Response to SnS Regulations

November 7, 2016

Mr. James Butler
U.S. Department of Education
400 Maryland Avenue, SW, Room 3W246
Washington, DC 20202-2800

Docket ID: ED-2016-OESE-0056

Dear Mr. Butler:

The California Department of Education (CDE) and the California State Board of Education (SBE) appreciate the opportunity to provide input regarding the U.S. Department of Education’s (ED) proposed Title I – Improving the Academic Achievement of Disadvantaged – Supplement Not Supplant regulations, which are important to ensuring that resources provided by Title I are directed to support our high-needs students.

By way of context for California’s comments, in 2013 the state embarked on a significant overhaul of how it provided resources to districts through the Local Control Funding Formula (LCFF) and created a framework for a multiple measures accountability system focused on eight state priority areas. At the heart of this fundamental change is increasing local control and flexibility, while emphasizing equity, continuous improvement, and support. Under LCFF, local educational agencies (LEAs) receive base funding for each student they serve with additional funding provided for each high-needs student—defined as low income students, English learners, and foster youth—and additional funding for each high-needs student when the concentration of those students in an LEA exceeds 55 percent.

With respect to the continuous improvement aspect of California’s framework, LEAs must engage in strategic planning to adopt and annually update three-year Local Control and Accountability Plans (LCAPs) that focus on how they will meet each of the eight state priorities and more effectively serve high-needs students. This system is centered on the concept, which would apply in other states as well, that local decision-makers have a more complete understanding of students’ needs in their respective communities than state policymakers. This approach provides LEAs the flexibility to allocate resources in a manner that results in effective educational practices, takes into account the wide range of factors that affect school-to-school funding, and ensures a more strategic and thoughtful approach to resource allocation than dictating a formula outside of that local context.

PROPOSED SUPPLEMENT NOT SUPPLANT METHODOLOGIES

California shares ED’s commitment to educational equity. In addition, California recognizes the importance to ensure that all recipients of federal funds comply with the “supplement not supplant” provisions of the Elementary and Secondary Education Act (ESEA), as modified by the Every Student Succeeds Act (ESSA). Furthermore, California recognizes that as a condition of receiving federal funds under ESSA, state educational agencies, on behalf of LEAs, have an obligation to not only provide assurances that they will adhere to this statutory requirement in their applications to the federal government, but that they will also faithfully execute this responsibility by requiring LEAs to specify their use of funding allocations/methods for compliance and through regular monitoring to ensure that local actions are reflective of their pledged use(s) of these supplementary funds.

However, California believes that the proposed regulations exceed the statutory requirements in ESSA, which specifically stipulates in Section 118(b)(4) that “Nothing in this section shall be construed to authorize or permit the Secretary to prescribe the specific methodology a local education agency uses to allocate State and local funds to each school receiving assistance” [emphasis added] under Title I. By specifying that an LEA must report to the state educational agency (SEA) that they are not supplanting State and local funds utilizing one of the prescribed methodologies, the proposed regulations violate this provision of ESSA. Prescribing multiple potential methodologies does not render this point moot. Therefore, we recommend that the sections specifying the methodologies—Section 200.72(b)(1)(ii) and 200.72(b)(2)—be eliminated from the final regulations.

While the proposed regulations do not require a specific methodology, they will limit the alternatives that LEAs could use for complying with this provision of ESSA. According to the U.S. Senate Committee on Health, Education, Labor, and Pensions’ analysis of the ESEA reauthorization, an LEA could comply with supplement not supplant requirements if “they can document the manner in which they allocate state and local resources to schools that is ‘Title I neutral’.” The proposed regulations are far more restrictive than what was envisioned by legislators when they were approving the changes in federal law, as described by that analysis. Further, the proposed regulations invariably would result in districts changing their allocations from what they would have done in the absence of Title I.

Moreover, Section 200.72(b)(1)(ii) has the effect of prescribing how State and local funds are allocated locally; this is clearly prohibited by ESSA, which restored decision-making to the State and local levels. The proposed regulations require LEAs to “distribute almost all State and local funds” [emphasis added] in a manner that meets one of the proposed tests prescribed. ESSA statute – Section 1118(b)(2) – does not distinguish whether all or “almost all” funding must be allocated by this methodology. In addition, the meaning of the phrase “almost all” is unclear, and leaves States and districts with questions as to what might be excluded from this calculation in addition to the designated exemptions.

