118(c)(2)(b), the comparability section?
    Secretary King. To the best of my recollection, no.
    The Chairman. No, we didn't change it. Your proposal in 
April to the negotiated rulemaking committee on a different 
subject, supplement not supplant, says a local school district 
may determine the methodology it will use to allocate State and 
local funds, provided that methodology results in spending of 
local funds in a way that's equal to or greater than the 
average amount spent per pupil in non-title I schools. You also 
say that methodology must provide a basic educational program 
as defined under State and local law is used in each title I 
school.
    Would you agree that that language defines two methods that 
local school districts must use?
    Secretary King. No. I appreciate you're making a 
distinction between comparability and supplement not supplant 
and----
    The Chairman. Wait a minute. In supplement not supplant, it 
says provided that that methodology that the local school 
district uses is, one, the average I talk about, and, two, the 
basic education program. How can that not be the defining of a 
methodology that a local school district uses?
    Secretary King. The proposed regulation is careful to 
maintain district flexibility with determining the----
    The Chairman. Wait a minute, Mr. Secretary. The words are: 
provided that methodology is one or two. The question is are 
you not defining a methodology when you use the words, 
``provided that methodology is X or Y?''
    Secretary King. We are not. We are laying out what criteria 
are necessary----
    The Chairman. You used the words, ``provided that 
methodology.'' ``Provided that methodology'' are the words you 
use.
    Secretary King. Followed by a set of words that describe 
the criteria by which that methodology would meet the principle 
of supplement not supplant.
    The Chairman. Oh, OK. You define the methodology.
    Secretary King. We do not.
    The Chairman. You do. How can you sit there and say that? 
We may not be very smart up here, or at least I may not be. Let 
me speak for myself. I can read--provided that methodology does 
X, does Y.
    You are defining a methodology when in the law--what we put 
in the law was that nothing in this section of supplement not 
supplant, which has nothing to do with the comparability 
section--nothing in this section shall be construed to 
authorize or permit the Secretary to prescribe the specific 
methodology a local education agency uses or to mandate 
equalized spending. In other words, we anticipated that you 
were going to try to not follow the law, and we anticipated, 
and we wrote in the law that you couldn't use a specific 
prohibition to do that.
    Secretary King. As indicated, we do not prescribe the 
specific methodology--leave the methodology to districts--but 
are requiring----
    The Chairman. Provided that methodology results in X, 
provided that methodology results in Y. How is that not 
prescribing a methodology?
    Secretary King. Those are criteria by which to evaluate a 
methodology that would be determined by a district that would 
ensure that the title I dollars are, in fact, supplemental and 
not being used for----
    The Chairman. Dr. King, do you know how ridiculous the 
statement is you just made? If I read you plain English, if I 
say A, B, C, and you say it's D, E, F, how can that be?
    Secretary King. Again, I would characterize it differently. 
The question here is a methodology that is district determined 
must achieve A and B, and A and B ultimately define supplement 
not supplant, which is to ensure that the title I dollars are 
used in a way that is supplemental.
    The Chairman. The law intended that States would have more 
flexibility in local school districts and I'm over my time. 
I've already violated my own rule, it looks like. I'll 
conclude, and I'll stay for a second round of questions. Thank 
you.
    Senator Murray.
    Senator Murray. Congress deliberately required the 
supplement not supplant requirements to go through the 
negotiated rulemaking process. This policy really is a critical 
fiscal check to make sure that Federal funds are layered on top 
of and not in place of State and local funding. Teachers and 
principals in Washington State tell me how important Federal 
education dollars are to support the State and local resources 
in their schools, and we need to make sure that these Federal 
dollars continue to support and augment State and local dollars 
and don't replace them.
    Can you tell us about the feedback that you received from 
stakeholders and how this feedback was then incorporated into 
the draft regulation?
    Secretary King. Yes. Your description is exactly right. As 
we gathered feedback through our request for information, what 
we heard was a request from civil rights groups, from parents, 
from educators for greater clarity on how supplement not 
supplant would ensure that the title I dollars are truly 
supplemental and not used to backfill.
    Also, we heard concern that the prior methodology under No 
Child Left Behind was often burdensome and left key 
decisionmaking to auditors rather than to educators. This new 
methodology reflects the input. This new way of defining what 
districts need to do in their methodology reflects the input 
that we received from States and districts.
    Senator Murray. ESEA is at its heart a civil rights law 
with the goal of ensuring that all students receive a quality 
education. When the Department began issuing waivers under the 
No Child Left Behind requirements, they only required important 
interventions in the bottom 5 percent of schools and small 
groups of schools with achievement gaps called focus schools, 
and because of that, I heard many concerns with that approach.
    Under the Every Student Succeeds Act, States must annually 
distinguish and ensure there are interventions in any school in 
which one or more subgroups of students is consistently 
underperforming and require additional interventions for the 
worst performing of those schools. Last week, the Department 
announced it will release a draft accountability regulation in 
the coming months.
    Can you tell me how the administration will make sure the 
faithful implementation of that provision, and that there are 
robust supports for all schools in which subgroups are 
struggling?
    Secretary King. Yes. We have developed draft regulations 
that are now with OMB for final review on accountability with 
the goal that reflects the principles in the law, that 
standards will be high, that we will ensure the progress of all 
subgroups, and that in schools that are struggling there is a 
requirement for meaningful action by States and districts. The 
regulations would ensure guardrails, again, ensuring 
flexibility for States for them to define the precise 
interventions that they believe will address the local 
conditions that are behind the underperformance.
    Senator Murray. This new law does turn over more 
decisionmaking power to States and districts, making 
collaboration even more important than ever. In my home State 
of Washington, many are already taking steps to make sure that 
their voices are heard in this implementation process. I've 
said before, I believe all States must invite all stakeholders 
in to engage in this process, including civil rights leaders 
and parents.
    What steps is the Department taking to make sure that ESSA 
prompts frequent, deliberate collaboration among all the 
stakeholders at both the State and local level?
    Secretary King. That's really the approach that we've taken 
from the outset. We put out a request for information that 
resulted in comments from nearly 1,000 individuals and 
organizations. We held two public hearings in which we received 
over 100 comments. We've held over 100 stakeholder listening 
sessions with diverse groups, civil rights groups, parents, 
educators around the country, and we'll continue to do so.
    In the negotiated rulemaking process, we had over 200 
nominations for the negotiated rulemaking process and have a 
negotiated rulemaking committee that is diverse and reflects 
diversity of stakeholders. We have urged States as they begin 
their process of developing State approaches to implementing 
the Every Student Succeeds Act--we've encouraged States to make 
sure that they have robust stakeholder engagement, and that's 
what we're seeing, States beginning the process now of engaging 
with a diversity of interests within their State.
    Senator Murray. What kind of comments are you hearing back 
as you move forward on this process?
    Secretary King. Many of the comments are around what areas 
require further clarity or guidance. As we've developed--
identified areas for negotiated rulemaking or for regulation or 
for guidance, it's been responsive to the feedback that we've 
received. We've heard a lot of enthusiasm about the potential 
for the new law to advance equity and excellence, but also a 
concern that we have to make sure that there are strong Federal 
guardrails to protect civil rights.
    Senator Murray. Thank you very much, Mr. Chairman.
    The Chairman. Thank you, Senator Murray.
    Senator Burr.

