U.S. Department of Education Concludes Negotiated Rulemaking

Negotiated rulemaking collapses on Supplement, not Supplant; U.S. Department of Education to now write the rules on their own

The recent negotiated rulemaking process that has been playing out on Supplement, not Supplant has collapsed, and the U.S. Department of Education now anticipates writing rules on their own.

USED’s Negotiated Rulemaking Committee met for its third and final round on Monday and Tuesday of this past week, April 18-19. The Committee, made up of a variety of stakeholders, including lay people, educational leaders, civil rights leaders, and administrators, had an extremely difficult task set in front of it: to finalize rulemaking language around a variety of assessment issues as well as Supplement, not Supplant, part of the rules for Title I-A funding. After 2 very contentious days, including a mid-day break on Tuesday in order to try and hold the Committee together, negotiated rules were created for all the assessment areas. Of interest is the nuanced language around students with the most significant cognitive disorders, and that PARCC and Smarter Balanced will be included in the list of accepted national assessments which districts could select for their high schools to use instead of their state level assessments. This announcement, ironically, came a day prior to New Jersey having to suspend all of its PARCC testing due to glitches with the online testing platform.

Supplement, not Supplant now back in the hands of the Department

After a week of battles with Congress around the draft Supplement not Supplant language (see for more details), the U.S. Department of Education’s 3rd and final attempt at negotiated rulemaking language fell apart during this week’s Committee meeting. On one side were state and local administrators, concerned that the language would tie the hands of districts, and potentially force them to move teachers in order to meet the proposed rule language from the Department which deals with a “per pupil amount of state and local dollars in each Title I school that is equal to or greater than the average amount spent per pupil in non-Title I schools.” Civil rights leaders, on the other hand, want to make certain that the federal funds are truly supplemental, and going to support the most vulnerable of our nation’s school children. They favored this type of specificity in the rulemaking language. Administrators on the Committee offered language utilizing other measures of state/local fund investment in schools, such as “FTE” counts of teachers, but they couldn’t sway the Education Department.

With the Committee unable to find consensus, the Supplement, not Supplant rulemaking now falls back into the hands of the U.S. Department of Education. The public will have an opportunity to review and comment on the language once it is posted through the formal rulemaking procedure. We are currently awaiting the posting of the draft rules around accountability systems, which are now under review by the Office of Management and Budget prior to being published for public comment.

NAfME and the Rulemaking Process

The National Association for Music Education has been monitoring and responding to the rulemaking activities at the U.S. Department of Education in a variety of ways, including:

  • Creating public comments around Supplement, not Supplant, in particular urging the U.S. Department of Education to create flexibility for states and districts, especially given the prevalence of “local control” budgetary and programmatic decisions being made at the school building level instead of at the district level.

Lynn Tuttle, Senior Regulatory Policy Advisor, Center for Advocacy, Policy, and Constituency Engagement, April 16, 2016. © National Association for Music Education (NAfME.org)