As an overarching concern, the proposed regulations require states to reshape their underlying school finance system by requiring LEAs to ensure equality of funding to school sites, which is rarely used, if at all, by states’ funding systems, as a condition of receiving federal funds. Such requirements have never been imposed for the prior 50 years since the federal law was originally enacted in 1965. California acknowledges that supplanting through the use of federal ESEA funds has been an issue since the inception of the ESEA in 1965, but the prescriptive approach proposed by the regulations is not the appropriate solution. California reiterates that states have a responsibility under the law to ensure that there is no supplanting of federal funds; that is, states must be the “eyes and ears” in their jurisdictions to ensure that ESSA funds are allocated with the spirit of law in mind and that each LEA uses the federal funds to supplement appropriate and ongoing activities.

Recommendation: Determining the methodology for LEAs to meet the supplement not supplant requirement should be determined by the SEA. Therefore, California recommends removing Subsection 200.72(b)(1)(ii) through Subsection 200.72(b)(2) from the final regulations, as they exceed federal statute, and specifying the SEA shall determine the methodology for LEAs to meet supplement not supplant requirement, subject to a federal peer review process as described in Subsection 200.72(b)(1)(ii)(C). All other subsections should be finalized as written, with corresponding modifications, as they provide important flexibility and clarification for LEAs and SEAs.

TRANSITION TIMELINE

California supports the proposed timeline (Section 200.72(b)(3)) in the draft regulations that would provide LEAs some flexibility in complying with supplement not supplant requirements by 2018–19 or 2019–20, and is consistent with ESSA. However, all other references to adopt a prescribed methodology should be eliminated.

Recommendation: California recommends amending Section 200.72(b)(3) to remove all references that require compliance with the supplement not supplant provision utilizing a specific methodology.

RULES OF CONSTRUCTION

The rules of construction in Section 200.72(b)(4) state that the proposed regulations shouldn’t be construed to require forced or voluntary transfer of school personnel; however, this will be unavoidable if a district cannot generate enough new resources to allocate to sites that have lower than district-average salaries under the prescribed methodologies. ED concedes this shortcoming later in the proposed regulations by stating that some LEAs will have to shift spending and budgeting practices: “Some LEAs will need to increase funding for some title I schools either by increasing total funding or by redirecting funding within the LEA.” Therefore, California believes that the Rules of Construction for Section 200.72(b)(4) are meaningless, given the practical implications of the proposed methodologies, and is all the more reason that the proposed regulations must abide by the underlying statute and allow SEAs and LEAs to determine the most appropriate means to address federal requirements. Further, this could result in staffing decisions being made for accounting purposes and not what is a better decision based on a teacher’s skills or expertise or what is in the best interest of students.

Recommendation: California recommends that the proposed methodologies be struck from the final regulations, as noted above.

REGULATORY IMPACT ANALYSIS

In reviewing the Fiscal Impact Analysis, ED’s estimates significantly understate the impact on California and likely many other states. The analysis estimates that it would take approximately 48 hours to develop a method for almost 2,000 LEAs in California. This estimate is a gross underestimation of the actual time it would take to develop such a method. In addition, ED’s estimate that at least 90 percent of LEAs would be able to comply with the proposed regulation without any change in current allocation practices using the 2013–14 Civil Rights Data Collection, which hasn’t been validated to ensure that it accurately captures all spending that benefits a school.

Further, these data are of questionable validity and reliability, particularly for LEAs in California where school-level accounting is not uniformly practiced. ED’s estimate that one-third of LEAs that currently would not be in compliance would need to transfer more than one percent of state and local funds to comply is based on those same questionable data. Finally, most schools districts in California would need to monitor their compliance with the proposed regulations, including those districts that may comply under the proposed special rule. Therefore, we believe that ED’s projection that only 1,500 LEAs would incur administrative costs to demonstrate compliance, and that they will only need to do so one time, is also grossly underestimated.

California appreciates the opportunity to provide feedback, as these regulations will have a significant impact on our state’s ongoing efforts to ensure that districts have the flexibility they need to support California’s highest needs’ students.

If you have any questions regarding the content of this letter, please contact
Debra Brown, Director, Government Affairs Division, California Department of Education, by phone at 916-319-0561 or by e-mail at dbrown@cde.ca.gov.

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