                       Statement of Senator Burr

    Senator Burr. Thank you, Mr. Chairman.
    Secretary, welcome. Under the No Child Left Behind Act, 
schools have had to itemize the cost of services and programs 
to show title I aid was providing supplemental services, but 
the ESSA schools don't have to identify those individual costs. 
They only have to show fiscal terms that the title I dollars 
supplement State and local dollars, and they don't need a 
waiver to do so. Districts no longer have to worry about 
showing whether each expenditure is a core service or 
supplemental for title I purposes.
    In the negotiated rule proposal from the Department, 
however, you're telling States that actual per-pupil spending 
is equal to or greater than in a non-title I receiving State. 
In a concept similar to what you're doing, this was an issue on 
the Federal level that I tried to fix with the title I-A 
formula. I believe before States are told to do something 
regarding how they are funding schools equitably, the Federal 
Government must exhibit leadership in how we allocate title I-A 
funds to eliminate those inequities. This is the whole point of 
title I-A.
    When Secretary Duncan was first confirmed about 7 years 
ago, I asked for the administration's proposal for fixing title 
I-A formula inequities, but I've never received one. In the 
remaining months of this administration, will you share with me 
your proposal on how we might address inequities in title I-A 
allocations from the Federal level?
    Secretary King. We certainly are prepared to work with you 
or your staff to look at this set of questions. I would say in 
your question, one important distinction is that the proposal 
on supplement not supplant is not going to affect State level 
decisions. It's about the district methodology for allocation 
of resources within the district.
    Senator Burr. Do you agree that Federal funds that were 
designed for poor kids are not following the poor kids?
    Secretary King. What we see--and one of the reasons why the 
supplement not supplant regulation is so important--what we see 
is that, in fact, in many districts around the country, more 
Federal dollars are being spent in non-title I schools than in 
title I schools, and we have to make sure that the resources 
are allocated to address the needs of the students most at 
risk.
    Senator Burr. Isn't the role of Federal Government with 
taxpayer designated money for poor kids--isn't our role to make 
sure that money follows where those poor kids live?
    Secretary King. The focus of the Federal dollars is on 
addressing the needs of the students who are most at risk.
    Senator Burr. Wasn't title I designed to supplement the 
needs of those kids? Today, it doesn't follow the kids. It 
stays in districts whether the population grows or decreases. 
Why wouldn't the Federal Government set the example of changing 
it?
    Secretary King. Again, the key is to get the dollars to the 
students who are most at risk, and we have to acknowledge that 
students who are in schools of concentrated poverty--students 
in poverty who are in schools of concentrated poverty are more 
at risk as a result. One of the things that the President has 
done is propose an initiative called Stronger Together that 
would have the goal of----
    Senator Burr. We layer and layer and layer programs on, but 
we have one right here where the money doesn't follow the 
intended pupil, and we're not fixing it. Mr. Secretary, in a 
dear colleague's letter from the Department dated January 28, 
2016, your staff instructed States that they'd receive formula 
funds in accordance with the 2015-16 school year allocations.
    Although this guidance appears to only apply to title I 
funds and for school improvement activities, for example, I 
want to know whether you agree that the fiscal year 2017, which 
is almost upon us in October--whether you agree the 14.29 
percent annual reduction in title II hold harmless provisions 
will begin to take place as required by the Every Student 
Succeeds Act for the upcoming fiscal year.
    Secretary King. We'll have to followup with your staff on 
the title II question. I just want to make sure that we're 
talking about an apples to apples comparison on the title II 
dollars.
    Senator Burr. Let me just refresh your memory. Title II 
funding formula changed over a 7-year period. There's a 
reduction for some of 14.29 percent, and it takes effect with 
fiscal year 2017, which is October 1 of this year.
    Secretary King. Again, we'll need to followup with your 
team. My experience as a State chief was oftentimes the title 
II dollars--there were times when the title II dollars would 
carry over from year to year. I just want to make sure we're 
having an apples to apples comparison in our conversation. 
We'll followup with your team.
    Senator Burr. I look forward to that conversation, because 
I don't think there's any gray area in how we wrote this and 
when the title II formula change starts, and that's October 1.
    I thank the chair.
    The Chairman. Thank you, Senator Burr.
    Senator Casey.

                       Statement of Senator Casey

    Senator Casey. Mr. Chairman, thank you.
    Mr. Secretary, good to be with you, and thank you for your 
service. I guess you're on the job about a month, and we 
appreciate you being here reporting back on the implementation.
    I wanted to focus your attention on students with 
disabilities and, in particular, the 1 percent cap on 
alternative assessment, which is a technical issue, but I think 
it's easy for most folks to understand what we're trying to do. 
We're trying to make sure as many students with disabilities 
stay on track and graduate with a regular diploma. It's as 
simple as that. We've made a lot of progress in terms of over a 
number of years scores going up for students with disabilities, 
graduation rates getting better, and being able to codify, to 
put into the law the 1 percent policy is good progress.
    I was noting in some of the data that if you look at both 
math scores and reading scores for students with disabilities, 
they're up, and I thought, maybe even more significantly, 
students with disabilities are increasingly completing high 
school and moving on to post-secondary programs. In about a 
decade, we went from 68 percent of students with learning 
disabilities receiving a regular high school diploma, compared 
to just 57--I'm sorry--57 percent a decade ago, 68 percent now, 
which is good progress on that metric.
    Also, the dropout rate, fortunately, over about a decade is 
going in the right direction, meaning instead of a dropout rate 
of 35 percent in 2002, in 2011, the latest year we have some 
data, it's down to 19. So good progress.
    I guess my--I have basically two questions for you. As you 
go through this implementation process, what can both the 
Department as well as States and districts do to ensure that we 
continue to make progress?
    Secretary King. One of the keys to the continued progress 
for students with disabilities is ensuring that to the greatest 
extent possible with appropriate accommodations, students with 
disabilities have access to the general education curriculum. 
The assessment requirement, the 1 percent cap on alternative 
assessment, is an important element in ensuring that students 
have access to the general education curriculum.
    As we work with the negotiated rulemaking committee, one of 
the key elements in the discussion is ensuring that the 1 
percent cap is meaningfully enforced and that to the extent 
that States are able to get a waiver from the 1 percent cap, it 
is not having the effect of taking students who could succeed 
in a general education curriculum with appropriate 
accommodations and denying them those opportunities. Much of 
the feedback we received around the 1 percent cap was from the 
disability rights community, expressing appreciation that there 
would be a requirement for States to be very careful when 
excluding students from access to the general education 
curriculum and the general education assessments.
    Senator Casey. I guess the value here or the goal is to 
make sure that every student that has the capability has the 
opportunity to both access the general curriculum and then 
finally to graduate with a diploma. Just maybe one more 
question on this. Generally, and even if you have specific 
examples--generally, what has the disability community been 
saying to you in this process?
    Secretary King. Like many other constituency groups, there 
is a sense of enthusiasm about the new law and the potential 
for the new flexibility and a concern that there need to be 
good guardrails in place to ensure that resources reach the 
students who are most in need; to ensure that students with 
disabilities have access to the general education curriculum; 
that students with disabilities have access to the full range 
of experiences that constitute a well-rounded education; that 
students with disabilities have access to science and social 
studies; that students with disabilities have access, where 
appropriate, to advanced course work, again, with appropriate 
accommodations. We're very mindful of ensuring that our 
implementation helps States protect the rights and interests of 
students with disabilities.
    Senator Casey. I appreciate that. We've learned over a 
number of years--both families and advocates have taught us 
that students with disabilities have a lot of ability. We've 
just got to give them the tools and resources to succeed. Thank 
you for your work on this.
    Secretary King. Thank you.
    The Chairman. Thank you, Senator Casey.
    Senator Bennet.

