[Congressional Record (Bound Edition), Volume 162 (2016), Part 5]
[Senate]
[Pages 6953-6954]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       EVERY STUDENT SUCCEEDS ACT

  Mr. ALEXANDER. Mr. President, I ask unanimous consent to have printed 
in the Record a copy of my opening statement last week to the HELP 
Committee regarding oversight of the Every Student Succeeds Act.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Oversight of The Every Student Succeeds Act

       Mr. ALEXANDER. I'm delighted to have the witnesses here. 
     This is an extraordinary group of individuals with broad 
     prospective of children and elementary and secondary 
     education. And we welcome your comments on how to implement 
     the new reauthorization of the Elementary and Secondary 
     Education Act.
       This is our third of six hearings to discuss the 
     implementation of the Every Student Succeeds Act, which the 
     President signed in December.
       It's the second opportunity for this committee to hear from 
     the states, school districts, teachers, principals, and 
     others that helped us pass this overwhelmingly bipartisan law 
     and are today working together to implement it in a way that 
     is consistent with congressional intent.
       I want to focus my remarks on the administration's proposed 
     ``Supplement Not Supplant'' regulation.
       This is the very first opportunity the administration has 
     to write regulations on our new law. And in my view, they 
     earned an `F.'
       The reason for that is that the regulation violates the law 
     as implemented since 1970, and seeks to do it in a way that 
     is specifically prohibited in the new law.
       In writing the new law last year, Congress debated and 
     ultimately chose to leave unchanged a provision in the law 
     referred to as ``comparability.'' That's section 1605.
       This provision says: school districts have to provide at 
     least comparable services with state and local funding to 
     Title I schools and non-Title I schools.
       But--the law plainly states that school districts shall not 
     include teacher pay when they measure spending for purposes 
     of comparability. That's been the law since 1970. We didn't 
     change it last year.
       There's an entirely separate provision, known as 
     ``Supplement Not Supplant'' that's intended to keep local 
     school districts from using federal Title I dollars as a 
     replacement for state and local dollars in low-income 
     schools.
       What the department's proposed ``Supplement Not Supplant'' 
     regulation attempts to do is to change ``comparability'' by 
     writing a new regulation governing ``Supplement Not 
     Supplant.''
       In other words, their proposal would force school districts 
     to include teacher salaries in how they measure state and 
     local spending, and would require that state and local 
     spending in each Title I school be at least equal to the 
     average spent in non-Title I schools.
       The effect of this would be to violate the law as 
     implemented since 1970, section 1605.
       So, the administration may get an ``A'' for cleverness, but 
     an ``F'' for following the law, in my opinion.
       The negotiated rulemaking committee couldn't agree on the 
     proposal. At least one member, Tony Evers, a witness today, 
     said that ``Congressional intent isn't necessarily being 
     followed here.''
       Last week, the nonpartisan Congressional Research Service 
     said the same thing.
       CRS issued a report that said quote, ``the Department's 
     interpretation appears to go beyond what would be required 
     under a plain language reading of the statute.''
       CRS found that the proposed [supplement, not supplant 
     regulations ``appear to directly conflict'' with statutory 
     language that ``seems to place clear limits on [the 
     Department's] authority'' and ``thus raises significant 
     doubts about [the Department's] legal basis for proposed 
     regulations.''
       Today, I am looking forward to hearing from witnesses 
     whether what I have been hearing from principals, teachers, 
     and education leaders across the country is true. Here's what 
     I've been hearing:
       1. That the department's proposed regulation could turn 
     upside down the funding formulas of almost all the state and 
     local school systems across the country.
       Most states and local districts allocate K-12 finding to 
     schools based on staffing ratios.
       This often results in different amounts going to different 
     schools in the same district because teacher salaries vary 
     from school-to-school for reasons having nothing to do with a 
     school's participation in Title I.
       Instead, salaries vary because of teacher experience, merit 
     pay, or the subject or grade level they teach.
       2. I've been hearing that proposed regulation could 
     effectively require wholesale transfers of teachers and the 
     breaking of collective bargaining agreements.
       3. I've been hearing that school districts won't receive 
     enough funds to comply with the proposed regulation.
       4. That students could be forced to change schools.
       5. That the proposed regulation could increase the 
     segregation of low-income and high-income students.
       6. That it could require states and local school districts 
     to move back to the burdensome practice of detailing every 
     individual cost on which they spend money to provide a basic 
     education program to all students, which is exactly what we 
     were trying to free states and districts from, when we passed 
     the law.
       According to the Council of Great City Schools, the 
     proposed regulation would cost $3.9 billion a year, just for 
     their 69 urban school systems to eliminate the differences in 
     spending between schools.
       What the department has done for the first time is to try 
     to put together two major provisions of the law that have 
     always been separate.
       On comparability, (which is the first one):
       Members of this committee discussed and debated changing 
     this provision at great length over the past 6 years. We 
     discussed it at great length over the last six years.
       Senator Bennet of Colorado has lots of experience with 
     this, had one proposal. I had another.
       We ultimately decided not to make any changes in 
     comparability.
       Instead, we included more transparency, in the form of 
     public reporting, on the amount districts are spending on 
     each student, including teacher salaries, so that parents and 
     teachers know how much money is being spent and can make 
     their own decisions about what to do, rather than the federal 
     government mandating it be used in comparability 
     calculations.
       Then on the second provision in the law, on ``Supplement 
     Not Supplant'':
       We addressed this provision and made changes with an effort 
     to simplify the law, and not make it more complicated.
       By no stretch of the imagination did we intend, does any of 
     the language in the law say, that ``Supplement Not Supplant'' 
     would be used to modify the ``comparability'' provision.
       In fact, we specifically prohibited that. We prohibited 
     expressly:
       The Secretary from requiring local school districts to 
     identify individual costs or services as supplemental
       We Prohibited the Secretary from prescribing any specific 
     methodology that local school districts use to distribute 
     state and local funds
       Most importantly, we prohibited the Secretary from 
     requiring a state, local school district, or school to 
     equalize spending.

[[Page 6954]]

       The proposed regulation is nothing less than a brazen 
     effort to deliberately ignore a law that passed the Senate 85 
     to 12, passed the House 359-64, and was signed by the 
     president.
       No one has to guess what the law says. As the Congressional 
     Research Service says--we can just read its plain language.
       And if the administration can't follow language on this, it 
     raises grave questions about what we might expect from future 
     regulations.

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