U.S. Department of Education Continues Negotiated Rulemaking

The U.S. Department of Education has announced its third and final meeting of its Negotiated Rulemaking Committee, set for April 18-19, next Monday and Tuesday. The Committee will continue to work on the areas that have so far stymied them in terms of coming to consensus on rulemaking language: English Language Learners and their proficiency assessments; alternate assessment rules for students with the most significant cognitive disabilities; inclusion of students with disabilities in academic assessments; the exception for advanced mathematics assessments in 8th grade; computer adaptive tests, and supplement, not supplant rules for Title I-A funding. The meeting agenda and related draft rules can be found here.

The National Association for Music Education has provided written commenton supplement, not supplant as part of the first committee meetings, held March 21-23, 2016. The comments reflect our support for flexibility in interpreting the law, especially in the area of site-based managed schools.

Supplement, not Supplant: Congress Takes Notice

As the Committee has continued to debate these rulemaking issues, no topic has been of more interest to the education community and to Congress than ‘supplement, not supplant.’ While a somewhat esoteric section of the law, rules regarding supplement, not supplant dictate whether a district is in compliance with the supplemental use of federal funds. Congress, particularly Senator Lamar Alexander, one of the two main architects of the new Every Student Succeeds Act (ESSA), has been concerned that the U.S. Department of Education, through its rulemaking process, is limiting the flexibility Congress wished to be afforded to states and districts in determining how to utilize their Title I funds. During hearings with U.S. Secretary of Education, John King, on Tuesday, April 12, Senator Alexander spent several minutes quizzing the Secretary about the Education’s approach to this fiscal policy. Democrats came to the defense of the Secretary, emphasizing the need to hold districts accountable for funding their schools equitably with state and local funds prior to utilizing federal dollars for the most at-risk populations – students of poverty, one Senator describing this as defining the “guardrails” for the use of the federal education dollars.

The updated draft rules for supplement, not supplant reflect an increase in flexibility for districts, including a process by which districts can rebut a supplanting finding by either a state department of education or the U.S. Department of Education, as well as the idea that multiple findings within 3 years are necessary prior to a district returning funds to the federal government when found out of compliance. These additions, attempting to maintain the flexibility of the law, have not placated Senator Alexander, however. Politico reports Alexander stating “The law Congress wrote, the president signed and that teachers, governors, parents and other educators worked so hard to enact last year, appears to have no meaning to unelected bureaucrats who still seem determined to act as a national school board for 100,000 public schools. I will use every tool at my disposal to see that this law is implemented the way Congress wrote it, and I hope others will join me.”

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