                      Statement of Senator Bennet

    Senator Bennet. Thank you, Mr. Chairman. Thank you very 
much for holding this hearing and for your efforts on the bill. 
I did not succeed in changing the comparability provision.
    The Chairman. Nor did I.
    Senator Bennet. Secretary King, I wanted to ask you some 
questions about this supplement versus supplant, understanding 
that, as you said, this is a civil rights law. It's the only 
reason the Federal Government should have any involvement, it 
seems to me, in education.
    I remember when I was superintendent of the Denver Public 
Schools, the most miserable--actually, that's overstating it--
one of the most miserable experiences that I had and the people 
that worked for me had was the experience of Federal 
bureaucrats and Federal auditors, who were not experts, 
deciding whether or not this service was provided in this title 
I school and paid for, or this service provided in this non-
title I school, and making a judgment that had nothing to do 
with the academic experience of children, but was just about 
following not even the law, but the rules of the Department of 
Education to determine whether or not we were supplementing or 
supplanting our Federal money, in other words, whether we were 
using it incrementally or whether we were filling gaps.
    The reality is, unfortunately--Senator Burr is right. We 
are one of three countries, as I understand it, among all 
industrialized countries, that spend more money on wealthy kids 
than we do on poor kids. That's not mostly a function of what 
we do. It's a function of the inequities that exist in the 
property tax system that we use to fund schools in America.
    Even with respect to title I, a recent study from the 
Center for American Progress said that 4.5 million students 
attending schools, title I schools, in the same districts with 
non-title I schools are actually having less money spent on 
their education than more affluent kids, which makes no sense. 
It's exactly the opposite.
    I wonder if you could talk first about the existing 
framework, the existing experience, and then talk from a 
pragmatic point of view what you're trying to achieve with the 
proposed rule.
    Secretary King. I agree completely about the challenges 
with the old system under No Child Left Behind where you had 
auditors trying to make the decision on whether something was a 
new program or not, whether something, because of the law, 
might have been changed by the State, whether or not that then 
changed the analysis for determining whether the services were 
a matter of supplement or of supplant. All of that was quite 
burdensome to districts and didn't achieve the intended goal, 
which was to ensure that the title I dollars would be 
supplemental.
    What we've tried to do in this proposed rule--and, again, 
it's----
    Senator Bennet. I'm sorry to interrupt, but incredibly hard 
to do whole school reform because you'd have this auditor 
coming in and saying, ``That reading program--no, no, you paid 
for that over here. You can't use that over here.''
    Secretary King. That's right. That's right. With the 
discussion that the negotiated rulemaking committee is having--
and I don't want to get ahead of that discussion, but what 
we've proposed in those discussions is a simple approach saying 
districts should choose their methodology, but that that 
methodology should ensure that at least as much in State and 
local spending is taking place in the title I schools as in the 
average non-title I schools. The idea there is simply to say we 
should try to do what we can to assure the principle of 
supplement not supplant, that the title I dollars are 
additional.
    It doesn't require teacher transfers. What it requires, if 
schools are not spending as much State and local funds in their 
title I schools as in their non-title I schools, is that 
districts ameliorate that allocation, and they can do that in a 
variety of ways.
    Senator Bennet. I also want to agree with the Chairman 
that--or maybe add to what he said about this being a 
retrenchment on education. This is probably the biggest 
retrenchment on a domestic policy issue that we've had in 
modern American history, not just education, but anything else. 
I wonder, in that context, what you plan for the Department to 
do to help districts implement this new law with fidelity.
    I have come to believe over the years that bad 
implementation is even worse than bad policy, and I wonder if 
you have some thoughts on that, and then I'll stop. I have 10 
seconds left.
    Secretary King. Our goal is to provide clear guardrails 
through the regulations based on the input that we have 
received from stakeholders; to provide guidance, particularly 
on areas where clarity and examples of best practice will be 
helpful, like serving homeless students and students in foster 
care and working with English language learners; and to create 
communities of practice among States where they can share best 
practices with each other. That approach will honor the 
commitment to flexibility for States and districts while at the 
same time honoring the civil rights legacy of the law.
    Senator Bennet. Thank you.
    The Chairman. Thank you, Senator Bennet.
    Senator Cassidy has suggested that we go on to Senator 
Warren.

                      Statement of Senator Warren

    Senator Warren. Thank you, Mr. Chairman.
    Secretary King, last month, you received a letter from over 
50 civil rights and disability rights organizations 
representing children of color, low-income children, English 
learners, students with disabilities, LGBT young people, and 
other vulnerable student populations, regarding your 
responsibilities in enforcing the new education law.
    Here are the organizations that represent exactly the kids 
who this law is intended to help, and they wrote,

          ``Given the long history of State and local decisions 
        shortchanging vulnerable students, the Department 
        cannot shirk from its responsibility, regulatory and 
        enforcement responsibility, to ensure that the 
        implementation of ESSA eliminates, not perpetuates, 
        persistent inequities in our Nation's public education 
        system.''

    If I can, just briefly, Mr. Secretary, what is the 
Department of Education's role in ensuring the accountability 
safeguards in the new education law are actually enforced? That 
is, once a district announces it has satisfied the law, are you 
required just to back out of the room and do nothing more?
    Secretary King. No. We take very seriously our 
responsibility to set good, clear guardrails in the regulations 
and then to review and approve State plans, and to ensure that 
those plans are implemented in a way that advances equity and 
excellence.
    Senator Warren. Excellent. Thank you. The Republicans have 
talked about the congressional intent in passing this new law, 
and that question is not difficult to answer. The first version 
of this legislation back in 1965 was to affirm the Federal role 
in protecting civil rights and educational opportunities for 
all students, especially our most vulnerable students. That's 
been the basis of Federal aid to education from the very 
beginning, and it's carried directly forward into this statute.
    I voted for this law on the explicit agreement that the 
Department of Education would enforce its accountability 
provisions through meaningful regulations. That's clear in the 
language of the law, and it's also good policy. When the 
Federal Government gives the States billions of taxpayer 
dollars to improve education for our most vulnerable kids, then 
it's critical that the Department of Education ensure that 
those States actually use the money to accomplish those ends.
    This is one of the conditions on which a lot of Senators 
voted for this law, the condition on which many House Democrats 
voted for this law, and the condition on which the President of 
the United States signed this bill into law. There is a very 
public record about this. The ink is barely dry on that record, 
and I trust you'll keep it in mind as you go forward.
    The new Elementary and Secondary Education law directs 
billions of Federal taxpayer dollars to States to, ``provide 
all children significant opportunity to receive a fair, 
equitable, and high-quality education.'' To make sure that 
happens, Congress wrote into the law critical requirements. 
This requirement says that ESEA funds must be used to 
supplement not supplant current State and local funds. In other 
words, Federal dollars must provide additional resources to 
low-income schools and not simply replace existing investments. 
We've been talking about that as we've gone along.
    Secretary King, can you talk for just a minute about how 
the Department is enforcing this critical accountability 
provision to ensure that Federal education dollars are truly 
providing additional resources in high-poverty schools?
    Secretary King. Yes. The challenges, as I've described--the 
implementation of supplement not supplant under No Child Left 
Behind was not effective in achieving this goal of ensuring 
that the Federal dollars are truly supplemental. If we look at 
individual districts, you can see a 25 percent, 30 percent, 40 
percent, in some cases, additional spending in non-title I 
schools than in title I schools, and, in fact, the Federal 
dollars were being used essentially to backfill.
    Going forward, the new law gives us the opportunity to 
create a regulation that requires districts to develop their 
own methodology that will ensure that at least as much is spent 
in State and local funds in title I schools as is spent in the 
average non-title I school. That's what we've proposed to the 
negotiated rulemaking committee, and they are working through 
that process.
    Senator Warren. Let me just be clear on this. Is it 
possible for the Department of Education to require States and 
districts to work toward specific outcomes, that is, to have 
guardrails without mandating specific accounting methods to 
achieve those ends?
    Secretary King. Exactly right.
    Senator Warren. All right. Good. When the Federal 
Government gives States billions of taxpayer dollars to improve 
education for our most vulnerable kids, then it's critical that 
the Department of Education ensure that those States actually 
use the money to help those kids. This was one of the 
conditions on which a lot of Senators voted for this law, and 
it is something that we are going to stick with.
    The Democrats have spent years fighting to make sure that 
this reauthorization is about additional dollars, to make sure 
that they support all of our teachers and all of our kids to 
get a decent education. We just want you to keep that in mind 
as you go forward.
    Thank you.
    The Chairman. Thank you, Senator Warren.
    Senator Cassidy.

                      Statement of Senator Cassidy

    Senator Cassidy. Hello, Dr. King. I was listening to your 
testimony and the questions as I was in another hearing. You 
mentioned in your testimony that you're concerned about 
subgroups that would struggle, and that you're looking for 
meaningful action required. You used the term, precise 
intervention.
    You've been here before. One of my interests is dyslexia. 
Twenty percent of the population is dyslexic. Perhaps 80 
percent of those who are functionally illiterate are dyslexic. 
I forget the exact percentage, but something like 60 percent to 
80 percent of the inmate population in the Texas penal system 
have dyslexia. We know that illiteracy is a major risk factor 
for incarceration.
    Of course, given that you're interested in the subgroups 
that are struggling and what meaningful action is required, I'm 
interested in what we're doing, specifically, regarding 
dyslexia. As I say that, I've learned when I ask these 
questions, I'm given these kind of bromide answers, not 
speaking to you, in particular. It's this gauzy, kind of 
``we're looking after every child, and we're concerned about 
dyslexia as part of this larger group.''
    I want to know exactly what we are doing for children with 
dyslexia, not as part of a bigger group, but know what has 
dyslexia written in the rule. For this 20 percent of the 
population and 80 percent of those reading below grade level, 
what are we doing for that subgroup that is struggling, what is 
the precise intervention, again, to quote your testimony?
    Secretary King. As we've discussed, it's an important 
question. Currently, States are using IDEA dollars through our 
results-driven accountability approach to address reading 
programs that are specifically----
    Senator Cassidy. Can I interrupt for a second?
    Secretary King. Yes.
    Senator Cassidy. We had a panel before and I submitted QFRs 
and asked, specifically what different people--Governors on 
down to superintendents--what each was doing to screen for 
dyslexia at grade one and to followup. I didn't get a positive 
answer from any of them. Not a single entity that we know of is 
screening for a condition which affects 20 percent of the 
children at grade one.
    Knowing that that is what they're supposed to do and going 
back to yours, what meaningful action is being required? What 
precise intervention is happening? I'm not seeing that precise 
intervention.
    Secretary King. This is an area where technical assistance 
and professional development are critical. One of the important 
things----
    Senator Cassidy. Just to continue, if we're going to have 
technical assistance, again, I don't mean to be assaultive, but 
what is specifically being written for technical assistance 
that is meaningful and precise regarding dyslexia to that local 
and State entity?
    Secretary King. Thanks in part to your leadership, in the 
2016 budget, there is funding for a technical assistance center 
focused on dyslexia. We are currently developing the request 
for proposals for that technical assistance center.
    Senator Cassidy. Technically, that is a center of 
excellence and that's kind of just putting out information that 
would be good if you used it. Unless it's required to be used, 
it may end up being the equivalent of shelf ware.
    Secretary King. That's fair worry, and that's why, to the 
points that Senator Warren made, the accountability 
provisions--and Senator Casey--the accountability provisions of 
ESSA are so important. We have to make sure that districts and 
States take seriously their responsibility----
    Senator Cassidy. I've learned that those folks, the 
stakeholders, respond to what you say. When I speak to folks 
back home, if you say it, that settles it. Boom. I would go 
back to where I started. What precisely and meaningfully is 
being said by your Department to instruct them to address the 
needs of that first grader who may be at risk for lifelong 
reading below grade level because they have undiagnosed 
dyslexia? What, precisely, are you all asking for?
    Secretary King. We issued guidance and provided a toolkit 
last year that addressed dyslexia, specifically, and talked 
about strategies that districts and States might employ. The 
technical assistance center will add to our capacity there to 
support States and districts.
    Senator Cassidy. Is there any required meaningful precise 
intervention? Or is this among a group of things that you can 
do, we think you should do, and atta boy?
    Secretary King. It is options that districts might choose. 
For example, some districts might choose the Orton-Gillingham 
approach, some districts might choose the Wilson approach, but 
there's a variety of options that they might----
    Senator Cassidy. Their response, with that variety of 
options, is it somewhat required that one of the options be 
used, or is it ``Listen, if you decide to address, you may go 
down one of these paths?''
    Secretary King. The challenge is ultimately what's chosen 
for any individual student is bound up with the IEP process. 
Again, this is a place where support and professional 
development for the folks who are involved in those IEP 
conversations is so critical.
    Senator Cassidy. One more time, is there any requirement on 
your part that the district or the State screen a first grader, 
because you can detect it at grade one, even kindergarten, and 
screen that first grader for being at risk for dyslexia?
    Secretary King. There's not a universal screening 
requirement. The IEP team would be expected to address the 
screening for dyslexia as a part of the assessment of the needs 
of a student who is struggling. Again, One of the challenges 
here is providing good support and professional development for 
folks. This technical assistance center will help, and our 
results-driven accountability approach will help, because 
States understand that their accountability is not merely for 
paper compliance with IDEA, but ensuring meaningful opportunity 
and progress for students with disabilities.
    Senator Cassidy. Thank you for this back and forth. You've 
allowed me to interrupt, and it has furthered the conversation. 
I'll end by saying that unless you require this to be addressed 
specifically since dyslexia is one of the things we're looking 
at. Are you screening, are you intervening at grade one, not at 
grade three when it's too late, it's not going to happen. That 
is the power of your Department. I thank you.
    I yield back.
    The Chairman. Thank you, Senator Cassidy.
    Senator Murphy.

                      Statement of Senator Murphy

    Senator Murphy. Thank you very much, Mr. Chairman.
    Welcome, Mr. Secretary. Let me ask, if I can, about my 
understanding of this proposed requirement regarding supplement 
and supplant that Senator Alexander was discussing. I 
understand that when you think about the context of the new law 
being a devolution of power back to the States and then you 
read language that points a school district or a State in a 
specific direction on methodology, those two can look 
inconsistent.
    Let me tell you how I read them as consistent and just make 
sure that it's the same. This is a section that is talking 
about the way in which a school district will develop a 
methodology. There's a difference between saying the 
methodology will be, or the methodology must be, versus what 
the language says, which is the methodology must result in. 
Essentially, what it must result in is a re-articulation of the 
underlying goal of the statute, which is that the Federal 
dollars ultimately supplement not supplant.
    Am I reading that right, that sort of the key here is that 
the language doesn't say the methodology must be X and Y? It 
says the methodology must result in, essentially, the goals of 
the underlying statute that we all wrote together. Is that 
right?
    Secretary King. That's exactly right. For example, a 
district might take a weighted student funding formula approach 
as their methodology, or another district might choose a more 
traditional assignment of staffing and services approach. Both 
of those approaches would be fine as long as they achieve the 
goal of as much State and local spending in the title I school 
as in the average non-title I school.
    Senator Murphy. You'll expect to see different 
methodologies being used.
    Secretary King. That's exactly right.
    Senator Murphy. Second, just some questions about the 
accountability regulations that are right now pending before 
OMB. Obviously, a large number of us were very involved in the 
construction of that part of the statute, and, of course, these 
guardrails are fairly wide in terms of what States can do to 
build accountability systems.
    States have to set a goal for performance of schools and 
subgroups. They have to track whether schools and subgroups are 
meeting those goals, and then if they aren't, then they have to 
provide interventions. It's up to the schools as to what their 
goals are and then what those interventions are.
    There clearly would be a point at which a school district 
is in violation of those requirements. I would suggest--this is 
just me talking--that if a school was failing, and they just 
changed the name of the school, that would not likely be an 
intervention that would comply with the statute. To me, 
regulations are also a means by which we help school districts 
understand how to comply with a law that is relatively broad in 
its requirements as to how school districts go about building 
accountability systems.
    I just wanted you to speak for a moment on the--when 
regulations are done right, it's actually helpful to school 
districts so that they won't get surprised by an enforcement 
action on the back end, because you still retain not only 
authority but responsibility to enforce this law. So as to not 
be capricious in the enforcement, you want to give some school 
districts, certainly on accountability sections where the 
guardrails are wide, some idea ahead of time as to how they 
stay in compliance with the underlying law.
    Secretary King. That's exactly right. Those are the 
principles that are behind our development of the 
accountability regulations, if you imagine a high school that's 
struggling because they have a significant number of English 
learners who are performing poorly. A good thing about ESSA is 
there's flexibility for them to develop a tailored, targeted 
strategy that responds to their need to acquire English 
language proficiency that leverages their native language in a 
thoughtful way.
    At the end of the day, the district and State have to 
ensure that there's actual progress. If years go by, and 
graduation rates don't improve, academic outcomes don't 
improve, there's got to be evidence that the State and district 
are changing the strategy to get better outcomes, and the 
regulations are a way to ensure that there are clear guardrails 
for States as they do that work.
    Senator Murphy. I just think it's important for all of us 
to remember that you still retain the enforcement 
responsibility. If the Department believes that a State or a 
school district isn't in compliance with the statute we wrote, 
it's up to you to come in and provide a remedy. Thus, the 
regulations are not just a way that the Federal Government 
tells a State what to do. It's a way to give some predictive 
ability for States to know when they might run afoul of the 
law.
    Thank you very much, Mr. Chairman.
    The Chairman. Thank you, Senator Murphy.
    Senator Whitehouse.

                    Statement of Senator Whitehouse

    Senator Whitehouse. Thank you, Chairman.
    Secretary King, welcome. You're not really there yet, but 
this is kind of a preview of coming attractions. I don't know 
that the supplement versus supplant conversation really takes 
us to it. In the education bill, I worked very hard on an 
innovation schools initiative.
    I worked very hard in Rhode Island for many months bringing 
together all the different players who were usually in touch 
with their national organizations as well to make sure they 
weren't getting out of line with teachers, with principals, 
with school departments, with reform groups, with everybody. I 
worked very closely with the Chairman as well, and we were able 
to get a pretty robust innovation schools piece into the Senate 
bill.
    The Senate bill then went into conference. I was not in the 
conference negotiations. There was a conference vote at the 
end, but the work was done with a much smaller group. I can't 
speak firsthand to what happened. What I'm told is it was your 
organization that wanted that innovation schools piece watered 
down dramatically, and it was watered down in the ultimate bill 
that was presented to conference for a vote, and I spoke to 
that at the time.
    In Rhode Island, our new education commissioner, Ken 
Wagner, has just announced his effort at what he calls 
empowerment schools to try to free up the gaps between the 
State bureaucracy that oversees education and the municipal 
bureaucracies that oversee education so that there's more room 
for student-oriented and locally driven flexibility.
    That's kind of on the small scale of what I was trying to 
do on the larger scale with the innovation schools, because if 
you actually are a school, and you actually want to do 
something that is innovative, if you're looking at having to 
line up your local school department to get behind it, and then 
at the same time line up your State education authority to get 
behind it, and then at the same time try to get the Federal 
Department of Education signed up, that kills an enormous 
amount of innovation in the crib, because you look forward to a 
triple decker bureaucratic wrangle that most schools could 
never bet they could get through.
    This would basically create a tranche through it all, where 
if you met certain standards, you could go forward. I can see 
why folks within your Department might be suspicious of that, 
but I really would urge you to try to look at the fact that we 
need this innovation, particularly in the wake of the No Child 
Left Behind mess, which by driving everybody into these testing 
regimes basically drove non-testable curriculum out of a lot of 
the schools where those kids were, frankly, entitled to a 
better curriculum, but the program drove it off the agenda 
because they were all about making sure their students got 
through the tests.
    I guess I'm just here--and you're going to hear it from me 
over and over again. Please don't continue to back pedal on the 
innovation schools agenda. I put a lot of work into it. It was 
bipartisan in the Senate. Not one person ever came to me and 
said, ``I don't like that. We don't need to do that.'' This was 
something that was done in the dark of conference negotiations, 
and that's not a great way to build relationships. I have to 
tell you that.
    I'm just putting the marker down. I really want to see the 
innovation schools piece be robust in the way that you develop 
it and in the way that your organization develops it, and I'm 
going to be very, very concerned if I find that, in fact, 
another cut gets taken at it as the regulations get developed 
in order to reassert more Federal authority over these schools. 
Because you're just not going to get innovation if people are 
anxious about what they're going to have to deal with as they 
try to sell that innovation program up through the triple 
decker of bureaucracy that has been sitting on top of these 
schools for so long.
    I'll ask you to comment on that.
    Secretary King. I just want you to know I very much share 
your commitment to innovation. The new law creates a number of 
important opportunities as States rethink their accountability 
systems. There's an opportunity to broaden the definition of 
educational excellence just as you've described to make sure it 
includes science and social studies and world languages and 
access to advanced course work and socio-emotional learning.
    There's an opportunity for States to pursue an innovation 
agenda in how they think about interventions in struggling 
schools, to think about arts as a strategy to improve 
performance in a struggling school, to think about career and 
technical education as a strategy to improve performance in 
struggling schools.
    Senator Whitehouse. I get all that. My point is that when 
you say for States to pursue an innovation agenda, that's not 
necessarily getting me there. I need to have a system in which 
a school can pursue an innovation agenda, because if the 
teachers are just sitting there on the receiving end of the 
State saying, ``Here's my new innovation agenda''--by the way, 
they've been receiving innovation agendas from school 
departments for decades now. It's a churn. There's always a new 
agenda, and they always have to respond, and they do new 
reports, and the local school-based innovation gets stifled by 
that, and that's my concern.
    Thank you. My time has expired.
    The Chairman. Thank you, Senator Whitehouse.
    Senator Murkowski.

                     Statement of Senator Murkowski

    Senator Murkowski. Thank you, Senator Alexander.
    Welcome. Secretary, the State of Alaska was compelled to 
stop the statewide assessments that were underway this year. 
Their assessment through the Alaska Measures of Progress began 
on March 29, and through a series of failures--first of all, 
there were a lot of different anomalies for students throughout 
the State. You'd be going down through--question one is there, 
question two is there, question three is nowhere. Where is 
question three?
    These were anomalies that were not just in one district but 
in multiple districts. In some, there were, again, the skipped 
questions. In some, there was no sound on the text-to-speech 
accommodation tool, assorted error messages.
    Then we find out that a backhoe severs the provider's or 
the vendor's broadband Internet cable that sent the--basically, 
the system fails out of Kansas. The cable that delivered the 
test to Alaskan students and captured their answers kept 
crashing. Every time the system crashes, the students have to 
restart the test from the very beginning, meaning that they've 
got to answer the same questions over and over again. The 
system didn't save their answers.
    When you think about the frustration of a student, they 
don't like being in the test in the first place. Then when you 
try, and things stop and start and stop and start, or are 
inconsistent, it is extraordinarily frustrating. What we saw 
was uniform testing conditions just were compromised and failed 
us.
    There was a period on Tuesday when it went down. Thursday, 
they were told it was back up. Then we reported that further 
widespread anomalies were there. The assessment portal wasn't 
functioning. The cable hadn't been fully repaired. Basically, 
it was a situation that was just deemed a failure, and our 
acting secretary of education made the determination to cancel, 
to stop the statewide assessment.
    We were also told that if Alaska were to resume the 
testing, despite all of these previous problems and the impact 
that they've had on the reliability of the test results, the 
validity of them, that the vender, the provider, AAI, is unable 
to make a cached assessment platform work in the State, given 
some of the complications and difficulties that we have with 
broadband.
    This is not a good situation, of course. This is a very 
difficult decision that the State of Alaska made because of 
just broad system failure. Given all of the problems that we 
have seen related to this statewide assessment, can you give me 
the assurance, as well as the State of Alaska and our 
department of education, that the Department will not force 
Alaska's students to resume testing this year?
    Secretary King. We're very concerned about how the test 
administration has gone in Alaska. Our team has been in touch 
with Dr. McCauley, as have I. We've also been in touch with the 
folks at the University of Kansas, the vendor that Alaska 
selected, to try and get at the issues.
    We have, unfortunately, in other States in past years had 
issues around technical glitches. The key thing has been that 
the States and the vendors have worked together to try to 
resolve those as best they can and to ensure that we have an 
assessment system that provides good information to parents and 
teachers each year about student performance. We're going to 
continue to work with Dr. McCauley and the University of Kansas 
and try to see the best path forward.
    Senator Murkowski. I would not disagree that you need to 
try to work through technical glitches, and if I thought these 
were just some technical glitches, I might not be so insistent 
that we have some degree of discretion from you at the 
Department that says this didn't work this year. It has 
materially impacted the validity of this year's assessments.
    I know that you have had prior situations, most 
specifically with the State of Nevada just last year with their 
statewide assessment. The Department allowed the State to 
cancel that test without penalty. I'm told that Nevada just 
received confirmation that there would be no penalty on them 
for canceling the test due to the technical difficulties with 
it.
    I would ask that you look at the situation with Alaska and, 
again, give me the assurance that the Department and your 
Assistant Secretary Designate Whalen and the Department really 
as a whole conduct the same thorough and fair and responsible 
review of the Alaska situation, just as you did with Nevada, 
and give Alaska the opportunity to provide all data and to 
answer all questions in writing before you make any final 
decision as to whether you require them to conduct assessment 
or if, heaven forbid, you should think that any form of penalty 
might be appropriate.
    This is a situation, again, where you had a very 
unfortunate issue in Kansas with a backhoe taking out the cable 
there. We have in Alaska difficulties with broadband access in 
the first place. We are not sitting in the same place as 
Nebraska or Iowa or wherever. We have some very real 
challenges, and we saw that as it started to play out. I would, 
again, urge you to look critically at the situation in Alaska, 
because it certainly does not appear to me that these are 
technical glitches that need to be worked through.
    Secretary King. I can assure you we're taking the same 
approach here as we took in our work with Nevada, and there 
have been some other incidents over the years with States. I 
will say one distinction is that Nevada made a variety of 
efforts to ensure that where it was possible to administer the 
assessment they did so. Again, we're talking with Dr. McCauley 
and trying to make sure that we have a thoughtful approach 
going forward.
    The Chairman. We need to move on.
    Senator Murkowski. If you could make sure that my office is 
looped into that, I would appreciate it as well.
    Secretary King. Absolutely.
    Thank you, Mr. Chairman. I appreciate it.
    The Chairman. Thank you, Senator Murkowski.
    Senator Franken.

                      Statement of Senator Franken

    Senator Franken. Thank you, Mr. Chairman.
    I just came from the Energy Committee, which Senator 
Murkowski is chair of, and we were talking about workforce 
development, and that brings us to STEM, and I want to discuss 
that in a minute. First, I want to thank both the Chairman and 
the Ranking Member for the leadership they showed in putting 
what I call ESSA together. I thought they led a great process, 
and I thank them both.
    Welcome, Dr. King. I want to talk about implementing a 
couple of things that I have in this, so I'll try to do it 
fast.
    The foster kids. I wrote a provision in this with Senator 
Grassley to allow foster kids--and have a mechanism to do it--
to stay in the school that they're in, if they want to, when 
they change foster homes. I've gotten to know foster kids, and 
foster kids very often will have 10, 11, 12 foster sets of 
parents during their youth, during their life.
    When they would change foster parents who might live in a 
different school district, the result often would be that they 
were forced to change schools. This is actually so 
counterproductive because, very often, the school they're in is 
the only constant in their life. It may be a teacher who is a 
mentor, it may be a sport that they're in or an activity 
they're in, and, of course, their friends.
    What Senator Grassley and I did was put in language saying 
if the student chooses to stay in the school, then the school 
district and the social welfare agencies in the area have to 
find a way to allow that student to do it. They have to do it, 
and that may mean paying for the transportation, and they have 
to--the school district and the social welfare agencies in the 
area have to figure it out.
    What I want to make sure is that States are supported as 
they implement this new provision. Will you provide strong 
guidance in this area by this summer?
    Secretary King. Absolutely. This is an important issue to 
me, personally. Having lost both of my parents when I was a kid 
and moved around between family members, I'm very sensitive to 
the challenges that foster kids face and the consequences of 
moving between homes and schools frequently.
    One of the first guidance documents we've committed to 
develop is on issues around foster youth, and we expect this 
summer or fall that we'll be able to put that out. We are 
working very closely with Health and Human Services on this to 
make sure that we stay coordinated on the issues of continuity 
in school, on the kinds of supports that schools can provide, 
issues around transportation and so forth.
    Senator Franken. Thank you. As I said, I just came from the 
Energy Committee. We were talking about advanced manufacturing. 
We were talking about how desperate we are for workers that are 
skilled, especially in science, technology, engineering, and 
math. It was so apparent in this exciting hearing we had on 
advanced manufacturing that this is something we need.
    Nearly all the top 30 fastest growing jobs nationwide 
require STEM skills, but we're lagging behind the rest of the 
world. That's why I wrote the STEM Master Teacher Corps Act to 
recruit topnotch STEM educators and keep them in the classroom. 
The program will provide State grants to recruit, recognize, 
and reward expert STEM educators. This network of STEM 
educators would mentor their peers and participate in 
professional development programs while receiving extra pay for 
their work. This works. We've seen it work in certain States 
that have already done it.
    I'm pleased that there's an optional pot of money in ESSA 
to create a STEM Master Teacher Corps. The new law says it's up 
to the Department of Education to award grants for this 
program. I was pleased that the President's fiscal year 2017 
budget request includes $10 million for this program.
    Secretary King, I just want to make sure that the STEM 
Master Teacher Corps is developed as soon as possible. Do you 
plan on awarding grants for this program, and, if so, what is 
your time table?
    Secretary King. We're very hopeful about the President's 
budget request and want to work with you to advance that. We've 
already begun work with States to think about how they might 
implement a STEM Master Teacher Corps with funding or even with 
existing dollars, and we're very hopeful that the budget 
process will lead to the resources we need to make this program 
a reality.
    Senator Franken. OK. Thank you.
    Mr. Chairman, I see that Senator Scott isn't here. Is he 
returning to ask questions?
    The Chairman. No.
    Senator Franken. I'm the only thing between you and 
gaveling this thing?
    The Chairman. No. We have some questions. We're going to 
have a second round of questions, but if you have another 
question----
    Senator Franken. Can I ask one more question?
    The Chairman. Of course.
    Senator Franken. Dr. King, this is about college. The fraud 
in predatory lending practices at for-profit schools like 
Corinthian College have victimized thousands of students 
nationwide. These students now have a lot of debt, a worthless 
degree, and on top of that, bad credit. To make matters worse, 
the pervasive use of forced arbitration, which is a privatized 
justice system that corporations, including many for-profit 
schools, rely on when their customers or employees seeks 
justice for being mistreated, have prevented students from 
holding for-profit schools accountable in court.
    An investigation of 27 for-profit schools by this committee 
found that 21 of these schools have students sign arbitration 
agreements as part of their enrollment process for any dispute 
that may arise between the student and the school. These 
clauses require that any student who has fallen victim to 
fraudulent activity by a for-profit college, including 
misrepresenting costs, the transferability of credits, the odds 
of obtaining a job or salary prospects, is prevented from 
obtaining meaningful redress. The only recourse these students 
have is to seek relief from the Department of Education.
    Dr. King, knowing what we now know about the widespread 
fraud in the for-profit college industry, how are you going to 
hold bad actors accountable?
    Secretary King. I appreciate that question. In the 
negotiated rulemaking process on borrower's defense, we put 
forward to the negotiators proposals that would ban the 
practice of mandatory arbitration in a variety of contexts. 
That negotiated rulemaking process was not successful in 
reaching consensus. We are now working on the regulations that 
would implement borrower's defense that we'll put out for 
public comment.
    We also have created a new enforcement unit at the 
Department led by a veteran enforcement attorney from the FTC, 
and he's building up the capacity of that enforcement unit 
because we want to ensure that when students seek higher 
education, they get a meaningful education and a meaningful 
degree. We know that there are institutions that aren't doing 
the right thing. We've taken action against some, and we expect 
with this enforcement unit that we'll be able to aggressively 
act with respect to others.
    Senator Franken. OK.
    Thank you for your indulgence, Mr. Chairman.
    The Chairman. Thank you, Senator Franken.
    Senator Murray, I have a few questions, but you're welcome 
to ask any that you would like.
    Senator Murray. I just have a few left.
    Dr. King, during the ESEA reauthorization process, my 
colleagues and I worked hard to make sure that the Department 
retained its congressionally mandated authority to interpret 
and clarify the new law through regulations. Why is the 
authority ED maintains under the new law to clarify statutory 
requirements through rulemaking so critical?
    Secretary King. It's important to ensuring that the law 
actually lives up to its civil rights legacy and advances the 
quality of opportunity in the country. We know that in the past 
there has been a history of States and districts under-
attending to the needs of English learners, students with 
disabilities, students of color, low-income students, homeless 
students, foster kids. This new law gives us the opportunity to 
have lots of State and local flexibility, but there has to be 
guardrails in place to ensure that States and districts protect 
students' civil rights.
    Senator Murray. So that we know wherever a student lives, 
they will have some kind of protection for that.
    Secretary King. That's right. The Department is a civil 
rights agency with a civil rights responsibility to protect the 
students who are most vulnerable.
    Senator Murray. I wanted to ask you one more question about 
English learners. In Tukwila School District, which is in my 
home State, students speak more than 60 languages, and they 
face numerous, very unique challenges learning English and 
succeeding academically. ESSA makes numerous improvements to 
ensure that English learners are supported and that States, 
districts, and schools actually now are held accountable for 
their performance.
    How is the Department planning to support States to make 
sure that they are prepared to implement these new requirements 
with fidelity?
    Secretary King. We think ESSA has many elements that are an 
important step forward for English learners, including 
incorporating English language proficiency into the 
accountability systems, requiring targets for the progress 
students will make to English language proficiency, 
disaggregating the performance of English learners who have 
disabilities and long-term English learners.
    We are working with our negotiated rulemaking committee on 
the assessment regulations that will address the participation 
of English learners and certainly guided in that by the 
feedback we have received from parents and civil rights 
organizations and educators. We also will put out guidance on 
serving the needs of English learners, ensuring that States 
have clarity and examples of best practice on how to follow the 
new law.
    Senator Murray. That's really important, because this is a 
new step for them. I appreciate that. Thank you.
    Thank you very much, Mr. Chairman.
    The Chairman. Thank you, Senator Murray.
    I just have a few more questions, Dr. King. Senator Murphy 
said in his exchange with you that you weren't prescribing a 
methodology in the supplement not supplant section we were 
discussing. You were merely saying that States and local school 
districts could use their own methodology as long as they got 
the result that was desired. Is that right?
    Secretary King. They can use their own methodology in order 
to ensure that they fulfill the principle of supplement not 
supplant.
    The Chairman. In defining what we mean in your proposed 
rule--and I was listening to what you said, too, as you 
described what that role was--would it be accurate to say that 
the local education agency, the school district, has to 
demonstrate that the combined State and local per-pupil 
expenditure, including personnel expenditures at each title I 
school, is not less than the average combined State and local 
per-pupil expenditures in the non-title I schools? Is that 
about right?
    Secretary King. State and local funds to title I schools 
has to be at least equal to the average non-title I school. An 
approach might include looking at staffing and program 
provision, but another approach might be a weighted student 
funding formula approach.
    The Chairman. In any event, it would have to include 
teachers and personnel. Right?
    Secretary King. It would include the total impact of the 
allocation of State and local dollars.
    The Chairman. Did you realize that that's precisely the 
definition in Senator Bennet's amendment on comparability when 
he sought to amend Section 1120, which didn't succeed and which 
he acknowledged this morning didn't succeed? The effect of your 
proposed rule is to change the comparability law which Congress 
did not change.
    Secretary King. Again, we're not addressing comparability 
here. We're addressing the supplement not supplant.
    The Chairman. No, but the effect of it would be. You would 
have the same effect as if you were to change the comparability 
law, which has not been changed since 1970.
    Secretary King. That would depend on the circumstances in a 
given district. The key in the district is that the title I 
dollars would be genuinely supplemental and not used to 
backfill.
    The Chairman. But you're saying that in order to do that, 
the spending in the title I schools, including teacher 
salaries, has got to be not less than the average combined 
State and local expenditures in the non-title I schools. That's 
comparability. That's what we didn't change.
    Secretary King. No. Again, here, because the focus is on 
supplement not supplant, the question is whether or not the 
total local and State effort is at least equal to the non-title 
I school, and a school could address a gap in effort through a 
variety of mechanisms. They could add advanced course work. 
They could add a preschool program. They could take a number of 
strategies. It's not saying that the services need to be the 
same. It's saying that the allocation of title I dollars has to 
be supplemental.
    The Chairman. You're saying the total State and local 
effort for the non-title I schools has to be the same as for 
the title I schools. Right?
    Secretary King. Has to be at least equal to the average 
non-title I school, which, again, could result in variety 
within a district.
    The Chairman. Which, again, is comparability. That's what 
comparability is. I sought to change it by introducing an 
amendment to do what Senator Burr suggested, allowing Federal 
dollars to follow children from low-income families to the 
school they attend. That was rejected. Senator Bennet had his 
amendment.
    The changes in the supplement not supplant law are to some 
extent, maybe a large extent, due to recommendations directly 
from the Center for American Progress, the Federal Education 
Law Group, and the American Enterprise Institute. I'm going to 
read you a paragraph, which they said, and ask you to comment 
on it.
    They said, quote, ``It's important that the proposed 
change''--the one that was made, that we made in supplement and 
supplant--``would not look at whether the amount of State and 
local money a title I school receives is equitable. Given the 
significance of the problems caused by the supplement not 
supplant test, this issue should be addressed on its own, 
separate from other title I fiscal issues. Concerns over equity 
can be addressed through title I's comparability requirement.''
    What would you say to that?
    Secretary King. Part of what they're referencing is the 
number of problems that we saw with the supplement not supplant 
approach under No Child Left Behind, that, indeed, it was a 
burdensome process that did not achieve the desired goal of 
ensuring that title I dollars are supplemental. We're not 
making a change to comparability. We're making a change to 
supplement not supplant to reflect a change in law.
    Supplement not supplant is different under ESSA than under 
NCLB, and we were asked by a variety of stakeholders to provide 
clarity on implementation of supplement not supplant under 
ESSA, and that's what we've proposed to the negotiated 
rulemakers.
    The Chairman. What you've proposed must have the effect of 
equal spending of State and local dollars in title I schools as 
well as non-title I schools before you get the title I money. 
Isn't that correct?
    Secretary King. It does not require equal spending. It 
requires that the State and local funds in title I schools are 
at least what is being spent in State and local funds in the 
average non-title I schools. In a given district, you would see 
still variety within that district.
    The Chairman. That equalizes spending. If you say you've 
got to spend at least as much here as the average of here, 
that's what we call comparability, isn't it?
    Secretary King. No. The decision to use the average non-
title I school means that there would be a variety of spending 
levels in the non-title I school.
    The Chairman. Section 1605 of the law says nothing in this 
title shall be construed to mandate equalized spending per 
pupil for State, local educational agency or school. What would 
you say to that?
    Secretary King. Again, this wouldn't equalize spending. 
What it would say is that in the title I school, you've got to 
be spending at least as much in State and local resources as is 
spent in the average non-title I school. There would be a range 
of spending levels within non-title I schools, so you would not 
be requiring districts to spend the same in all schools. You 
would be ensuring, importantly, that the title I dollars are, 
in fact, supplemental and not being used to backfill.
    The Chairman. There are plenty of ways to figure that out 
without equalizing spending. This sounds to me exactly like the 
kind of thing the Department got into with academic standards 
with Common Core. You basically said States didn't have to 
adopt Common Core, but then you came up with a requirement 
that, in effect, required them all to do it, and it produced an 
enormous backlash, which was a big part of the passage of this 
law.
    I would urge you to look carefully at this supplement not 
supplant negotiated rulemaking proposal, which is in an early 
stage, because, in my view, it violates the unambiguous 
prohibitions that were in the law that the President signed in 
December related to prescribing State and local funding 
methodologies, mandating equalizing spending--you're not 
supposed to do that--interfering with State and local programs 
of instruction--prohibited from doing that--or controlling the 
allocation of State and local resources.
    It ignores Congress' intent, which was to not change the 
requirements on comparability. It regulates outside the scope 
of the supplement not supplant requirement. It would impose 
unprecedented burdens on State and local school districts, 
requiring an overhaul of almost all the State and local finance 
systems, giving districts few options other than forcing the 
transfer of teachers to new schools, perhaps in direct conflict 
with collective bargaining contracts with teachers' 
organizations, and it would require States to move back to the 
burdensome practice that we had before. As I mentioned earlier, 
according to the Great City Schools Council, it would cost $3.9 
billion just for the 69 urban school districts to address State 
and local funding disparities, $9 million in the department 
alone.
    I have only one other question--flexibility for eighth 
grade students taking advanced math. One thing we heard about 
more than anything else in this reauthorization was over 
testing and more flexibility in testing, and we thought we 
provided that. The new law permits a State to allow eighth 
grade students to take the end of the year test for passing the 
advanced math test in place of the eighth grade test.
    In other words, if you're an eighth grader, and you can 
take algebra 2, you can take that instead of the basic eighth 
grade test. That just makes common sense, and, in fact, the 
Department's waivers allowed that. You are proposing to add a 
new requirement, one that you apparently just made up, which 
says a State can be granted this flexibility only if it 
demonstrates that it offers all students in the State the 
opportunity to be prepared for and to take advanced mathematics 
course work in middle school.
    Where did that come from? That's not in the law.
    Secretary King. This is being discussed by the negotiators. 
The key question here is to the extent that opportunities are 
to be equitably provided to access advanced course work. We 
know, for example, that there are high schools around the 
country serving large numbers of low-income students of color 
that don't even offer algebra 2 or chemistry. We know that 
there are middle schools serving high numbers of low-income 
students of color that don't even offer access to the algebra 
course.
    If you're going to have an assessment system that provides 
comparable information about equitable access to opportunity in 
schools, you need to ensure that students have that 
opportunity. For a school to not offer students access to that 
advanced course means that you are then using the assessment 
system to, in a sense, reify inequitable access----
    The Chairman. Dr. King, if you'll excuse me, if you were a 
U.S. Senator on the floor of the Senate, that would be a very 
good and persuasive argument, but you're not. We could have 
written that into the law, but we didn't. We basically said 
that a State may allow an eighth grade student who is taking an 
advanced math course to take it and not have to take the test 
in the basic course at the same time.
    You've come along and said,

          ``That's an interesting idea, and we think it would 
        also be good to make all the States and 100,000 public 
        schools change the way they offer advanced math courses 
        to include a lot more students.''

    That may be a noble aspiration, but it's not in the law. 
For adding this requirement to money that constitutes about 4 
percent of what State and local governments spend on 100,000 
public schools--those decisions ought to be left to the elected 
officials, not to people in your Department.
    Secretary King. You can't get comparable, valid, reliable 
information about student performance if the assessment is only 
available to some students and not others. The goal here is to 
ensure that the assessment system provides comparable----
    The Chairman. You're not in charge of the accountability 
system. In fact, the law requires that the result of those 
tests be a part of the State's accountability system. What 
we're trying to get rid of is you here telling States what to 
do with the results of tests. It must have made common sense to 
say that if you're an eighth grade student taking an advanced 
math course that you can take it and you don't have to also 
take the basic eighth grade test, period. The Department 
allowed States to do that in the waiver. Why are you making 
this up now?
    Secretary King. The design of the accountability system--
yes, there is State flexibility around the accountability 
system, but the States are to generate comparable information 
about the performance of students within any given grade. If 
you've got an assessment that's available only to some 
students----
    The Chairman. Who's going to decide that? Are you going to 
decide that?
    Secretary King. States would decide how that would work in 
their districts.
    The Chairman. Why not let them decide it?
    Secretary King. We are.
    The Chairman. No, you've said in your proposed rule--and I 
won't belabor it any further. I hope you'll go back and take a 
look at this. You've basically put in a new requirement that 
you can only take this flexibility Congress gave if you do what 
the Department now wants to legislate, describe that you offer 
all students in the State the opportunity to be prepared for 
and take advanced mathematics course work in the middle 
schools. It's kind of hard to know what that would mean, 
anyway.
    You were asked by one of the Senators--do you have anything 
else to tell us about--you sent proposed regulations to the 
Office of Management and Budget last week on accountability 
systems, State plans, innovative assessment pilot. When are you 
going to make details of those proposals public? What's your 
intended timeline for final regulations, and what can you tell 
us about other areas of the law that you intend to issue 
guidance on and provide technical assistance?
    Secretary King. The accountability regulations are now with 
OMB for review. We expect later this spring or early summer 
that those regulations will be posted for comment. We will 
later develop regulations based on the input that we have 
received from stakeholders on State plans and on the innovative 
assessment pilot. We expect those regulations to be out for 
public comment in the fall.
    The goal is to have all the regulations in place by the end 
of the year so that States are in a position to develop plans 
in spring and summer of next year, submit those plans in spring 
or summer of next year so that they are ready for full 
implementation in September 2017. We've also committed to 
develop guidance on services for homeless students, foster care 
students, and English learners.
    We're continuing to gather feedback and input from 
stakeholders, and we'll potentially develop additional guidance 
documents based on what States, districts, educators, parents, 
civil rights organizations are telling us they need in order to 
ensure clarity and have examples of best practice.
    The Chairman. Thank you, Dr. King. I hope you'll reflect on 
this hearing today. We have many different opinions on this 
committee, and we were able to come to a law. Each of us can 
speak for ourselves, but for me, it's very clear that we did 
not intend that you come up with some clever way to use one 
provision, the supplement not supplant provision, to change 
another provision, the comparability provision, that we 
deliberately did not change because we couldn't agree on how to 
change it. We left the law exactly like it is.
    I hope you'll take another look at that. Your 
responsibility is to faithfully execute the law and abide by 
the letter of the law, and I don't think the beginning of those 
rule proposals suggest that that's what some of the employees 
are doing. We'll look forward to following the implementation 
of the law carefully during the rest of the year.
    If there are no other questions--let me get my concluding 
comments here. The hearing record will remain open for 10 
business days. Members may submit additional information and 
questions to our witness for the record within the time if they 
would like.
    Thank you for being here, Dr. King.
    The committee will stand adjourned.

    [Whereupon, at 11:53 a.m., the hearing was adjourned.]

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